National Assembly for Wales

Okay. Bore da, good morning. So, policy for coal mining in Great Britain is set by UK, Scottish and Welsh Governments through planning policy, but also, in Welsh Government, through the licensing arrangements and special arrangements we've got down here in Wales. In terms of surface mines, local authorities are the primary authority for regulation through the planning system and enforcement through that planning regime, but the Coal Authority also has a role for licensing the coal-mining operations. But, also, to do mining operations then, there are other organisations that also have roles, for example, Natural Resources Wales and the Health and Safety Executive all have to work together on that. So, as regards a surface mine following its closure, then the primary focus for people to restore the site is the operator, No. 1, of course, and that's how it should happen. But, if not, then it is through the local authority, through either taking a bond from a restoration point of view or enforcing the planning conditions that are there in force.

So, as regards the Coal Authority's actual position, we own, on behalf of the UK Government, the coal, and that was vested as part of our legislation in 1994, when we were formed. So, to work an opencast mine, there are two things that have to happen: the operator needs to take a lease from ourselves to actually gain an interest in the coal, and they have to then have a licence from us to actually mine that coal. As regards a surface mine, we don't own any of the surface that is above the coal; that is owned by a third-party landowner or the operator. So, when that surface is then removed to extract the coal, effectively, you're creating a new landform, but that stays with the third-party landowner and the operator—it doesn't come to ourselves, which is very different for a deep mine, of course. So, surface mines are treated very differently to ourselves.

So, I suppose, as regards our position from a restoration point of view, although we have a role from a licensing point of view, our main role then is to work with local authorities to ensure, when a mine is either operating or is closing, that we are working together, in a joined-up fashion, to make sure that the operator is doing what it should be doing. I suppose that was very much the spirit of the work that was done in 2014-16. There was a review done of surface mines down here in Wales, an independent review, and the reason for that was, in 2014, when the price of coal and everything crashed, all of the surface mines in Scotland then become insolvent, and the local authorities had a big problem. Some of the sites were suitably bonded, some weren't, and again that was done because of the planning conditions at the time. So, that review was done in 2014. It identified 10 sites down here in Wales, and then we produced some guidance for the Welsh Government in 2016, which was best-practice guidance. The idea of this was to try and prevent the situation that we are currently in.

We'll come on to that particularly later on. Just generally, in terms of your role, when you say you work with local authorities to make sure that expectations are met in terms of obligations et cetera, what does that look like? In practical terms, what do you do?

For example, as part of the 2016 work we did on the best practice, we worked with several local authorities—Rhondda, Caerphilly and Neath—to become that independent assessor. But also, in our role more widely—because with coal, it's wider than just surface mines in south Wales—we work closely with local authorities to make sure that we are remediating mine water pollution. We are working where we had mining hazards, to make sure that they are made safe. We also provide information to developers and people that need that information to make learned decisions on mining. And also we're working very closely, as it stands at the minute, obviously on the coal tips side, with the Welsh Government as well. So, I suppose, narrowing it down into the surface mining areas, where we think there may be a problem, as we did with Ffos-y-fran, then we would contact the local authority and have general discussions with them as well. It is to make sure that we are presenting a joined-up approach to make sure that we're working together, not against the operator, but with the operator.

We'll draw out a bit of that further as we go along, I'm sure. Could I ask you whether you believe non-operational surface mines in Wales have been restored to an appropriate standard? Are there any specific Welsh sites that you think are a cause of concern?

Again, looking back into when we did the work in 2016 and 2014, it identified that there were 10 sites that were operational at that time, and six of those were classed as being a concern. The reason for that was because of the amount of bonding that was available at that time. Celtic Energy was a company at that time that was not in the best of health. So, we worked, I think, mainly with Neath at that time, for East Pit and Margam, to try and broker the best restoration that could be done with the money that was available. As part of those restoration plans, we worked with Neath as that independent assessor to say, 'Yes, this work's been done', to allow them to release some of that money then to the contractor that was undertaking the work. So, I think, as regards the actual sites themselves that weren't restored to what the original restoration plans were, I think, at the time, with what money was available, the best job was done as could be done.

Does that need to be revisited? Do we need an independent piece of work to recost, if you like, getting some of those sites up to a standard or recognising where unrestored sites need to be addressed?

I think it would be a good piece of work to do. I think what you would find from that piece of work, though, is that it's going to be quite an expensive thing to do any of that work. As we've identified at Ffos-y-fran, there's £15 million available, but the actual restoration of the scheme is anywhere between £75 million and £120 million, which is a big, big gap in funding. I think there were very similar things in East Pit and Margam at the time—similar kinds of differences in the amount of money that we're talking about. So, if you're asking me the scale of funding that would be needed, you would be probably up around the £75 million, £100 million mark for both of those sites to get them to some kind of state.

One of the big issues with them, of course, is the amount of water that is now within those voids. Similar to what’s happened at Ffos-y-fran, you’ve got a void that’s now filling with water. To pump that water out alone is a huge undertaking, and where you would put that water to make sure you’re not causing an issue. You’d need to make sure that you’ve got Natural Resources Wales involved as well. So, the pumping side of it could be tens of millions on its own.

Were there to be merit in undertaking that piece of work, who do you think would be best placed to do it?

As the independent assessor, we’d be very happy to undertake that piece of work for the Welsh Government. We’ve currently worked with yourselves on several things, and we’ve offered that assistance already to the Welsh Government for Ffos-y-fran. 

Thank you. Carolyn.

Diolch. I'm asking about funds for site restoration. What’s the purpose of funds held in escrow accounts linked to opencast sites? Are these funds for restoration, or to make the site safe in cases of operator abandonment or insolvency? I believe the paper from MTCBC suggests the money is for site restoration, but CAN suggests this money is to make the site safe should the operator abandon the site. So, could you tell me more about that, please?

The way the guidance is written is that, at any one time, you should calculate the maximum amount of money that you need to be able to restore the site. The original thinking around that guidance was that that is the amount of money that should be held within an escrow account, on the basis that, if a company went into insolvency, then the council have got a pot of money to be able to pull on to be able to restore the site. And that money should include not only the actual restoration of the site, but the fact that they would have to retender for the work, they would have to bring a management team in to be able to do the work. So, it was designed, and the purpose of it is, to be an all-encompassing pot of money.

I suppose the reality is that the pots of money that have been put aside are nowhere near sufficient to be able to do the restoration plans that are on the table. So, you end up with a situation where, if a company was to go insolvent, there would be a pot of money. This is what happened up in Scotland, and a lot of times, it was very much insufficient to do anything on those sites, other than to slightly batter down the sides, or make some of the sides less steep, and to try and make the site more safe. That is what has happened in Scotland.

One of our biggest concerns at Ffos-y-fran was the basis that the company could go insolvent, and they were some of the conversations we had with Merthyr early doors, to say that this, potentially, could happen. There are no plans to do that at this moment in time, but it still does leave a big chunk of money missing to be able to do the restoration on the site. So, it then comes down to a revised restoration scheme, or a potentially revised restoration scheme, which then needs to go back through the planning process to agree that restoration scheme.

Do you mind if I just ask—? Why was there insufficient money set aside for restoration? Where have those millions gone?

I can't answer that question. That would be a question you would need to ask Merthyr council. We don't get involved in any of the escrow accounts. In the work that we did back in 2016, we worked with some local authorities at the planning stage to assess the requirements, as the independent assessor—as in the guidance—to assess the requirements that would have been needed for an escrow account. We offered those services to Merthyr in 2016, but they chose not to go down that route.

Would they have been gathered under section 106 agreements when planning was consented? Is that how they're gathered and, then, just held in that way?

I wouldn't be able to answer that. Again, it would be a question for Merthyr, really. You would have to ask them. We don't get involved in the section 106 agreements. That's very much a planning and operator decision. 

So, it's not different for mines. It would be like most planning, and then it would be held, probably, in a 106, I guess. 

Liability now. It sounds like liability is a huge issue if they become insolvent, and what can you do about that going forward. In 2016, your best practice guidance on restoration liability assessments for surface coal mines recommended such mines should have an annual restoration liability assessment to ensure liability is fully secured. Have these assessments taken place on an annual basis for all surface mines in Wales? Has the best practice guidance been periodically reviewed since its publication, and, if so, what changes have been made?

There's been no review on the guidance. We were commissioned by the Welsh Government to do that guidance, but we've not been asked to review it. In my opinion, the guidance is still very relevant and if we were to refresh it now, I don't think you would make many—if any—changes to it. I think it's still good practice, what is in there.

As regards annual reviews on sites, on the sites that we provided the independent assessment for—and I have to cite Tower as one of those—I wouldn't say we did an annual assessment, but we did periodic assessments at different stages of the restoration. Tower is probably a good example of how it has worked quite well and the site is getting close to a restored state. But we only worked with a few local authorities as that independent assessor. And the whole purpose of the way the guidance is written is it's not just ourselves that can provide that independent assessment, because there are other companies out there that can actually do it.

Okay. Thank you.

To what extent has the best practice guidance been implemented? Because we're not in a good place, are we? So, what does that say about whether the good practice is actually being utilised?

I think in places it has, and in other places it hasn't. And I think that—

Places as in areas of policy, or geographically?

Both, actually. The guidance is written for local authorities. It's best practice guidance for local authorities and operators. Back in 2015, we wrote to all of the local authorities to say, 'We're prepared to do this service for you at a cost recovery rate'. Some local authorities took us on board and others chose not to.

