Surface coal mine restoration: final report to opencast coal task force

Final report on regulation by Scottish Opencast Coal Task Force's compliance and finance subgroups.



Meeting of the Scottish Opencast Coal Task Force

Compliance and Monitoring Working Group on Thursday 12 June 2014 at 9.30am at Victoria Quay, Edinburgh

1. Welcome and introductions

Russel welcomed everyone to the meeting and, before introductions; he acquainted members new to the group with a brief history of events:

  • Collapse of Scottish Coal and ATH
  • Intervention of KPMG
  • Creation of Task Force and progress made
  • Restoration bonds working group (superseded now by Finance Working Group - first meeting t.b.a.)
  • Start of the consultation on Opencast Coal Restoration: Effective Regulation drafting last July and launch for 12 weeks last December.
  • Formation of SMRT
  • Site disclaiming process
  • Active sites all across central Scotland (Banks, Kier, Halls, Hargreaves)
  • New site in Midlothian with consent
  • Next steps, to report back to task force by the end of 2014 (or sooner)

The group agreed this was a good opportunity to create a national standard.

2. Terms of reference

The draft terms of reference were discussed and views sought. It was clear from these discussions that the remit of the group might be transferable into other areas with lines of commonality.

The level of risk was also discussed and the group agreed that the terms of reference should remain fairly broad until the work plan is agreed and there is a clear plan and availability of sufficient material and evidence.

The group also agreed that community benefit should feature on the terms of reference.

The role of the group is to remain independent and provide recommendations.

It was agreed that discussions should remain structured with written submissions in the first instance. It was noted that the Auditor General should be invited to give evidence.

Discussion ensued around the data collection of skills gaps and it was agreed that an analysis should be carried out to pin point where these gaps are.

Russel advised the group that discussions at the compliance and finance working groups will be shared.

The draft Terms of Reference were approved pending minor edits.

Action: Liaise with Emma Hay around a skills audit of local authorities via the Scottish Planning Skills Forum

Action: Write to the Auditor General, Tim Brian (Inquiry Reporter) and Environmental Health interests to include in the working group

Action: Professor Fleming to circulate a list of potential trainers at the Association of Environmental and Ecological Clerk of Works.

3. Future meetings

It was agreed that it would perhaps be useful to meet at least 3/4 times before the end of October.

Action: Write to Coal Pro, Coal Authority, DECC, RICS, HSE, RSPB, river interests seeking views and opinions

Action: Think about method of letting public know that this working group is happening

4. Update from SMRT

Russel explained that SMRT are now the owners of 7 of the residual SRG site and work around these sites is progressing well.

5. Update from Scottish Government Planning

Graham Marchbank updated the group on National Planning Framework 3 and Scottish Planning Policy and then went on to introduce the consultation paper process and the draft analysis report. Members had already been asked to read the executive summary and invited to comment with further detailed responses requested for the next meeting.

The new Scottish Planning Policy will be launched in Glasgow on 23 June 2014. Jim Birrell commented that a recent Reporter's decision requiring "best endeavours" to form a liaison committee at a minerals site within 12 months or it would fall, was not a strong signal on implementation of policy.

It was agreed that 'risk' 'clarity' and 'transparency' should be the guiding topics throughout this process.

Action: Graham Marchbank to let the group know the details of the launch of the SPP.

Action: Members discussed the wording of the consultation document and agreed to send Graham revised wording as appropriate in order to develop final recommendations.

Action: Formally write to SEPA regarding current legislation and which rules and regulations fall to the agency.

6. Shape and form of an independent compliance unit

Graham provided members with some ideas as a graphic. It was agreed that it in no way represents a settled view.

It was noted that in connection with the idea of an independent unit, Scottish Government has provided Heads of Planning Scotland with £20000 to provide minerals planning training in order to upskill the next generation. The Scottish Government is working with the Improvement Service on that.

Action: George Fleming to email list of people in the IEMA and AEECOW role

Action: George Fleming to forward recently published AEECOW guidance document for planners

Action: Write to John Sheridan of Mineral Products Association re minerals input.

7. Guest speakers

Members were asked if they wish to hear from other invitees at the next meeting. It was agreed that letters should be written to parties in the first instance before any invitations were extended.

8. AOB

There was no other business.

