An AGS Member Company has raised concerns regarding the Coal Authority and Coal Mining Risk Assessments (CMRAs). In summary, those concerns arise as a result of the Coal Authority both:
- acting as a Statutory Consultee for planning applications (in relevant areas) and thus providing related guidance for developers and
- undertaking CMRAs on behalf of third parties as a commercial service.
The Coal Authority responded to the Member’s initial enquiries by providing a copy of their Policy document describing how they implement an ethical wall between the team that produce CMRAs and the staff who deal with the Coal Authority’s planning obligations.
Nonetheless, concerns remained:
- that the Coal Authority was both gamekeeper and poacher and was (or may be perceived to be) applying different standards to CMRAs produced by the Authority to those prepared by commercial consultancies and
- that the Coal Authority was not fairly competing in the market to provide CMRAs.
The AGS Loss Prevention Working Group has made preliminary enquiries with a lawyer specialising in Competition Law. He advised that there may be aspects relevant to the Competition Act 1998 (which prohibits undertakings from abusing their dominant position in a market). There have been cases where one entity is entrusted to carry out a form of approval process on behalf of the state while simultaneously carrying out its own competing service and these cases would suggest that the safeguard measures the Coal Authority has set out in its response may be insufficient. There is also the issue of State aid having an adverse effect on the market which can arise where there is cross-subsidisation between a public function and a competitive market one.
Request to AGS Members
The AGS would like to assess the extent of this issue and determine whether we should commission a formal legal opinion, or take some other action. If you have had similar (or indeed contrary) experience to the AGS Member, or have concerns about this issue, please let us have some brief details by e-mail to email@example.com .