Would we be in this position had the best practice been utilised in full?

Possibly not. Whether you would ever have got above the £15 million in the escrow account, I think, again, is down to discussions between Merthyr and the operator.

Thank you. Mark.

Bore da. I'll just begin by thanking the Coal Authority for the very important work that's continuing to be carried out in the wider field of coal tip safety here in Wales. My questions are primarily to follow up some of the things you've already told us about the authority's engagement in the Ffos-y-fran context, but I have just a couple of other questions arising from some other points you've already been asked about. First of all, just to confirm that the Coal Authority is a non-devolved body, primarily responsible to the UK Government.

Yes, we are, but obviously we work closely with the Welsh Government as a delivery partner, as you've mentioned.

Sure. The UK Government's remit for the Coal Authority is to maximise the extraction of available coal resources, isn't it?

That's written in the legislation, yes.

The Welsh Government's policy is to minimise the extraction of fossil fuel resources in the future. Does that cause a difficulty for the Coal Authority in operating effectively in Wales—that you have a legislative obligation to do one thing, which is in direct contradiction to the policies of the Welsh Government?

I think the policies of the Welsh Government, and, certainly, the way that the licensing regime now works and the fact that you've got the section 26 position within Wales, allow us to have suitable conversations that can make sure that we're not in conflict on those.

A previous Secretary of State indicated that the UK Government was to review the remit of the Coal Authority in the light of the climate emergency. To your knowledge, has that review ever taken place?

It hasn't taken place. That's very much a policy decision within the UK Government that we don't get involved in. But no, the review hasn't taken place.

Thank you. I wanted to follow up a point that the Chair put to you about a new independent assessment of the state of opencast mines that have come to an end and how well they've been remediated, and. You said you thought that would be a useful exercise. Is our primary lack one of assessment? If we knew better what the problem was, do you think we would be doing anything different about it?

I think the primary problem is the lack of funding available to do it. I think the assessment would tell you the current condition of the site. I see the Coal Action Network have produced a report that looked at the sites in 2022. I think it would be useful to do an independent assessment of the safety of the sites, but I think a lot of that work, with discussion with local authorities, they would tell you some of the issues on some of the sites anyway. But, I think it's primarily around the funding position of what you would or how you could do something with it. 

So, an effort could be devoted to a better and more up-to-date assessment of the problem, but we couldn't be confident that a better assessment would lead to any different action, given the state of resources available to local authorities in discharging those responsibilities.

Potentially not, no. I think it would just come down, again, to the amount of funding that was actually available, because some of these sites do need big funding spent on them to get them to the state where we'd all hope they would be, but it would then come down to a priority issue for funding. 

So, it wouldn't be an unfair summary to say that we're not so much short of knowledge as just short of money to do anything about the knowledge that we have. 

Turning to Ffos-y-fran—and thank you for the things you've said already—the Coal Authority wrote a letter to the Welsh Government in October 2023, raising concerns about the local authority's preparedness for site closure. What was the purpose of writing to the Welsh Government?

We'd met with Merthyr several times, and we had a meeting where all parties came together, and part of that meeting was to think about, if insolvency took place and the gates were left open, so to speak, what would be the potential public safety issues that would arise on that site, because ultimately it would come down to the local authority. We had a meeting, and I didn't think that it was being reviewed in seriousness that this could be something that could happen, and I think we wanted to make sure that the Welsh Government were aware, from the Coal Authority's point of view, of some of the risks that were potentially going to be there from a public safety position. So, that was the purpose of us writing to the Welsh Government, and also to, I suppose, raise awareness of the potential hydro-geological issues that there could be at that site and the need to act sooner than we felt was happening. We'd been in discussion with the council for a while, and it was just to make sure that we were getting the right impetus in those discussions. 

Thank you. So, as you told us earlier, the primary responsibilities in this area, including the legal obligations, lie with the local authority, and the purpose of the letter was to alert the Welsh Government to the Coal Authority's concerns as to how seriously and how significantly the local authority was preparing for its obligations.

Yes.

In the correspondence, and in the Coal Authority's actions around Ffos-y-fran, I think there were a couple of suggestions that the authority made around a joint technical working group and an incident response team. I wonder if you could just help the committee with telling us to what extent those suggestions have been taken up and whether either or both of those groups are currently in operation. 

So, with the incident response, we suggested to Welsh Government that it would be good to put the site on an incident response footing, and then you would ensure that we'd got that preparedness in place for the eventuality of if the operator did leave. I don't believe that has happened yet. I think it could happen if the Welsh Government were prepared to do it and if the operator did leave the site quickly. The Coal Authority's view is that that was what we should have done. 

As regards the technical meetings, they have been occurring. They are, again, very much led by Merthyr. The Coal Authority is in attendance, with Natural Resources Wales and also the Welsh Government as well. Occasionally, they are held separately without the operator being there, but, on other occasions we've been there with the operator as well and they've been held on site. And the idea of those is to ensure that we are working as a group together to make sure that we're getting the best that we potentially can from that site. But it is very much at this stage still in the operator's arena for them to work with Merthyr because they are still on site.

Thank you very much. I think I saw in a separate note that the technical working group had met on five occasions at the point that the note was prepared and, at three of those, the operator had been in attendance. So, that looks as though it is at least getting together and doing some of the work that was proposed.

The incident response team primarily intended to be there should the operator vacate the site. That hasn't been the case, as you said, but could still be necessary, depending on the way things develop further. In your inspection of the site, the Coal Authority found that the company was mining beyond the Ffos-y-fran site boundary—beyond the boundary for which it had planning permission—and the authority took action to address that. Was that action successful?

Obviously, the site was operating without planning permission, so it was potentially illegal anyway. We inspected the site in May 2023 and found that the operator was working outside of the coal-mining licence area. So, we gave a notice of enforcement or pending action in July. We re-inspected in August last year, and we found that they were still mining outside that area, so we then submitted enforcement action in September. Now, that gave the operator 42 days to then come with a case as to why they thought they could, or why they were questioning or could question the validity of that. We then found that, when we re-inspected in November, they had stopped mining and that was the cessation of actual coal mining on the site. So, we didn't have to actually go in and stop the company operating on that site, but that was one of the reasons why they stopped.

They did at the time put forward a case, early in May, as to why they were operating outside of the licence area. We took independent advice and did some independent inspections of that, and we disagreed with the reasons that they were giving. They were saying that it was from a public safety point of view. We disagreed with that and that's why we took enforcement action. That is very much—. They followed the lines of where the Coal Authority's legal position stood.

Mr Banton, one of the things that I think members of the public are concerned about in the Ffos-y-fran context, but sometimes more generally, is whether public authorities, such as the Coal Authority, are able to act quickly enough and effectively enough when there are breaches of the sort you describe by operators. When you look back over the months that you've described, do you think that an independent eye on all of that would regard the actions of the Coal Authority as having been timely and effective?

I suppose the answer to that is very much in the way the legal system works.There are set periods that you have to follow to serve notices and allow operators or people time in which to respond and come back with different cases and that is built into the legislation. We followed that procedure and that is why we took action in September and we'd given them the 42 days where they could come back and challenge that action, but then they didn't, so we would have taken further action to stop the work on site. So, I can understand the frustration of the public, but that is the procedure that we have to follow.

I'll just say that I think that's an important point—that sometimes it is difficult to convey to others that the law does have a balancing approach to interests and it does allow people, against whom action has been taken, time to dispute that action, to make alternative cases. In this area, though, there were competing—maybe that's an unfair word—or there was a distribution of enforcement powers: the Coal Authority had its powers and the local authority had its separate powers. Do you think that the enforcement landscape in relation to contexts such as Ffos-y-fran is overcomplicated, and would it be helpful if it were simplified so that it was easier to see who was responsible for taking what formal action?

Personally, I think not, because it's very clear from a licensing position—a coal-mining licensing position—that it's the Coal Authority's. The majority of the rest is largely with the planning system, through the local authority, and then Natural Resources Wales have a small part to play as regards water quality and discharge consents in the environment. But the main chunk of it is through the planning system, which I think has got adequate procedures in place to be able to manage it.

So, while the amateur eye on this might think, 'Oh, this looks pretty complicated here—at least three different authorities, all with separate powers, all with separate responsibilities, all with separate enforcement actions available to them', it would be your view, as someone much closer to it, and much more, in many ways, expert in this field, that, actually, the distribution of those powers is reasonable.

I would say so, yes, because the primary area is through the planning system.

Thank you. I've two further areas, Chair, if I can.

Well, I think Delyth wants to come in as well on a few areas, just to pick up, and we'll come back if there's time. Delyth.

Good morning. I appreciate what you were just saying to Mark, but, evidently, the system that we have, things are going wrong, as you yourself have been acknowledging. The fact that the site operator was coaling for more than a year, illegally, or certainly outside its planning permission, what do you think the different factors were that contributed towards allowing that to continue?

I think that's more a question for Merthyr, but, from what I understand, the operator was talking to Merthyr about revised planning, and had submitted a planning application, which has then got to go through the due process and be properly reviewed as regards the procedures that would say so. When that planning was then refused, I think the local authority had options then on things they could have taken as regards the planning system. But I think that's more a Merthyr question than the Coal Authority.

