West Cumbria Mining update
I've been asking my colleagues on the county council whether there is any news yet on when the new planning proposals from West Cumbria mining might come to a special meeting of the Development Control and regulatory committee of CCC.
My understanding is that it is impossible to give a definite date until the consultation period ends on 15th June and it is then possible to assess the representations received. A provisional date has now been given to the Whitehaven News for the meeting, which is not a firm guarantee but a best estimate of when a decision might come to committee if all goes to plan.
A council spokesman told the paper
“Cumbria County Council welcomes the decision on behalf of Keep Cumbrian Coal in the Hole to withdraw from the judicial review proceedings. We stand by our belief that all planning procedures and considerations were correctly followed throughout by the council. We therefore believe it would be in no one’s interests to hold a lengthy and costly judicial review into this case.
“West Cumbria Mining has revised their planning application so that only metallurgical coal will now be exported from the mine. In the original application it was envisaged that up to 15 per cent of all coal extracted would be middlings or industrial coal. This coal will now be reprocessed to remove sulphur content so that it can be classified as metallurgical coal.
WCM have also taken the opportunity to provide a greenhouse gas emissions plan and to respond to the findings of a Green Alliance report. The revised application is expected to be considered at a meeting scheduled to be held on July 8.”
Also in the same article there are some more quotes from the "Keep Cumbrian coal in the hole" people who brought and have now withdrawn their Judicial Review request.
Gary Bullivant has been posting things in the comments field of this blog trying to explain what the campaign group is up to.
Gary's explanations would make sense if they matched what the campaign group are saying.
Unfortunately the quotes from "Keep Cumbrian Coal in the hole" in the Whitehaven News do not line up with what Gary writes and make no sense at all.
Ms Birkby of the group told the Whitehaven News that:
"We have in effect achieved what we first set out to do, which was to overturn the council’s unanimous decision to approve the coal mine."
No they haven't. That is nonsense.
If the new and revised application is approved West Cumbria Mining will have permission to proceed on the new basis.
If the new application is not approved West Cumbria Mining will still have planning permission to proceed on the basis of the original unanimous committee decision, unless the campaign group re-start the judicial review and win it.
Personally I don't support the Judicial review and agree with the County council statement quoted above.
If the objectors think that the revised application resolves their original concerns, then it makes no sense to oppose the proposed changes to the application, which the campaigners say they are doing.
If the revised application does not resolve the original concerns, then the new application is not in itself a good reason to withdraw the Judicial review.
The reason for the withdrawal suggested by Gary Bullivant, in the comments section of this blog, was that, quote
"West Cumbria Mining has submitted proposals to modify the original application in ways that seek to address the points that were used to justify the judicial review. Of course the review has been withdrawn"
which makes sense if you think that the revised application successfully addresses those points. But,
My understanding is that it is impossible to give a definite date until the consultation period ends on 15th June and it is then possible to assess the representations received. A provisional date has now been given to the Whitehaven News for the meeting, which is not a firm guarantee but a best estimate of when a decision might come to committee if all goes to plan.
A council spokesman told the paper
“Cumbria County Council welcomes the decision on behalf of Keep Cumbrian Coal in the Hole to withdraw from the judicial review proceedings. We stand by our belief that all planning procedures and considerations were correctly followed throughout by the council. We therefore believe it would be in no one’s interests to hold a lengthy and costly judicial review into this case.
“West Cumbria Mining has revised their planning application so that only metallurgical coal will now be exported from the mine. In the original application it was envisaged that up to 15 per cent of all coal extracted would be middlings or industrial coal. This coal will now be reprocessed to remove sulphur content so that it can be classified as metallurgical coal.
WCM have also taken the opportunity to provide a greenhouse gas emissions plan and to respond to the findings of a Green Alliance report. The revised application is expected to be considered at a meeting scheduled to be held on July 8.”
Also in the same article there are some more quotes from the "Keep Cumbrian coal in the hole" people who brought and have now withdrawn their Judicial Review request.
Gary Bullivant has been posting things in the comments field of this blog trying to explain what the campaign group is up to.
Gary's explanations would make sense if they matched what the campaign group are saying.
Unfortunately the quotes from "Keep Cumbrian Coal in the hole" in the Whitehaven News do not line up with what Gary writes and make no sense at all.
Ms Birkby of the group told the Whitehaven News that:
"We have in effect achieved what we first set out to do, which was to overturn the council’s unanimous decision to approve the coal mine."
No they haven't. That is nonsense.
If the new and revised application is approved West Cumbria Mining will have permission to proceed on the new basis.