9. Date of next meeting

TBA following responses to write-around.

Scottish Opencast Coal Taskforce

Meeting of the Compliance Working Group on Wednesday 27 August 2014 at Victoria Quay, Edinburgh

1. Welcome and introductions


Russel Griggs


Philip Baker


George Fleming


David McDowall

East Ayrshire Council

David Wilbraham


Ross Johnston


Nicky Wilson


Jerry Mulders


Mike Shiel


George Eckton


Mark Roberts

Audit Scotland

Graham Marchbank

SG Planning

Stuart McKay

SG Head of Fossil Fuels

Wendy McCutcheon

Regulatory Review Group

For Item 4 only:

Philip Lawrence

Coal Authority Chief Executive

Simon Reed

Coal Authority Director of Operations

Rachael Bust

Coal Authority Chief Planner

Apologies were received from Mark North (Kier), Alan Doak ( AED Planning) and Lin Bunten ( SEPA).

2. Minutes from the previous meeting and matters arising

The minutes of the 12 June 2014 meeting were agreed. An action log had been circulated.

ACTION 1: The outstanding action was a paper by Heads of Planning Scotland on the minerals skills audit that GM circulated. It outlines skills gaps in restoration aftercare, decommissioning and mine progress plans, legal and financial guarantees. See Annex F.

The terms of reference were agreed with the exception that Scottish Opencast Communities Alliance be invited onto the group and contact be made with the Mining Institute of Scotland enquiring as to their views on the opencast coal industry.

ACTION 2: GM to contact Malcolm Spaven ( SOCA). GM to contact MS.

RG provided an update on intentions to invite RBS Group to the next Finance Working Group meeting. In relation to finance DM commented that a big concern was the shortfall in cost recovery through planning fees.

3. Audit Scotland

RG welcomed Mark Roberts. MR explained Audit Scotland's ( AS) interest in the operation of the coal sector and that long-term liability was now high on the agenda in relation to risk registers. AS has asked all local authorities with coal reserves for an update then the Controller of Audit will report in 2014/15.

Local authority capacity in financial expertise is a concern and is reflected in a 2011 report into skills drift and early retirement in planning.

AS gets the idea of an independent unit or shared service but stands by and supports LAs' impartial decision-making role. There is a question of value to the applicant from planning fees. AS is now seeing similar risks in landfill, renewables and with unconventional gas across the horizon. AS agrees these are national risks for example in relation to the habitats impacts in E Ayrshire.

RG asked for views on how this could be handled in view of no new money in LA budgets. GE referred to a shared service model in trading standards but there are few others: perhaps shared chemical expertise in the Fire Services.

In reaction to costs and risk, there was a brief discussion about minerals monitoring fees in England. DW reported that SEPA charge their duties to permit holders and experience difficulties in recovering costs from some.

ACTION 3: GM to circulate link to English monitoring fees legislation and other links.

4. Coal Authority

The Coal Authority gave a presentation on effective regulation which is attached as Annex G.

They offered views on objectives (slide 3), an independent unit role (slide 4), site activity in Scotland (slide 6) and a contractual or other service (slide 7). It was explained that they were rich in technical skills lacking amongst some planning authorities (slide 5).

The CA is well versed in accounting for company, financial and other risks and being proactive on monitoring and early intervention through clear reporting which could assist the local authority enforcement role. The CA has a Scottish presence on mine licences and land securities.

Questioned about the Coal Authority enduring, it was pointed out that a favourable outcome was expected from the triennial review (slide 10). Questioned on conflict of interests the CA stated that yes, they licence sites but there is no agenda on the scale of the industry. GF commented that the public are more interested in environmental restoration and that expertise is required.

PB suggested there were attractions to the CA approach for the sake of consistency provided the group was clear about the outcome it is trying to secure.

ACTION 4: WM to circulate regulatory reform material on "primary authority".

ISO 14001 Environmental Management - a globally recognized environmental management standard was also raised for further consideration.

JM asked if the ICU should have regulatory power. PL commented that was a matter for how much risk the Scottish Government was prepared for a unit to bear. SM raised the issue of CA's statutory consultee status.

ACTION 5: GM to clarify with RB and internally.

SR commented compliance is best measured as being against a mine progress plan. RG said the group would need to be clear about available powers for advice from a unit or shared service not being ignored - i.e. a mandatory function.