Okay. But do you think that—again, picking up Mark's question about the possible overcomplication and the fact that there are so many different actors, and no ultimate arbitrator, or someone who can intervene, when they say, 'Right, this is getting beyond serious now'—do you think that there could be a reassessment of how that works, so that, in cases where something goes seriously wrong, and perhaps, whether it's the local authority that could be taking different actions and they don't, that someone could come in and take those actions on their behalf?

But, again, if you come back to the best guidance, then that is the purpose of the independent assessor—they could have taken that role and certainly ensured that these issues were being considered and addressed. I suppose, ultimately, it comes back down to us knowning about this problem since 2016, and we've just not really gone much further than that position now—we're in that same position now. If you think currently where we are with the coal-mining situation, I don't think this situation would re-arise now, because it's different as regards the planning side, the policy side, as regards the view from the Welsh Government, and us, really, I suppose, on where we are with coal. So, I don't think we're going to have many new opencast sites, if any. So, are we now looking at something that's a historic problem? Yes, it's a problem that we've now got to try and fix, but is it going to be a forward problem then? Probably not as big a one, maybe.

Well, please, God, I hope you're right on that. With Ffos-y-fran specifically, the council have suggested that, with restoration, there may be, in their words, a major reconfiguration of how that site could be restored, and that the void that has been filled with water, that that could actually be part of a restored site. That is contaminated water, and, presumably, the contamination is becoming even more condensed—well, even worse, then—as the situation goes on. What is your view on that suggestion? Do you think that that would be an adequate—? Would that count as restoration, in your view?

You would end up with a restoration proposal that probably looks something similar to East Pit and Margam—so, the incorporation of a large body of water, probably slackening off some of the steep slopes, and everything else, but it would be a limited amount of restoration. I think the issue with this is that, whilst ever the body of water continues to grow, that then can potentially hinder the restoration plans that would be in place. So, it is a matter of a balancing situation. But the body of water would just be a large body of water. There is an element of contamination in it, but the bigger the body grows, then there's more of a dilution issue as well, so it may be not a massive pollution problem.

Although it may—

The big—sorry.

Forgive me interrupting. But it may be a risk to the public if the water void grows, then, if the walls of the pit—well, not the pit, but if the walls of the site were to fail, that that could be a risk, couldn't it, to either public health, or even risk of death?

So, what I was going to say—you've just taken the words out of my mouth there—is two things, where really it's assessment of safety, as that water body grows, but more so a hydrogeological assessment is required to make sure that that water body is both safe and that we're aware of potential routes offsite for that water to go to.

Thank you for that and forgive me for having interrupted.

No, it's fine.

Was there any role that the Coal Authority could have taken to intervene to stop this water void from growing? When the pumps were turned off, was there anything the Coal Authority could have done to go in and to make sure this didn't happen?

So, obviously, when we were aware of the situation with the site, the fact they were illegally mining, then that's when we opened up discussions with Merthyr, back in June last year. At that time, I also suggested, because I was aware that this had happened in the past, and the water body would grow, that we involved Natural Resources Wales in that. We did an overview, a hydrgeological assessment at the time, and we've shared that with our partners, but, again, it's very much a matter for making sure that Natural Resources Wales, Merthyr and the operator are aware of that body of water and make that risk assessment on it.

Thank you. With that in mind, I'll just go back to the point that a number of Members have put to you: because of how dispersed or possibly diluted these powers are because they are different bodies that need to take these decisions, do you think that there should be a body, whether it be the Coal Authority or not, that comes in and intervenes in a situation like this? Because, presumably, in the discussions of alerting the different bodies to the fact that this is a growing risk, nobody then took any action.

And I suppose that's where we've tried to broker the situation. We've identified that we think there is a problem. Certain bodies have responsibility for it, but it's about bringing them all together. So, yes, I think there is a role for somebody independent to do that, and we've offered to do that for Welsh Government. We would do that on a cost recovery basis to do that role. But, obviously, if we were to take that role, I would need to start up a team to be able to do it. We do have the expertise and that was the service that we did provide as part of that independent assessment back in 2016. But, obviously, I'd need to form a team and put it on an emergency footing to be able to do that. We haven't got specific powers to do that, and it's not our responsibility, but we could fulfil that role if necessary.

Thank you. I know that Mark wanted to come back in. I'm happy—

Yes, there we are, okay. Well, we've got a couple of minutes left, so, Mark, would you just want to conclude?

If I may, then—

A final chance for Delyth.

[Laughter.] Thank you. Do you think that there should be at this stage with Ffos-y-fran compulsory purchase of the land, because the operator is not putting—? Do you think it's possible to drain this water out, or have we reached the point of no return now?

I haven't got the latest view on that; we'll get it this afternoon because there's a technical meeting this afternoon, but it'll be interesting to see what the latest view is on that, and then you'd have to cost how much it would physically take to drain that water out, because you'd be able to calculate the volume of water that was in there. But I would need the information to be able to understand that, but it would be quite a significant cost I think.

If you could let us know when you have that information later, that would be really useful, please. And finally, then, from me, to what extent do you think that the lack of either minerals planning knowledge or experience within the local authority has contributed to the issues that have come about in this instance, please?

I'm aware that several local authorities use Carmarthenshire, I think it is, for their minerals expertise, and they did—and I'm aware because we've worked with them in the past—have very good mineral expertise in the past. I know there's a service level agreement, but I've never seen the SLA so I don't understand how that works and what level of service that the local authorities get from that. I know we worked with Neath and they've used Carmarthenshire in the past. So, I can't comment on how effective it is, but certainly as regards local authorities losing expertise, minerals planning and tips expertise, for example—and that's why we've come in and set our team up to set help local authorities in that respect—that is a potential issue. That is why the Coal Authority could provide that service if it was required.

Thank you.

Excellent. Well, it's very nearly to the second 10.10 a.m., so can I thank you, Mr Banton, for your evidence—

No problem.

—for joining us, and for giving us a firm basis to kick off our short inquiries on this particular subject? So, diolch yn fawr iawn.

The committee will now break just for a brief five minutes so that we can get the next panel in—

[Inaudible.]

Indeed, we're very grateful, and we may well be writing with a few additional questions, maybe after hearing from others as well.

Okay, thank you.

Diolch yn fawr iawn. Thank you. So, we'll break now until 10.15 a.m., when we'll hear from our next panel. Diolch yn fawr.

So, my first general question is to ask, where there are examples in Wales where proper restoration of former opencast sites has not been fully undertaken, what do you think are the main reasons for that? What are the factors that you think that explain those instances where restoration has not been properly completed?

Daniel.

Hello. I think it's a combination of legislative weakness and corporate greed, as in the case of Celtic Energy's sites over the last 10 years, they've been left in a dire state. You might know the history to this, it was taken to the serious crime office and it was looked into, there was a court trial, and the judge said although the action of the company was reprehensible, it was not illegal. I think that really underpins some of the issues that we see today at Ffos-y-fran. Nothing has changed since then. 

Haf.

On the most general level, I'd say it's a failed business model, to be honest, or maybe not a failed business model, because it has made very tidy profits for the private companies, but it's a model that hasn't worked for public authorities. The idea that you give planning permission for mining for x number of years with the intention of restoration, and in nearly every case we've seen mining for x number years plus, usually, with additional planning permissions going in asking for extensions to the time for mining. So, that coal has been mined, has been sold, we've had the emissions, we've had the impacts on the local communities, but then we don't get the money at the end to restore the site and to make it a public facility. That's happened time and time again. So, yes, there are some specific things around lack of secured bonds and funding for restoration, issues with that system; the complexity of responsibilities from privatising this in the first place to the UK and devolved bodies and local authorities that have a mix of responsibilities, and clarity and discussions between those parties; and possibly, as has been raised, the lack of expertise or capacity within local authorities. But, overall, above all of that, I'd say it just doesn't work, and it hasn't worked in any examples. It's been used as an excuse for mining and for companies making great profits over the years.

Is it inevitable that the system as it's currently constructed fails? Are there any examples at all that you can identify of where restoration has been satisfactorily completed?

Earlier, my friend from the Coal Authority mentioned that Tower colliery was an example of a better restoration job, and I would agree with him. Part of that is because the council required £4 million upfront from the company before they started any works to cover the largest liability, which is when they started digging the void. However, even in that example, as the Coal Authority observed, that restoration is not complete. It was due to be complete, I believe, midway through 2022, so that is somewhat overdue. Originally, the company claimed a 2m difference in the contours of the land was acceptable. The Coal Authority disagreed with that. They said, actually, it's 0.6m. So, even in that example, which is held up as being a good example, there are still these disagreements with the company. The company is still trying to get away with a different restoration plan to what was agreed. So, in answer, 'No'. I think that the legislative landscape and the weaknesses within that and the profit motives of the companies involved means that there aren't good examples.

I'd concur with that. Tower is a company that is embedded in the community and maybe feels a sense of responsibility to the local area, which isn't the case with a number of the other companies who sell off or disappear. So, overwhelmingly, I'd say it's a story of failure and communities being let down. And, of course, because the coal has been burnt, the damage has been done. There's no way to reclaim the environmental cost of that as well, which is different to other types of planning permission. If an extension goes up and planning permission isn't given, then the extension can be taken down. But that's not possible when you mine coal and you burn it.

If the position is one of overwhelming failure, then, are there particularly concerning examples amongst those opencast sites that were due to have been restored in Wales but where that hasn't happened? Are there particularly egregious examples that you think the committee ought to be aware of?