If the new application is not approved West Cumbria Mining will still have planning permission to proceed on the basis of the original unanimous committee decision, unless the campaign group re-start the judicial review and win it.
Personally I don't support the Judicial review and agree with the County council statement quoted above.
If the objectors think that the revised application resolves their original concerns, then it makes no sense to oppose the proposed changes to the application, which the campaigners say they are doing.
If the revised application does not resolve the original concerns, then the new application is not in itself a good reason to withdraw the Judicial review.
The reason for the withdrawal suggested by Gary Bullivant, in the comments section of this blog, was that, quote
"West Cumbria Mining has submitted proposals to modify the original application in ways that seek to address the points that were used to justify the judicial review. Of course the review has been withdrawn"
which makes sense if you think that the revised application successfully addresses those points. But,
- If it does, why oppose the revised application?
- If it doesn't, why withdraw the judicial review?
I suspect the real reason the judicial review has been withdrawn may be that the new application has been used as an opportunity to rethink after an astute lawyer told them that proceeding with the judicial review would cost an enormous amount of money and be unlikely to succeed.
If so, that was a wise decision, because I think that is precisely the advice that a good lawyer would give them, and that such advice would very probably be right.
Comments
Of particular note is that:
"Cumbria County Council has now confirmed that it will no longer rely on the resolution decision being challenged in the judicial review proceedings. However, Ms Bennett’s legal team at Leigh Day solicitors believes that WCM has submitted the revised planning application to defeat the legal challenge. They have agreed with Cumbria County Council and WCM that the claim will be withdrawn. They will now seek costs on behalf of Ms Bennett from Cumbria County Council and WCM."
If her lawyers believe that to be the truth of the situation then you can see why Ms Birkby (Mrs Bennett) said she felt vindicated. If they are misleading her then she will have something of a shock when costs are awarded against her. Not too much of a shock mind you because there is an international convention that limits the liability of private citizens challenging projects on environmental grounds.
For my part I'm sceptical of this company's ability to remove the middling coal from their marketed product without loss of tonnage as they are claiming to do but with little explanation as to how this will be done. I also note that they are again seeking to relax the specification of metallurgical coal and to remove the condition that the coal will only be used only for steelmaking.
If you take an ideological view of the application, e.g. that you want to stop the mine on princple for reasons which have everything to do with political ideology and little or nothing to do with the details of the application, then the grounds quoted in the challenge will just be a means to that end and you might, I suppose, see addressing them, as an attempt to "frustrate" or "defeat" your political objective.
That neither is, nor should be, how it will be looked at by a planning committee, a planning inspector or a court.
The County Council's planning committee will not be looking at this application in terms of whether it is an attempt to stop the judicial review, and they would not be acting lawfully if they did look at it in those terms. They will be considering whether it improves the application in terms of harm done to the local environment or other interests of acknowledged importance. That will indeed include assessing, on the basis of a report prepared by the officers, whether the proposed treatment of "middling" coal to remove sulphur is realistic and workable.
If the revised application successfully addresses the issues raised in the judicial review, then a court would not see that as frustrating the judicial review but as resolving the problem which led to it.
I looked up the link provided by Gary and read through the press release carefully looking for any indication of what conceivable basis KCCH could possibly imagine that costs could be awarded against the County Council.
There does not appear to be any such reason given.
You can't launch a legal action, drop it, and expect the people you have taken legal action against to refund your costs unless you have evidence - not an opinion, evidence - that they have done something wrong which cost you that money.
The fact that someone took a decision you strongly disagree with does not count.
To get a costs award against a local authority you usually have to demonstrate some form of maladministration, failure to follow correct procedures, failure to take any account at all of something which should have been considered, or moving the goalposts in a way which generated extra costs for the aggrieved party.
Cost awards against objectors are extremely rare but they do happen: a bit over a decade ago one of my former constituents in the then Bransty ward of CBC was ordered to pay thousands of pounds after objecting to an application in respect of Whitehaven Golf Club.
I would be surprised if an award of costs is made in this case. I would be utterly astonished if anyone obtains an award of costs without producing a vastly more coherent and stronger justification for such an award than anything which has yet been published.
"confirmed that it will no longer rely on the resolution decision being challenged in the judicial review proceedings."
and that that, if it has done so, the confirmation provided confirms something other than that which Leigh Day and Ms Birkby (and me for that matter) think it does. It seeems quite unlikely that it is a simple acknowledgement of the fact that the application for a Judicial Review has been withdrawn. The only other interpretation I can think of is that CCC acknowledges that if a Review is applied for subsequently it need not be limited to the grounds that were used this time.