DM commented that these days any advice would likely be accepted by LA members. NW asked who monitors the unit or service. MS supported DM's point insofar as LAs need to overcome failure risks.

ACTION 6: Potential for a service level agreement?

JM queried accuracy of CA data on employment.

RG thanked the CA representatives for their presentation to the group.

5. Update from Scottish Mines Restoration Trust

RG provided detail on SMRT and its subsidiary Mines Restoration Limited ( MRL) activity across a number of sites. In July 2014 MRL, a wholly owned subsidiary of SMRT took ownership of the seven SRG unrestored sites and began developing plans to restoration plans. MRL have let out a contract for the care and maintenance of the sites whilst plans continue to be developed. The seven sites now under ownership are:-

  • In East Ayrshire:- Dunstonhill, Powharnal/Dalfad and Shiel Farm and Spireslack;
  • In Fife:- Blair House; and
  • In South Lanarkshire:- Glentaggart and Mainshill.

The Trust will be working in partnership to source funding for restoration and to plan, project manage and implement restoration for the public benefit, with the aim of achieving the best restoration solution for each site in the light of financial and other resources available. Discussions on next steps are underway. The overarching aim of SMRT in respect of each site is to provide the local community with a restored landscape and where possible economic benefit.

6. Towards an independent compliance unit

The circulated diagram on LA coal site activity was questioned for its accuracy but GM commented this was LA-derived data and also posted ideas not final answers. RJ commented that regulation needs to account for volatility in the market and site by site. RG confirmed the idea of a unit or service applied to opencast only meantime but may be transferrable.

ACTION 7: Re-check to be undertaken.

7. Review of written evidence

GM said there had been little response for views and that Caroline Edmonstone would pursue outstanding replies form ICE, CIEEM, IEMA, RICS and IMechE.

GM circulated a page with headings to act as a template on which comments are welcome for a final report to the task force. Annex I refers.

ACTION 8: GM and RG agreed to fill out on basis of a unit or service for discussion at the next meeting including "status and ownership". It can be based on legislative options, lessons from regulatory review, national standards and action on advice. GE offered to put it to COSLA leaders. It was agreed that it should also be run past community interests for their views.

8. Date of next meeting

ACTION 9: Caroline Edmonstone will canvass for dates avoiding 13-17 October 2014.

9. AOB

GM referred to parliamentary questions that Willie Rennie MSP had asked about the groups answered recently. These are S4W-22209, 10, 11, 12 and 13 and can be found on the Scottish Parliament website at this link

Scottish Opencast Coal Taskforce

Meeting of the Finance Working Group on Wednesday 30 July 2014 at 10.30am at

Victoria Quay, Edinburgh

1. Welcome and introductions


Russel Griggs


Graham Marchbank ( SG Planning)

Mark North


Phil Garner


Iain Cockburn


David Martin


Michael McGlynn

(Heads of Planning Scotland)

Lin Bunten


Elizabeth Morton

(East Ayrshire Council)

Barry White

(Scottish Futures Trust)

Robin Caldow (independent advisor)

Apologies were received from Niall Lothian (Heriot-Watt), James Fowlie ( COSLA), Caroline Stafford and Stuart McKay (both Scot Gov)

7. (brought forward) Update from SMRT

RG updated the group on SMRT activities (Item 7). He explained that SMRT are now the owners of 7 of the residual SRG sites and work around these sites is progressing well.

4. (brought forward) Sites over the next 10 years

RG brought forward Item 4 for views from industry on how many sites might be brought forward over the next 15 years. This is considered coal price-sensitive (there's a feeling price may not move over next 2 years) and sensitive to exchange rates but if it rose £5-£10 per tonne interest might grow. CCS could also create a market. Activity also affected by UK Gov energy policy. There will certainly be interest in further sites in Scotland with indigenous coal attractive even to a declining coal-fired electricity sector.

ACTION 1: It was agreed that several sites could come forward so a process not a single solution on restoration guarantees was worth pursuing. It was agreed that secretariat should write to industry for written views accepting this will be caveated.

2. Terms of reference

The draft terms of reference were discussed and with two small adjustments agreed.

ACTION 2: Adjusted minutes to be circulated at next meeting for verification.