I'd certainly highlight East Pit and Margam as sites that are 'restored', in terms of their definition is that restoration is complete, but certainly not sufficient. I'm sure Daniel can speak to more of the detail of this as Coal Action Network prepared a detailed report, which was referred to earlier, in 2022 reviewing all of the sites and looking at the details. Hopefully, you'll be speaking to local residents from those areas during the process of this inquiry as well. Those are particularly bad cases. But, of course, Ffos-y-fran is the big one that we're dealing with now—hopefully, we'll go into more detail—as a site that is not yet restored but where there's still, hopefully, potential. We're at a key stage of that site.

Yes, I actually spoke with local residents living around the Margam Parc Slip site in March and they described the site as, 'Like the moon, like Mars—all we're asking for is to restore it to some sort of semblance of what it was prior.' That's really what these people want who are living around these sites. I'd agree that East Pit and Margam Parc Slip are really strong examples of poorly restored sites. I wouldn't call that a restoration. The site has perhaps been made safe to some degree, but it has not been restored. That's what they want. They can't move on until their sense of place and purpose, as they put it, has been restored. If that void is filled with water, they can't ride their horses over the land, which is what they did before. Their kids can't play on that.

Although those are perhaps two of the worst examples, Selar is an example of a closed coal-mine site that has been restored according to the council. I visited that site and there's a large concrete platform with a disused warehouse, oil drums turned over on their sides, office chairs strewn around. There is outside of that warehouse an open container, I guess, with goodness knows what liquid in there. There are oil drums leaking into it, there are antifreeze barrels leaking out into the ground. I've shared this with Natural Resources Wales and they've said that they've been in contact with the local landowner—nothing's happened, and that is years after the site has been restored, according to the council. Similarly, at East Pit there are large concrete platforms, disused warehouses, and there's an abandoned car in a cargo crate on that land. What are these sites that the councils are saying are restored?

Diolch yn fawr, Cadeirydd.

Okay. There we are. Sorry, we lost you momentarily there, Mark. 

Diolch yn fawr.

Thank you. We'll move on to Delyth, then. [Interruption.] Oh, sorry, yes, Carolyn, please do. 

About the ecological impact of the site as well—I'm not sure if you'll be able to answer the questions, but—could old coal sites be restored for biodiversity value and environmental value? And the water, will that be having a damaging impact on the natural environment as well, and ecology? I know we've been looking at it from a human point of view, but I'm thinking for the natural environment as well.

Yes, absolutely. I know that there was a recent report published on Welsh biodiversity and the need to step up, and I think old coal mine sites are a really good location for that biodiversity return, if the investment is there. As the Coal Authority mentioned earlier, it would need funding, but that would be funding well spent, both for the local communities in that area, who have suffered the burden of coal mining, as well as for the biodiversity in those areas. 

I know that old limestone quarries are very good for biodiversity, but I wasn't sure about the old coalfield sites, so, thank you.

There we are. Okay. Sorry, Haf.

I was just going to say, yes, absolutely, exactly. These sites, first of all, must be made safe and monitored to ensure that whatever was there isn't leaking into groundwater or causing environmental harm as the first stage. But, following that stage, a successful restoration should mean that they're, yes, accessible to the public, but also an area of thriving biodiversity. So, it is possible to do that—that has been done with some coal tips, which we might come on to discuss. But, yes, there's certainly potential there.

Diolch yn fawr iawn. Good morning. It's great to see you. It's really good to have your expertise with us. Thank you very much. We're going to be focusing on Ffos-y-fran, which I know is a focal point in all of our minds at the moment. Could you outline, please, for us, firstly, what discussions you've had with the local authority about restoring the site?

Wow. [Laughter.] It is quite a difficult question, because we've been raising this with the local authority over a number of years now, once we saw that we were expecting the mining to stop in September 2022. When we saw the new planning permission go in to extend that period, we were engaging constantly with the local authority over that extension, but also raising, 'What happens next?' So, it's been quite protracted and, throughout the process, I think we'd say it's been quite difficult to get information out of the local authority, whether that's about ensuring that local communities are consulted, or basic planning documents, and that continues to be the case. I'll get Daniel go into more detail, because he's been in contact with the local authority more recently. But local residents who we're in touch with regularly have been writing back and forth, trying to get answers out of the local authorities about this, and getting replies eventually, with a little bit of pushing, and being told, 'Everything's okay; we're monitoring; everyone's talking to each other; everything's okay', but not getting any data or any proof or evidence of that. We wrote to them again last week, so, when we get a reply, I'm happy to share that—

Please.

—with the committee, asking for a number of documentations, what expertise was involved and what data they have. So, we continue to try our best to engage, but it's very difficult, and I don't feel that we're getting substantive responses, or the necessary data that we or the local community need.

Yes, I would agree with everything that Haf has said. I would say that our approach with the local council has been one of a partnership approach, what we have tried. I think that environmental NGOs have a really important role in terms of scrutiny, as well as getting information out to the public domain about what is happening. The response from the council has been protracted and I would say blocking—I don't think that's an overstatement. I’ve had to wait over a month before for responses from the local council, and, when I have had it, I’ve had frustrated terms. I think at one point a member of staff—I won’t name them—said don’t I realise that they’re busy and have many other things to do? Meanwhile, we’re made aware that there are weekly meetings between the company, between the operator, and the council, so clearly that time is there—it’s just where they spend the time. And I would agree that there has been very, very little consultation with local communities that are living close to the site, and when I say ‘close to the site’ I mean 270m as the crow flies from the void itself. That’s 270m. So, that’s equivalent to between us and the Odeon cinema around the corner. It is that close. It is on the other side of a motorway—or, not a motorway, sorry; a road. That is a void that is filling up with water, and that is a void filling up with water that I’m not aware the council have made any efforts to inform the community living there that that is happening. That's fairly shocking.

I know that the planning permission ran out on 6 September 2022. On 12 September 2022, Chris, a local resident, who will be sitting where I am next month, I believe, and will tell you this, sent photographs of fully loaded coal trucks leaving the site to the council, indicative that perhaps active coal mining is still happening, and that the council should maybe look into it. The council refused. The council just did not bother. Months and months and months passed. It wasn’t until January, when I sent official Coal Authority statistics to the council saying, ‘Look, the production is still happening—in fact, it has gone up slightly. How are you responding to this?’, and then, two months later, on 31 March—I have an e-mail here—I was finally e-mailed by the council saying, ‘Yeah, okay. We realise it has been happening the whole time. The coal operator lied to us.’ Why didn’t they look into that? We sent them photos, as I said, on 12 September. We sent them many photos since then as well, and we were in contact many times, asking, begging, the council to please go to the site to see for themselves, and they refused. And I guess the question there is: why did they refuse? It’s not far away. It’s their job to independently monitor what the company is telling them. So, why didn’t they do that?

Could I just pick up on something here? Because Merthyr council, of course, have declined our invitation to come and give oral evidence, so I'll just throw back to you a little bit. Capacity issues are known within planning departments across Wales and beyond. So, you use the word 'blocking', which suggests that you have a different view to whether it's a capacity issue or whether it's some sort of intentional ploy. But there's also a question about competence as well, isn't there? So, there are three—and I'm asking you to tell me what you think it is. Is it incompetence, is it a lack of capacity, or is it something intentional, in terms of not wanting to share stuff with you? Or maybe a little bit of each.

I think capacity is an issue, and I'm well aware of that, and I wouldn't want to play that down. I think there is an element of realising that things were not going to plan and not necessarily wanting that to be broadcast. I think that is mostly where what I described as 'blocking' comes in. Because we're very transparent with our information, and we will put that on our website and share that information because we think it's really important for the local population—not just the local population, also nationally. Over 1,000 tonnes of coal was being mined every single day that that illegal coal mining was happening. That has climate consequences. We believe that everyone needs to know about that. I'm not sure the council shared that perspective. To put those climate impacts into perspective, over the course of the illegal coal mining, which—it depends on when you believe that they started and finished—is 14 to 16 months, that is over 600,000 tonnes of coal. It is 1.9 million tonnes of carbon dioxide, using the base conversion factors. In terms of additional climate-related deaths, we are talking 428 deaths as a result of this illegal coal mining that the council did not prevent, and I don't think the council wanted us to broadcast that.   

Okay. Thank you. Sorry, Delyth. 

No, no, not at all. And yet in spite of these—let's put it charitably—difficulties in engaging with the company, we're given to understand that the council is still keen to work with them on another restoration plan. Potentially, there's a suggestion that that might now incorporate this void filled with water. What are your views on that? 

Well, the company still has a duty to carry out the original restoration plan. That's the current situation—that's what was in the planning permission that was originally granted. That is their duty. They said, I believe, when they announced a unilateral agreement back in September, that they were going to be discussing with the council bringing the mining to an end and looking at a restored plan. We were expecting that earlier this year. We now understand that we're talking about late autumn, and it's positive if the company do remain engaged and they actually end up paying for the restoration rather than it becoming a burden on public authorities, but we're now in limbo, in a situation where they're not mining, they're not active on the site, they're not pumping the water out. There's an enormous void that is filling with water. Nobody's sure of what's in that water, whether it's secure, what the environmental impacts of that will be, and very much the safety concerns, especially as we go into summer, and whether people will be attracted to go that site, whether it's in any way secure.