Regarding costs; as I understand it the arguable case regarding the middling coal was that the Council had failed to address the balance of benefit and adverse impact of the sale and combustion of this by-product. This was something it, arguably, should have done. By removing the by-product from the equation the company is providing new information not to address this concern but to negate it completely. I also understand that the Judge gave leave to submit for costs so it wasn't a totally hopeless proposition to ask. We will see.
Of course, should the Committee reject the removal of middlings from the mine output without adressing the question put in the Judicial Review application, Ms Birkby would be within her rights to try again. That said, I'm sure the officers will look to ensure that this doesn't happen by addressing it in their report to Committee and thus vindicate her after all.
I have also had the experience of having to deal with people of whom I shall say no more than that if they told me it was raining, I would look outside to check.
There have been both council officers and solicitors in both groups. More in both professions, I would add, in the former category than the latter.
When I saw on the Leigh Day website the words Gary has placed in quotation marks a few posts above, about the council no longer relying on the decision being challenged, I shook my head in disbelief.
It does not make any sense to me that the County Council would have used those words and I have not been able to confirm that anyone connected with the county council did.
What I'm hearing is that the council did indeed simply acknowledge that the application for Judicial Review has been withdrawn.
If Gary or anyone else can furnish any proof that anyone from CCC actually used those words - and who precisely did so - I would be most interested.
With regard to costs.
It is far more common for a judge or inspector to allow a case for costs to be presented than to actually award costs.
Failing to address an issue might - if, and this is a "Spartan if," the argument were proved that a material factor which should have been considered and might have reversed the decision had not been - just be sufficient to get the planning decision quashed and send everyone back to square one. Though my money would be against it happening in this case.
It would only justify an award of costs if
1) what had been missed was something which there was a clear statutory duty to consider, so clear that not doing so was maladministration, and
2) the person or group seeking the award of costs could show that they had incurred costs they could not reasonably have expected to incur as a result of that maladministration.
The sort of thing which leads to an award of costs would be if the council's Highway officers said there was no traffic objection to a planning application, councillors refused permission on highways grounds anyway, the applicant appealed and spent a lot of money on professional highways advice, but when it got to the appeal neither the councillors or the officers could produce any evidence to back up the highways refusal and the council withdrew that reason.
In that sort of circumstance the Inspector or a judge might order the council to pay the cost of the highways advice even if the council won the appeal for another reason. I recall a case when a council of which I was then a member won an appeal but had to pay the costs of the applicant's highways evidence in exactly such a situation.
The argument was that by giving a highways reason for refusal which there was no evidence to support the relevant planning sub-committee (of which I was not a member) had wasted the applicant's money.
But if the council argue the case - for instance if some of the councillors who refused the application actually turn up as witnesses to explain and give evidence for their decision - the applicant won't usually get the costs of their highways advice back via a costs awards even if the council loses.
It's not enough, or even always necessary, to win the argument to win a costs award - you have to show that the other side has done something grossly unreasonable and caused you to incur costs as a result.
And the reason actually quoted on the website and in the press,
"We want our money back to refill our war chest"
as a reason for asking for costs is a serious contender for the weakest argument I've heard in a planning case in my 27 years as a councillor.
Since anyone with an internet connection and the patience to find and read the 188 page report which was published by the officers to brief the committee and which is still available online can quickly establish for themselves that the council did indeed consider climate change and the environmental impact of extracting "middlings" coal, I don't believe there is.
"Take into account" does not mean "Come to the same decision one side of a particular side of the argument thinks this factor supports," it means "consider."
On page 35 of the agenda, when the officers' report to the committee begins to discuss the key issues, the very first key issue they list is "climate change, sustainability and energy use" and the second is middlings coal.
The issue of Climate change is discussed in eighteen paragraphs over four pages of the report - not counting the summary of representations point where the objections submitted by FOE, KCCH and other objectors are reported to the committee - and the report does refer in considerable detail to government planning policies, targets and legislation to reduce greenhouse gas ands carbon emissions including quite recent ones.
I was at the committee meeting. I don't recall every word that was spoken during the hours of presentations and reports but my recollection is that the officers did describe government legislation on climate change.
I too will happily wait to see what the judge says.
West Cumbria Mining Planning Application.
Due to unprecedented numbers of representations being received on this application, including some received after the Consultation deadline and some that have contained new evidence, the Council has decided to postpone taking this application to the Development Control and Regulation Committee for a decision on 8th July in order to properly consider all representations and documentation received. The Council will now look to provide an alternative date. Please check our website on www.cumbria.gov.uk for further information.