3. Future meetings

It was agreed to meet again in September 2014 on a date to be arranged.

ACTION 3: Caroline to trawl for dates.

5. Financial options

There was a detailed discussion about the bond market (no longer on the table) and caution in the banking sector. Even for an escrow a company might need to borrow; although safe, it is inefficient (borrow at 4% interest at 0.5%).

It was agreed PCGs have their place where companies are well diversified and can rely on real "scale" but that SMEs or potential new entrants to the industry may need to be assessed for their health. DM mentioned the protection which could be built into a PCG in circumstances where a parent company may fail, or where a parent may sell the guaranteed subsidiary. It was suggested that the provisions of the PCG covering alternative guarantees, or assignability, would be too complicated for planning officers to comprehend. It would be wrong to remove the PCG from the menu of options for that reason, as the planning authorities all have legal and financial officers who could lend their expertise in those circumstances in substitution for the planners.

GM advised that government would be looking for a policy rather than legislative fix. A "how-to" service rather than compliance unit providing such advice was supported. There was a discussion about company goodwill showing on balance sheet assets and a need to identify situations where "assets" are really liabilities.

Risks concerning parent company creditworthiness when shifted to subsidiaries to suit the financial statement of the holding company or wider group were recognised.

At IC's suggestion it was agreed banks were best placed to offer simply worded on-demand guarantees. This transfers risk and policing of creditworthiness from the company (which is hard for SEPA or a LA to assess) to the bank. The local authority side was assured by industry that bank guarantees were secure whilst practice on PCGs could be modified to secure trigger points or trigger value [mention of the style of a bank covenant?] on revision and renewal. RC made the point that the life of a typical bank guarantee is often very much less than the working and after-care periods associated with larger surface mine site - hence problematic for LAs at grant of any planning permission.

ACTION 4: EM to send GM East Ayrshire Council's May options report.

RC said there's a place for escrow accounts but it is highly specialised.

Points were made about where a local authority sits in the pecking order on the list of creditors when a bond is called (e.g. why the bank is typically first); and the availability of re-insurance. BW noted negotiation of this settlement is a difficulty.

Bonds should not be pegged at restoration value but be flexible to the situation on the ground as it unfolds. It was agreed further discussion about the lock-on figure within the section 75 agreement should be pursued.

BW cautioned that: wording of guarantee needs to be checked; that the quantum of the guarantee is adequate; and that there is a mechanism for renewal. He also suggested the UK Guarantee Scheme would be unlikely to cover opencast mining but might cover a railhead as UKGS guarantees infrastructure investment not liability.

LB stated the risk is to the country which is part of SEPA's balancing exercise in licensing. She queried why bank guarantees were not pursued in the past, the answer being that bonds were cheap backed by re-insurers market.

ACTION 4: RG to contact RBS for further advice to group.

6. Impact of planning law

Not discussed.

8. Update from Scottish Government Planning

GM was unable to provide an update owing to a fire alarm and building evacuation. The analysis of responses to the Scottish Government's consultation on Opencast Coal Restoration: Effective Regulation is now published at

ACTION 5: For ease of reference, attendees to note the analysis of responses to the consultation has a summary of finance-related questions on page 48 of the report to which should be added Q16B. For future deliberation, attendees should also be mindful of response rates to yes/no questions which vary from 43% to 86%.

ACTION 6: Group to comment if required, on handouts showing a schematic of an independent compliance unit including one populated with real sites data per authority.

9. Guest speakers

ACTION 7: RG agreed to contact banking sector and invite a speaker to next meeting. He will also speak about derisking PCGs to Niall Lothian who was unable to attend.

10. AOB

The meeting finished 5 minutes early owing to a fire alarm and attendees dispersed.

Scottish Opencast Coal Taskforce

Meeting of the Finance Working Group on

Friday 10 October 2014 at 1.30pm at

Victoria Quay, Edinburgh

1. Welcome and introductions

Russel welcomed everyone to the meeting.