So, we're really concerned about delay after delay, and this is just a pattern of behaviour that we've seen by the company. And whatever the reasons or motivations of the council behind, they continue a negotiation but we don't see the action, and we're concerned about the consequences of that then, that it becomes a de facto that it will end up with a really weak, cheap restoration plan, which is basically to fill the void with water because it's already there. That's not what's legally meant to happen. That's not fair on the community or on the environment. So, we wish there was more transparency and openness with the council and with the company, that they were willing to discuss with the local community and with us and other interested parties about what their plans are, but all we're getting at the moment is delays and promises down the line that we're uncertain at all of whether they will be delivered, and the risk is increasing all the time. 

Yes, I absolutely agree, and I think perhaps one of the reasons for the delay in submitting that restoration plan is that, by the time it does get submitted, it will be a foregone conclusion. That void will be too filled with water to drain, and the councillors sitting on the planning hearing will have no option but to rubber-stamp it through. I've got a quote here from a planning officer's report: 'The return of the landscape to its original form and appearance is not practicable, realistic or deliverable. It has to be accepted also that what is being proposed, whilst not returning the site to its original form, is an improvement on the current situation.' That could be about Ffos-y-fran. It was about Margam Parc Slip, and I predict we're going to see something very, very similar in the planning officer's report for Ffos-y-fran.

In Margam—. Sorry, in Merthyr (South Wales) Ltd's planning application for its extension, its planning statement, they wrote, in favour of awarding this extension, 'As the council is fully aware, there are insufficient funds within the escrow and restoration fund to allow for the full and successful implementation of the current restoration strategy of this site.' So, that's the company saying to the council, 'If you don't give us this extension, we're not going to restore the site. We haven't got the money to restore this site. We'll make the money if you give us'—what was then asked for—'a nine-month extension.'

What they've had is a de facto over-a-year extension, mining twice what they hoped to mine in that time, and they're still saying they don't have the money for that restoration. I don't buy it.

And on that point, Daniel, you've said in your paper that you were advised that the operator,

'may have acted fraudulently in reporting that it intended to finance restoration and was in a position to do so, if it could be proven that the Director and company had no genuine intent to do so.'

Could you talk us through any evidence that you have to support that, please?

Yes. Let me just find my notes, because I don't want to misspeak on this.

So, we met with several stakeholders some months ago, in London. With met with a planning law firm, a prominent legal chambers in London that specialises in this kind of work, and they said that it could be considered to be a section 4, which is an abuse of a position of trust, of the Fraud Act 2006, which is subject to the Proceeds of Crime Act 2002. If that prosecution was successful, it may be possible to obtain a confiscation order against the company, but it would be primarily for the police or the council to bring the case. A third party could bring the case in a private prosecution. I think that that was based on the fact—and I'm no legal expert—that the company has funnelled nearly £50 million out of the company, in dividends and shares, since 2017, I believe. They did say in their most recently filed annual returns—they're overdue the next one, but in the most recently filed returns—that they have the money to pay for the restoration. They've counted on that. And—

And this is the restoration in full, as intended originally.

Yes, the original restoration, which was forecast to be £75 million. And you can read that—that's on Companies House. So, they said that they had the money, and, at the last moment, they said, 'We don't have the money.' Where did that money go? I think that was asked earlier. So, based on those facts of the case, and to the best of my very lay legal knowledge, that would be the foundation of any kind of prosecution. But, again, to my knowledge, nobody has expressed any interest in taking that prosecution forward.

Diolch. I'm aware of time, so just one final question from me. In terms of your concerns that you've already outlined to us in your evidence about the inadequacy of the escrow funds, and also presumably a possibility that the company could abandon the site, or could seek administration, what do you think needs to be done now, to avoid the latter happening and also to address the inadequacy of what's done with escrow accounts?

I think the big danger for Ffos-y-fran at the moment is inaction and just letting things slip on. And, as you said, by the time we get to maybe a planning proposal in the autumn, it will be too late, both in terms of environmental damage and in terms of the fact that the only option will be to keep a flooded void, in essence. So, we were pleased to hear about the Coal Authority technical meetings, and the pressure coming from there, but, really, the public authorities need to step up and take control of this. Because we're not getting data or hearing back from the council, or seeing the detailed work, it's difficult for us to assess the situation. But we would like to see a much stronger position from the council, and from the Welsh Government as well, to step in, because this is a really serious issue, and it will fall back on public authorities to pay for restoration if it all goes wrong, in any case. But, really, the priority has to be given to taking action, to not letting this just drag on, and for public authorities to pressure for this to take place.

Okay. Diolch. We're going to have to move on, I'm afraid. Carolyn.

You've touched on it already, so I was just going to expand on the role of local authorities and the Welsh Government in this. So, the Chair touched on this earlier: do you think that Welsh local authorities have the necessary minerals planning expertise to ensure appropriate restoration of opencast sites, and enforcement as well? Because enforcement is sometimes different to actually the officers dealing with planning, so getting your observations on that. Is there anything else you'd like to add?

Yes. Obviously, it's been mentioned before that the Carmarthenshire expertise in terms of mineral planning was used by Merthyr, when the extension to Ffos-y-fran was being considered, so that seemed to be a good sharing of resources. I'm sure that local authorities—we know that all local authorities—are under capacity and will lack expertise, especially for some very technical issues that maybe they don't rely on very often. So, in many cases, it would require bringing in independent expertise on hydrology and geology, and that's what we would expect, rather than everything being in-house or even shared between councils. So, there are options like that.

In terms of enforcement, we've certainly seen—. Whether it's a lack of ability or willingness, we don't know, in terms of motive from Merthyr council. When the mining was happening beyond planning permission, as Daniel has already mentioned, we were pushing for enforcement action and for stop notices to be given to the company. That didn't happen until, eventually, I believe, in June. So, after the council had unanimously rejected the proposal, they then issued an enforcement notice, but then neither they nor the Welsh Government actually issued a stop notice, so the really strong action that they had the powers to take, in order to stop that mining taking place. So, we've definitely seen an unwillingness to use the powers that they have, even. But in addition to that, I'm sure there are issues in terms of a lack of technical specialisation in-house.

And I would just add to that. I think that that lack of technical specialisation or lack of technical knowledge is particularly prominent when it comes to the councillors. Understandably, their technical knowledge is limited, so they are very heavily dependent on the planning officer's report and the technical mineral expertise within that report, to the extent that the independence that they can make, in terms of their independent decision making and the democracy behind that, is limited, because that report is so influential on the councillors' thinking that I think that is something—. Some kind of mineral training or expertise could be conferred on to councillors who are making the ultimate decisions on whether to approve or reject a planning application, when it comes to something like a coal mine, because there is such an asymmetry of knowledge there.

But I think more of the problem is that these coal mines are so big, they dwarf the size of the local authority. It's, like, if you build an extension and you build it half a foot out from what you said—and everyone can relate to this—the council will be down on you like a tonne of bricks, so to speak. When it comes to a massive coal mine, they can mine illegally for a year and nothing happens to them. There are no consequences. Not one penny of the company's profits have been touched, despite mining illegally for over a year, with such greater consequences than what your conservatory will have for being a foot out of line, or using the wrong type of glass. What's really key here is not the mineral expertise, but how can a local authority weighing up the costs and benefits of issuing a stop notice with the company quitting the site, and then suddenly they have this huge abandoned coal mine site on their doorsteps that they don't know what to do with, how can they hold a company to account in those circumstances?

Do you think it's an issue? So, the minerals planning officer would give the planning and write that all in the report. Are they in charge of enforcement and then the legal enforcement, the legal team that would have to look into it? Do you think there's an issue with it all being separate and not working together, as well as a lack of resources within the local authority? So, do you think, actually, within the local authority, that talking together and working together is an issue?

Briefly.

Sorry.

Sorry. I don't think that's the issue. I think the issue is that they were afraid of the company quitting the site, and that was in the ministerial advice sent to Mark Drakeford and Julie James at the time. They interviewed the Coal Authority and they interviewed the local council, and the local council said, 'One reason why we've not done it is we're afraid that the company will quit the site, and then what are we going to do?'

So, my other question was: did Welsh local authorities take on board the recommendations of Welsh Government's 2014 report on failure to restore opencast sites and adapt their approach accordingly? Have you got any more to add on that? It sounds like they haven't.

Only that I haven't seen any evidence of them doing so.

Okay. What role should the Welsh Government, the Coal Authority and Natural Resources Wales play in securing the restoration of sites in Wales? Earlier, in previous evidence, we have this concern that, maybe, you need somebody to actually lead on this. So, you've got three authorities who are responsible, but is anybody actually leading or putting plans in place? Your thoughts on that, please.

Yes, I think a lead person, be that the Coal Authority or another body, would be a good idea. We know that we've been passed from pillar to post on who is responsible for this, and we've been lobbying all parties to no avail.

Okay, thank you. And just finally from me, what mechanisms should be put in place to ensure community involvement and input into site restoration, given MTAN2 emphasises the importance of consultation? You mentioned that earlier, Daniel, that you'd been talking to the local community. 