Present: Russel Griggs (chair), Graham Marchbank ( SG Planning), Phil Garner (CoalPro), Iain Cockburn (Hargreaves), David Martin (Banks), Craig McArthur representing Depute Chief Executive

(East Ayrshire Council), Lin Bunten ( SEPA), Robin Caldow (Independent Advisor)

Caroline Edmonstone (Scottish Government)

David Salter and Rob Kellar ( RBS) Item 3 only via teleconference

Apologies: James Fowlie ( COSLA), Mark North (Keir), Barry White

(Scottish Futures Trust), Elizabeth Morton (East Ayrshire)

2. Minutes and actions from previous meeting held on 30 July 2014

The minutes of the previous meeting were approved, pending some minor edits to be made. The East Ayrshire Council May 2014 decommissioning, restoration, aftercare and mitigation financial guarantees report has now been received. It is available at this link:,%20restoration,%20aftercare%20and%20mitigation%20financial%20guarantees.pdf

Action: Caroline to update the minutes reflecting changes sought.

3. Bonding

Rob Kellar and David Salter from RBS took the group through their presentation on RBS Bond processes which the Chair and the group found very useful.

The sub-group asked a range of questions arising from the presentation, covering the absence of a need for an evidence-base in the event of a claim. RBS stated that banks are not as actuarial as insurance companies in the financial guarantee market. A bank guarantee was described as the bank's risk which is where it differs from a PCG.

NL asked about the banks' consideration of company liquidity after 6 months and RBS stated they use a cash model and a judgement about what it would take for a company to go under. RBS confirmed collateral could include cash but also property.

CN continues to see the restoration of abandoned opencast coal sites as a potential very high financial risk to local authorities. In the event of a site being abandoned the full cost of implementing the restoration and aftercare works may require to be carried out by a council that is then reliant on recovering the expenditure from the bondsman.

The carrying out of a restoration scheme will require accurate surveying of the site for the preparation of bills of quantities and tender documents and a very lengthy and complex procurement process all at initial very high cost outlay to a local authority. A local authority is unlikely to have sufficient skilled resources to carry out this procurement procedure.

Equally, by being a signatory to a s75 agreement, a local authority may have entered into a contractual obligation with landowners who may take issue if a council is unable or unwilling to carry out the work timeously and expose itself to financial risk.

The failure of an opencast mine to restored is a breach of planning control.

It is felt that the enforcement regime is not designed for the eventuality of restoring large water filled voids such as may occur at surface coal mines by direct action. Cost recovery is a last resort for planning authorities owing to the investment risk, counter-action and low level of action in the courts. Complications may arise on site notwithstanding the joint and several responsibilities of owners, operators and potentially previous owners. It was noted that historically, that ability of recourse by a Local Authority against a landowner had sometimes been complicated by potential threat of counter-claims around the failure of Local Authorities to fulfil their own obligations to the landowner under the same s75 agreement.

Discussion took place over the practicality of trapping landowner royalty payments, or a portion thereof, in escrow accounts pending completion of restoration. Industry consensus was that this would lead to landowners demanding higher royalty rates which could impact the viability of the proposed scheme.

DM and IC agreed Joint Ventures arrangements between landowners and mining companies to achieve greater landowner accountability were felt to be too complex on commercial grounds to implement in practice.

PG reminded the group that bank guarantees might not be available to all operators dependent on their business portfolio, gearing etc., at a point in time and that cash bonds in escrow accounts were a potentially robust alternative.

There was a suggestion that as long as monitoring was conducted, and a s75 compliant bond was in place, Local Authorities should, as a last resort, already be a in a position under planning laws to enforce s75 restoration obligations against a landowner in the event of a failure of the an operator and a shortfall on actual restoration funding..

Action: RG to capture salient points of discussion in draft report. A role for SFT to get involved in developing and supporting this area to be identified.

4. SEPA's PPC Charging Scheme

Lin took the group through the paper circulated before the meeting and they agreed this was an interesting concept and worth considering.

5. Final reporting / future meetings

RG and GM are working on the draft recommendations to put before the Coal Industry Taskforce which the Energy Minister, Mr Ewing, chairs. Any future correspondence with this group will be done via email.

Action: A draft report will be circulated to both sub-groups during November.

6. AOB

There was no other business arising.

Meeting of the Scottish Opencast Coal Task Force Compliance and Monitoring Working Group on Tuesday 4 November 2014 at 1.30pm

Victoria Quay, Edinburgh


Russel Griggs


Graham Marchbank

SG Planning

Philip Baker


George Fleming


David McDowall

East Ayrshire Council

David Wilbraham


Ross Johnson


Jerry Mulders


Malcolm Spaven


George Eckton


Alan Doak

AED Planning

Simon Bingham


Sandra Reid

Regulatory Review Group

Graeme Walker


Stuart McKay


Caroline Edmonstone



Jim Birrell

Fife Council

Mark North

Kier Mining

Elizabeth Morton

East Ayrshire Council

1. Welcome

Chair Russel Griggs ( RG) welcomed everyone to the meeting and the above apologies were noted.

SR was then invited to speak about National Standards. Sandra reminded the sub-group that national standards do not apply in planning. Scottish Government is still working on scope of primary authority. JM asked whether in legislation the enforcing authority has to take the primary authority view and it was commented they have to take it into account.

2. Minutes from the previous meeting held on 27 August 2014

The minutes were approved as an accurate record of discussions and all actions noted as either complete or in progress.

3. Update from the Finance Working Group

RG reminded the sub-group that at the last meeting of the finance working group on 10 October representatives from RBS took the group through a presentation on bank guarantees, which is their preferred option. This guarantee is an agreement between the bank and the local authority (the LA does not need to conduct the due diligence.

It was clear that members of both groups were keen to have a more user-friendly approach to guarantee templates and welcomed the news that Scottish Government finance teams would play a part in this process also, given that they carry out a similar function for other complex local authority work streams. SG will also rate the banks on a national standards approach.

There was also a discussion around landowners taking more responsibility. In respect of bonding and enforcement, multiple ownership difficulties had been discussed by the finance sub-group and the complexity and risk of JV is understood. An approach to representative body Scottish Land and Estates ( SLE) was supported.

Action 1: GM to contact SG Finance Directorate to explore SG/ SFT/ LA provision of a structure on bank guarantees.

Action 2: GM to consider a way of approaching SLE in the report to the Task Force.

4. SEPA compliance scheme

SEPA have been measuring compliance since 1998 with their scheme in place since 2009 which looks at 10,000 site licences across the country. SB noted that SEPA's annual report on compliance is due to go live on Wednesday 5 November 2014.

The group agreed that this was a helpful incentive to drive compliance and lengthy discussion ensued around this. Generally SEPA's compliance monitoring has been annual but is moving to continuous rolling. DM highlighted planning authority enforcement charters; the fat that a planning condition may ask SEPA to do certain things and asked how reserving enforcement action would chime with SEPA-style licensing. This was important for public perceptions of who does what and why.

Action 3: PB agreed to provide GM with a copy of the compliance scheme that Banks adhere to in Northumberland.

Action 4: PB to provide JM with community liaison papers.

Russel then invited MS to take the group through the paper which he circulated prior to the meeting providing the thoughts from the Scottish Opencast Communities Alliance ( SOCA). These fell into three headings: strategic context; shared services/new processes and assessing financial information. His concern was the scaling back of restoration. Offering operators some slack was not supported by SOCA. His paper referred to stalled sites to which the new regime should also in SOCA's view apply. Appropriate skills gaps and commercial confidentiality must be overcome as far as possible in assembling adequate financial guarantees.

RG commented that disciplines in the system e.g. a £10m bank guarantee would prevent a £10 overdraft facility. It was commented that this may make the industry a business for big safe companies.

Action 5: RG offered to show MS around a site with scaled back restoration which was supported by the community.

5. Draft report to Task Force by sub-groups

GM and RG are currently working on the draft report. The group notably COSLA noted the tight timescale for comments in order to meet the deadline for the final report to go to the next and final meeting of the Scottish Coal Industry Taskforce on 16 December with, where necessary on actions that require it, a consultation period thereafter.

The group all agreed that the report should reflect the need for a robust system that can operate consistently.

GM had circulated a graphic to take the group through highlights of the report and noted comments made by the group to feed into it, reminding the sub-group it should be their report. The generally front-loaded non statutory ways of improving the planning process were broadly supported. On the matter of a statutory mine monitoring fees regime RG commented that the idea of mine monitoring fees would be to assess number of visits over predicted life of site and require a site lump sum up front for specified purposes.

PB commented this may be seen as an up-front disincentive to investor confidence

Action 6: Draft report to be circulated to both sub-groups by the end of November.

6. Any other business

There was no other business raised.


Email: Graham Marchbank

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