Yes, absolutely. There is, traditionally, not very much consultation at all. There's a consultation period, so if this application were to go forward for a downgraded restoration, or simply to make the site safe, there will be some kind of public consultation during that time. I don't think that's adequate. It's not substantive. I think that public consultation needs to be ongoing as well; that's good practice with public consultation, that it is ongoing. And I think there needs to be a role for that local community to really have a substantive role in shaping exactly what's going to happen on the site. I think it would be a mistake to limit that to thinking, 'We've got £15 million. How do we restore the site on £15 million?' We don't restore the site on £15 million. That can't happen.

Okay, thank you.

If I can just come in, quickly, on this as well. At the moment, any involvement would be welcome, because there is none. We're being really left in the dark, and I think we have to remember the local community haven't just lived with this over the last couple of months or couple of years, the mining's been happening since 2007, and they've been suffering from the dust and the noise and all of the impacts on their local lives. And this was promised to them in the first place as an opportunity to restore the site, so that it would be available to them. So, in addition to the official consultation channels that the council has to follow when a planning application comes before them, I think this needs to be a community-led process and for them to be involved in the development and in proposals, rather than just having a week or two to respond to something in a council system. So, we would welcome involvement from local residents, because they really are the experts on their local area as well.

Thank you. Diolch.

Yes, I think so, but also, we need to create a situation not just where it can be enforced, but where the money is there upfront, because you can't get the money afterwards. I'm hoping that maybe amendments to the Infrastructure (Wales) Bill could play a role in that as well. We've heard from the Welsh Government that the policies coming from the Welsh Government are the most progressive in the UK. It's not true. Scotland has passed a coal ban. They have banned all forms of coal mining in Scotland after their experience. That happened in October 2022. Something like that could happen here. The Welsh coal policies are clearly not strong enough. What's happened at Ffos-y-fran is in direct contravention with national policy in Wales. I don't think it's just an enforcement issue. I think it's also a policy issue. I think policy needs to change. It needs to be strengthened. I think that the Welsh Government needs to look to the Scottish Government and catch up. 

Thank you, Chair. There are several headings that we have for this. The first is that we see quite a lot of private profit over public and planetary good, and that was certainly the case in our experience at Ffos-y-fran. I should say from the outset that I live just 10 miles from Ffos-y-fran—quite close—although my accent reveals that I'm not originally from here. And I'm not used to speaking in this format, so I hope you'll forgive me—bear with me.

Extinction Rebellion, and I'll refer to them as XR from here on, do not speak as experts. We do not offer specific answers or solutions. We believe that is best left to others. However, we do expect the Welsh Government and Merthyr Tydfil County Borough Council to act now, to tell the truth, and to trust the people. Those are our three demands, as it were.

Of the three broad headings, the first is this idea of private profit over public and planetary good. XR believes that the private coal mining companies have knowingly put profit over public good and the well-being of the planet, as well as disregarding their duties to cease activities when their licences expire, and to restore sites afterwards.

Historically, applications to approve opencast sites did not, for whatever reason, sufficiently factor in the risks of default on restoration payments, yet they were approved in spite of this. So, it would appear that there was not at that stage sufficient scrutiny of the applications. Finance has already been referred to, and the Coal Authority said that their role is—and Mark Drakeford referred to this specifically—

'to maintain and develop an economically viable coal industry',

without any reference to safety, to environmental impact or to anything else. That seems to be their remit, and that was borne out in the evidence today that we heard. XR believe that this was certainly the case with Merthyr (South Wales) Ltd—MSWL—at their site at Ffos-y-fran near Merthyr Tydfil with their application to extend their licence in August 2022.

Our role is quite narrow in this. As I said, we are not experts. Our expertise is elsewhere, shall we say. In July 2023, well after the appeal process had been exhausted, four XR activists, myself included, were arrested at Ffos-y-fran and charged with aggravated trespass—an offence involving interference with lawful work. We asserted, and our defence counsel asserted, that the work was not lawful and that we were therefore not guilty of aggravated trespass. That brought the matter before a court and before a judge. XR had identified contradictions between the financial claims made by MSWL in their 2022 application and those made to Companies House. One of our number is a fully qualified practising accountant and he simply compared the application and the financial aspects of it with Companies House and went, 'These don't add up', which is why we took the action.

During the pre-trial process, our solicitors requested through the court that MSWL released to them certain financial documentation that we believed would vindicate us and we would be found not guilty. MSWL declined to release these papers and the Crown Prosecution Service subsequently dropped all charges against us. It would be interesting to know what those documents contained. This is an aspect that I think this committee should give consideration to, as has been referred to by Coal Action Network; they said much the same thing. We have first-hand evidence that there is some reason why that company does not want to reveal those documents. Their annual accounts, which they're supposed to submit every year, were submitted last in December 2022. So, even at the time of their application for an extension, they hadn't submitted their accounts, and that wasn't picked up. As of 4 April 2024, when my group wrote these notes, they were still overdue, so there must surely be grounds to investigate.

Then there's Government financial resources. Local and national governments in Wales do not have the financial resources to pursue legal action; that's recognised in all but the most severe cases. But, consequently, the persistent prevarication and stalling demonstrated by MSWL at Ffos-y-fran is indicative of a company that knows it can flagrantly flaunt planning legislation with complete impunity. Failure to take adequate enforcement action against such companies merely sends the message to other applicants for opencast operations that they can do as they wish, in spite of local public and even local government opposition. So, the local government objects, the local population object, but the scheme goes ahead for whatever reason—it's called in or whatever.

Obviously, Merthyr (South Wales) Ltd aren't here to defend themselves. We are hoping that they will appear at a future meeting, and hopefully that will give them an opportunity maybe to respond to some of your comments. But I did ask about the reasons for the failure of appropriate restoration of opencast mines. Systemically, within the regime that we have—. Maybe David, where are—? And I'll come back to you, Marcus, I certainly will, but we are limited in terms of time. So, where does the system fail us?

Thank you. Diolch. It fails us in a number of places and spaces at a range of levels. It starts and ends in this loop, which has numerous holes in it that are exploited frequently and persistently. This is why we have a legacy of dangerous mines, a legacy of dangerous and open quarry sites, and other extractive industries operating in the same manner. So, I'll talk briefly on these.

We could start with planning policy: is it appropriate, is it strong enough, are these things that need to be shifted? The Welsh Government have planning policy itself that gives guidance to local authorities, who adopt it in their own manner. There is similar guidance around the extractive industries. Is it strong enough and appropriate, or is it easily bypassable? So, that would be one point. 

Our local authorities, we acknowledge, as others have, are cash-strapped, but all other authorities within this, when planning is passed, there are these contractual agreements around restoration. Are they scrutinised, are they strong enough, because they seem to be flagrantly missed, as is seen at East Pits, as is seen at Margam and as we're seeing right now? Are enforcement actions taken at appropriate times, and the use of statutory powers, like seeing timely intervention? One of the things that we keep referring back to is the fact that this void is now full of water but it wasn't six months ago. So, a timely intervention. Simply all we're doing is pushing the can down the road and seeing a company continuing the destruction of our environment, continuing the concern and worry for our communities. 

And then, finally, are our laws adequate? We have power in Wales over our own—. We have our environmental Act, we have our planning policy and guidance, we have these contractual obligations. Is the environmental Act fit for purpose? Can there be amendments in there that would see and enforce—? We're talking about large quantities of water, highly contaminated, not just in opencast sites looking at restoration—there are landfill sites leaching, there are quarry sites leaching. This is a persistent issue across our landscape and in our communities. So, you need to work in the spaces in which you're able to operate and use the powers that you have. They are some of the areas where you have the power to shift things, we believe. 

Fine. Okay. And we will be pursuing some of those points that you raised in greater detail as we go on. Shall we come to Delyth next, and then we can—?

Diolch yn fawr iawn. I was going to ask you some questions specifically about Ffos-y-fran. Firstly, Marcus, you've explained to us the involvement that you've had directly with the site and, as a result of that, with the company. Presumably, that is the involvement that you've had. Have you entered into any discussions with them about the restoration of the site, or was it that action, that direct action, that you took? 

We were looking specifically at greenhouse gas emissions. So, XR comes at this, to an extent, from a restoration point of view, and even then from an environmental aspect of that. The damage that is being done by not restoring the site is considerable. So, no, we didn't enter into negotiations with the company, either on that or on our proposed action. We did, however, deal quite a lot with local residents, and Chris and Alyson Austin have already been referred to, and Coal Action Network we were very much in touch with as to the background, because we see Coal Action Network as bringing together the expertise about the technical aspects, and Chris and Alyson bringing together the social aspects. So, we worked closely with them, but not with MSWL. 

That's really helpful. Thank you so much, Marcus. David, could you talk us through any discussions you've had, please, with the company—whether pushing them about restoration or asking any questions about the restoration?

We haven't, at Climate Cymru—. Other than the council, it appears, no-one has seen the plans, the new restoration plans that might be in place or in the workings. We certainly haven't seen them. I have spent weeks staring into that void as an observer of illegal coaling. Ultimately, they will likely be deeply insufficient, considering the shortfall in funds and that the £80 million previously agreed many years ago was at a different time. So, there seems to be a certainty, and the history—. East Pit will show us how a shortfall in funding will impact so-called restoration plans.

And we'll come back to that, if that's all right. I'm struck by the phrase that you just used, David, because normally we'd say 'staring into the void' when we have this existential dread, but literally here we are staring into a void with all of the dread that Marcus has been alluding to in terms of the impact that this will be having on the climate and what we've already heard. And that void, as has been referred to, is now filling with water. There has been a suggestion that the local authority may pursue restoration or a different type of restoration, with this company being in charge of doing that, and that that different type of restoration that's been reported may just incorporate this contaminated water site. What would your views be on that? I'll go to David first, and then I'll come back to you, Marcus, if that's all right. David, what would your views be on that, if that other type of restoration were to happen instead?

I believe that there are, obviously, people living 270m away from this. It should be within their say as to how and what. This void is—. As an estimate, there is a 150m-high cliff that I've seen orange leachate run through day after day, week after week. With steep sides all around, this is—. And while we observed almost six months of illegal coaling, the void was getting bigger. So, how this looks, how this feels, will it be safe, these are technical aspects, but the community needs to be first and foremost. It does appear to pose a risk. It sits above a significant number of houses, and if you need to pump—. I would just put this straight back and say that the company responsible for the harm needs to be paying for the harm in the way that was agreed initially to restore the land initially.

Thank you, David. Marcus, is that something that you'd agree with in terms of XR's position on this, in terms of the environmental harm, or any environmental harm that might be exacerbated by the full restoration that had been promised in 2007 not happening, and instead we have this void with the water? What would your response to that be?

I think, as has already been clear from the previous presenters of evidence, that completely restoring the site as originally planned is not going to happen, so we're left with what we've got. As David has said, it's still getting bigger, as recently as a couple of days ago. I can confirm that not only is it getting bigger, there's no sign of any measurements. I would have expected a hut to have appeared by the side of it with pumps and things measuring the water quality, measuring the height level, but there does not appear to be any of that, and that's a concern, which further undermines any confidence we ever had in MSWL. I think I can say, since I said at the beginning, that I'm not offering specific solutions, but I think specific solutions will only come, as David said, if the local community is asked to participate. They may want a water feature up there that's made safe of course. But I think getting MSWL out of the picture would be an important priority.

Thank you for that. And, Marcus, in the response that you've just given, you said that the original restoration plans are not going to happen. Do you feel that there's a sense of inevitability here that there's nothing that could be done to compel that company to—? Or even just speaking as a local resident, as you said, is that a sense that you get, that this is an inevitability and that the company—? What are your concerns about that, then?

Not only is it my opinion that it was inevitable that MSWL would walk away from this, but, through Chris and Alyson, much of the local community felt the same, and certainly the two of them were fully expecting this. And it seems to have come as a bit of a surprise to people like the Coal Authority—in their evidence, they seemed surprised that the company had defaulted. Nobody else was.

Okay, thank you, Marcus. David, are you concerned that the company could either abandon the site or could go into it or say that they've gone bankrupt, or—?

It's unclear whether the Welsh Government and Merthyr county council are utilising all of the tools that they have available to ensure that this money, the true money and the true cost of this, is actually recuperated. It seems like we're talking a lot about restoration already at £15 million. We know it's going to cost significantly more than that, and I don't think that a polluter of such a significant scale, whose finances they might want to talk to when they decide to appear—. It appears that they have that money, and I feel like the Welsh Government, potentially, through all legal routes, could be taking them to court—there are directors to be held responsible, there are assets to be seized of a significant value that could ultimately cover the £120 million required for the damage that they have caused. If people resign themselves to £15 million and working around this tentatively, we're going to resign ourselves, as with all of our other issues around former sites, that local authorities are taking on this huge burden that they have no capacity to deal with. This money must—. At this point, it seems worth it to invest money in paying the best lawyers you can to ensure that, by all legal means, this money is restored. If the initial contractual agreements were so weak that there isn't a legal case, that's obviously the first place to start for future issues. But, yes, I think you need to pursue that money with all the power that you have.

Thank you very much for that, David. And, Marcus, finally from me, in terms of what XR would like to see happen with this site, as you've already outlined very eloquently your concerns about the site, what would you like to see happen?

I would like to see the community invited to give their views. I said at the beginning that we don't consider ourselves experts, and certainly not experts in that local community. But I would like to reinforce what Haf Elgar from Friends of the Earth said earlier, in that, to an extent, this was a tragedy that has already happened, and we're playing vague catch-up in trying to recover from it. The important thing, surely, must be to prevent it happening again, and one of the aspects where, we believe, things have not gone well is that mining companies, when they do their environmental impact assessment for something like a coal mine, are not expected to take into account the emissions and the environmental impact of the stuff they're producing and what subsequently happens to it. It's simply not common practice for that to be included in the environmental impact study, which seems bizarre. In fact, a judge in the south of England at the moment is struggling with the concept, that this is so bizarre. A site, which, at the moment, I'm not going to refer to by name, is challenging the environmental impact assessment of a company that produces a high-carbon-footprint product, and they're challenging that the environmental impact assessment is insufficient and should take account of what this product is going to produce environmentally. That, I believe, is something that could happen in Wales. I would like to think it should happen in Wales. And it will be interesting to see what happens in this English example, but the court was dumbfounded, I am told by a witness, when told that there is nothing to require them to include the damage that their product does once it's sold.

Thank you.

Diolch yn fawr. Thank you. Carolyn.

I'd like to ask questions regarding the role of local authorities and the Welsh Government. So, just to clarify, you don't believe that the local authority has got enough legal resources, so you think that, really, the Welsh Government should pursue the directors, then, regarding funding, because funding's an issue. That was to David.

Yes. We're talking about a development that has like an area-wide and, arguably, a planetary-wide impact. It seems, for such large-scale issues, and Merthyr county council is one of the smallest and least resourced, that Welsh Government has a role to play. Whether that's supporting them issuing immediate stop notices, then maybe that's the case. Just to say that I support the views and approach outlined by Coal Action Network and Friends of the Earth earlier in that regard, as to this balance between a local authority—. It's quite an interesting thing that planning policy sits here and then this—this is a multimillion pound company. It's got significantly more resources than a council that's also trying to do a thousand other things for the good of its people.

Do you think they have enough resources, then, for the mineral planning expertise, which then probably has to cover enforcement?

Again, I'd say I support the views and approach outlined by Coal Action Network and Friends of the Earth. Very clear evidence was given to the council and to Welsh Government at the time of illegal mining beyond planning, when the permission had ended—very clear evidence. Here's a video of coal, not rocks, coal coming out of the ground in the pit, taking it out and off-site. No stop notice. So, how these mechanisms work, there is a great harm to the perpetuation of this happening. We can talk about how Bedwas is looking for the same thing to happen. I'm not going to be sitting here in 10 years' time having the same conversation, as the people in 2014 sat here.

This is action and Welsh Government maybe need to take the resource or better resource to ensure that there is an efficient method to deal with this wherever it happens, and we are not just talking about one community, one place. We never have been. This happens around quarrying, as we're seeing up in Pontypridd at the moment. This is happening in old landfill sites that are leaching as well. A similar approach could be taken. Friends of the Earth said this can be independent, contracted workers brought in to address the uniqueness of each situation, but if the public can identify it, what more do you need? The stop notice can take priority.

Do you feel that Welsh local authorities took on board the recommendations of Welsh Government's 2014 report on failure to restore opencast sites and adapted their approach accordingly?

It's unclear if any of the recommendations were adopted, in both the 2014 and 2015 summit papers by Welsh Government and local authorities. What is clear is that in Scotland in 2014, as Scottish Coal went into administration, they enacted the Scotland restoration trust, which takes the money into a separate bond, I understand, but this is something for you to research. Do we just need to have this independent body that takes the money, week in week out, from any of these extractive industries, so it is always there? As Marcus mentioned, if they haven't submitted accounts for two years, they should probably stop their work, because they are just making a hole, a pollution incident bigger and worse, and a lot of the conversation has been about how the local authority will pick up the bill. This absolutely should never have been the case and should never be the case. Proceeding from here, it should be: how do we ensure that polluters pay and we have their money already?

Can I—?

Yes, Marcus.

Sorry, Marcus.

You asked: did David think that the local authority had sufficient resources? I would say they certainly had sufficient resources for their planning authority to compare the financial claims in the application, which were quite detailed—I haven't studied it, but I have read it—and their equivalent submission to Companies House. Our accountant very quickly spotted that there were deficiencies. Whether there were good explanations for that—. I am not in anyway suggesting—. I accept that the company are not here today to answer, and I'm not suggesting that anything improper was done, but we identified discrepancies. I think a local authority would certainly have the resources to explore those discrepancies and determine whether or not they felt they were significant. 

So, the fault there seems to lie with the process that the planning authority goes through, and financial scrutiny seems to be limited—I don't know; again, I'm not an expert on this. But, sort of a framing, a mindset, should be possible where you almost assume from the outset that the company is going to try and default, and assume the worst until you're able to prove otherwise. At the moment, it would appear that there is a great assumption that the company is going to play fair. Now, there are all sorts of reasons why a local authority would want to do that, because, when a company comes along and says, 'I want to set up a company that employs such and such number of people', there is quite a lot of pressure to approve that. So, perhaps, going back to the process of accepting or rejecting an application could include closer scrutiny and comparison on the assumption that there is going to be default.

Thank you. Can I ask you what role should the Welsh Government, the Coal Authority and Natural Resources Wales play in securing the restoration of sites in Wales? Do you think it's working? Is there an understanding of how they may work together to actually implement a plan, going forward? Do you think there's enough—

I don't feel that I have sufficient expertise, really, to answer. I'll hand that to David to comment.

I'd ask that this committee and Welsh Government lobby the UK Government to remove the statutory duty of the Coal Authority to maintain and develop an economically viable coal industry. And I would remind the people in this room that there are at least 0.5 million people, on this very day, who are currently not in their homes due to climate-related, huge flooding, both in China and in Russia—those are just two examples. We need to remove the statutory duty of the Coal Authority to maintain an economically viable coal industry. This is a key point that I would like you to lobby on.

I'd ask for the committee to call on the Welsh Government to step in and take responsibility—this may be the start—and how you go about taking responsibility for or moving forward Ffos-y-fran, and exploring ways to actually see restoration at East Pit, Kenfig and other former sites. That would be a useful thing to come out of this as a starting point. For the committee to write to Welsh Government calling on the new climate change Cabinet Secretary to include the restoration of former opencast coal mines as part of the new coal tip safety legislation, and to seek its own legal advice on the viability of including the restoration of former opencast sites, should the Welsh Government refuse this addition. Explore possible amendments to that legislation, and, as Daniel mentioned earlier, there are other opportunities within—I forget the name of the Bill—the infrastructure Bill. So, it might be that we call on—. I call on the committee to draft a separate piece of legislation on the restoration of former opencast sites, but you might want to include the wealth of quarries and old landfill sites that are currently polluting our land and air, and include that within your work.

Okay. Have you got anything to add? You haven't. Okay. The last question then. Before, we talked about making sure that we have community involvement and input into site restoration, given that MTAN2 emphasises the importance of consultation. So, your views on that, really. 

I think—. I did say I'm not used to giving evidence in this context and now I'm not sure whether I've said this or not, so please stop me if I'm repeating myself. 

Extinction Rebellion believes that the best way to involve the public and local communities is for national Government and local government to set up a pan-Wales assembly or a series of local community assemblies. These would address the restoration of these sites in ways that enhance ecological recovery, rather than causing further damage. The assemblies' recommendations, to be implemented by the national Government, would be the default option and that authority would have to give good reasons why they're not going to implement a recommendation from a community assembly or a citizens' assembly, and there may well be extremely good reasons why they simply can't do that.

I know that, having attended a meeting here at the Senedd, where the citizen's assembly got a bit of a rough ride, shall we say, it was not taken on board fully, I think, by the Senedd that we're not simply handing over responsibility for running the country to random groups of people. There is a process—a very careful process—a process of sortation to select an appropriate cross-section of the population to sit on the assembly. And there are recommendations or advice by experts from across the spectrum, so business, environmental, community and so forth—so it's that broad spectrum—and MPs. I will say MPs, not Assembly Members. MPs are generalists, and it's broadly recognised that when they come to vote they may not have a great deal of expertise on the subject in hand and they follow the good old one, two or three party whip. Now, Caroline Lucas' book is very insightful about MPs voting on a subject they have no knowledge of whatsoever. Not that that happens here, I am absolutely certain it doesn't, does it? [Laughter.] 

No, I was going to take issue with that point there. You saved yourself just in time there, Marcus. [Laughter.]

So, there are processes in place, and if they're followed there's a very good role for community assemblies. The difference between community assemblies and citizens' assemblies is a little bit technical and I won't go into it now, but the gist is there. It is a robust process that could and, I believe, and Extinction Rebellion believes, should be followed. 

Sure. Okay. Thank you for that. You touched on the coal tip safety Bill, which is in gestation at the minute, I believe, within Government. We were expecting to have seen it by now or, at least, pretty imminently. It now seems that that might be slightly delayed. Are you aware at all of whether the Government is considering including or incorporating opencast sites into that legislation, or is that just something that your asking for? 

We're taking this opportunity to ask the committee in its position to do so. 

Sure, and we've already heard that as well from others. So, it's certainly something that we will want to consider as a committee. Okay. You've also touched on other potential legislation and policy changes that you would be keen for us to pursue, so I won't repeat that really in asking you about it. So, maybe, Delyth, if I come to you for some concluding questions.   

Diolch. Well, David, you have already said that you agree with the fact that there needs to be a fresh, independent assessment of the different sites across Wales, looking at the unrestored sites, and how that could be costed and what needs to be done to look at that. And I think that you've already said—. You haven't expressed an opinion, as far as I can remember, on who should lead. Do you have a particular opinion on who should lead that work? And as well as that, while you're thinking about that, whether there should be a body—I don't want to say 'that trumps' all of the other bodies—. But in a situation like what's happening in Ffos-y-Fran, where different bodies are consulting with one another and it doesn't seem clear if anyone could and should intervene and, for example, go in and turn the water pumps back on, do you think that there should be an overarching person with that responsibility—not just power, but responsibility—to do that? I'll go to David first and then, Marcus, I'll come to you, if that's all right. 

That's a very good question. Should there be a single point that takes—. It was very clear to the community, to the observers, the illegal mining and the work beyond the planning period. This was very clear. The only people that took intervention were the public, and I think this needs to be acknowledged. The public took it upon themselves to close down the illegal works that were being undertaken. So, there clearly is an issue. And is that about resource or is that about feeling emboldened enough? Issuing a stop notice should be something a local authority should just feel confident to do, and maybe that's a case of legislation. Does there need to be a single body? Do we need more bodies to do this? I don't know. Maybe we just need to empower those that exist. The police were faster to act upon peaceful protestors stopping documented illegal work—. The planning ends, the work continues. The police were faster to stop that than say, 'Illegal? Is this actually illegal?' All the documentation is there and the footage is there. So, who is enforcing what on who and how? So, do we need to really shift the balance between the interests of people in Wales, our communities and our environment, towards ourselves, each other, and away from the power of industry to essentially do as it will and we pick up the pieces? So, do we need a singular body? It might be worth looking to Scotland and their restoration trusts and how that works. We haven't done a great deal of research there, but they have restored a number of sites, and they've done it with communities. It might be worth looking towards other countries and how they deal with illegal extractive processes.

On that, and before I come to Marcus—because I'm really keen to hear your views on this as well, Marcus—David, are you aware—? Would you point us to any examples in Wales or in other parts of the world, in Scotland or other parts of the world, where there has been a shining example of best practice in terms of restoring an opencast site like this, or anywhere that you get the sense that they, if not have got this right, have got this better?

I had a quick look at some of the Scottish restoration trust work and it appears to be fairly well done. There are a number of case studies that can be read about that appear to involve communities, appear to give value back. There are also a number of not-quite-finished restorations in the same element. So, when we're talking about money, how does this happen? You need to enact the powers to go and grab that money from the people who have caused the harm, is what I would say. Arguably, wherever there are people's assemblies where the power is kind of handed back—one of the case studies in Scotland talks to 15 people from the local community taking on the work to do the restoration—then you're going to do the best job you can, because it's your community, and then you get to say, 'Hey, look at what we made, created, let's all enjoy it together.' That model of community involvement, both in the work—. And it creates space for a just transition away from the mine working that was happening previously.

Thank you very much. Marcus, what David was alluding to in his previous answer about the fact that the police were quicker to act—you were there, and so you saw how, arguably, the system, there are problems with how it's working. Do you think that there should be an overarching enforcer of the enforcers, then?

We don't really feel we have sufficient knowledge or expertise to properly answer that. I'm very happy to defer to Climate Cymru and the Coal Action Network on that. But I note that both of them have said the powers are there, they're just not used. I'm not aware of better examples, but I am aware of a number of worse examples—the Canadian tar sands might perhaps be the most striking of them—where the influence—. Again, this comes back to my very first point at the beginning about private profit over public and planetary well-being. Big money gets into all sorts of places and manages, probably lawfully but almost certainly not what the public expects, to influence public opinion. I mentioned a number of jobs. If a company, big or small, offers a number of jobs, it's difficult for a council to say no or perhaps even to scrutinise it as carefully as they could. So, I think that the default option should be, 'Don't trust an application like that until you have really thoroughly gone through it', and, in the back of your mind, is, 'How could they default on this?' Hopefully, that would mean that whoever—I won't be here doing this in 2034—we don't have another 10-year cycle where this comes back to bite the people of Wales badly.

Thank you both very much indeed.

Indeed. Thank you very much. Thank you to the two of you for your attendance this morning and for the evidence that you've shared with us. The three sessions, actually, have set us up nicely for next week when we'll be pursuing some of the points that you've raised further with other panels as well. So, diolch yn fawr, thank you for being here.

Diolch yn fawr.

Thank you, Chair. Thank you.

Would I be able to make a final statement?

Very, very briefly, then, please.

Yes. We really appreciate that you've made time to scrutinise the situation at Ffos-y-fran, but we express our deep concern—we are 360 organisations and 15,000 people—we express our deep concern at the years at the years of harm caused to our country, our tir, our lifeline. It's harm both to our communities and the land, and we won't get this time back—2014 was a missed opportunity; let's not make now the same. Let's show action, as much as you can. Ultimately, you hold the most power in this room, until people take it into their own account. So, just—. Thank you very much for the time.

That's a timely reminder, I think.

Extinction Rebellion is one of those 360 organisations, so I'm quite content for David to speak on our behalf.

There we are. Thank you so much. Okay. Diolch yn fawr iawn. Thank you.

We'll move on, then, to the next item on our agenda. We have papers to note—5.1 through to 5.6. Are Members happy to note those papers? There we are. Thank you very much. Okay. [Interruption.] Sorry, we're still in session here. Thank you.