Town and country planning – Approval – Tidal lagoon – Claimant granted permission to build tidal lagoon electricity generating station – Claimant failing to “commence” development within specified period – Whether claimant entitled to declaration that development “begun” pursuant to sections 154 and 155 of Planning Act 2008 – Claim dismissed
In February 2014, the claimant applied to the first defendant secretary of state under section 37 of the Planning Act 2008 for permission to build a tidal lagoon electricity generating station across Swansea Bay. The proposal was to build a 9.5 km seawall from the sea bed adjacent to Swansea Docks to form a lagoon extending 3km into the bay between the Rivers Tawe and Neath to harness tidal energy. That was to be achieved by controlling sea water going into and out of the lagoon during tidal cycles to power turbines which would produce up to 320MW of electricity.
A report by an examining authority on behalf of the defendant recommended approval of the application. It included a draft order which contained a definition of the word “commence” and a requirement as to the commencement of the development, but it did not define the word “begin”. The recommendation of the report was accepted, and the order was made to come into effect on 30 June 2015. Consent was given under the special rules in the 2008 Act for nationally significant projects. The consent would lapse if the project did not commence within five years.
In 2019 and 2020, the claimant carried out ground investigation and survey works pursuant to the order but some remained to be carried out. Accordingly, the claimant accepted that it had not commenced the development within five years as required by requirement 2 of the order.
However, the claimant sought a declaration that it had “begun” the development for which the order granted consent within the meaning of section 155 of the 2008 Act during the period required by section 154 of the 2008 Act.
Held: The claim was dismissed.
(1) Powers conferred by parliament might be lawfully exercised only in furtherance of their purpose. The purpose for which a power was conferred, and hence its ambit, might be stated expressly in the statute or implied. The purpose had to be inferred from the language used, read in its statutory context, having regard to any aid to interpretation which assisted in the particular case. Whether the purpose was stated expressly or inferred, the exercise was one of statutory interpretation which required the court to identify the meaning of the words in question in the particular context.
However, the intention of parliament was an objective concept and a shorthand reference to the intention which the court reasonably imputed to parliament in respect of the language used. In identifying the meaning of the words used, the courts employed accepted principles of interpretation as useful guides. So far as possible, legislation had to be read in a way which was compatible with human rights and individual freedoms: R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 1 EGLR 129 considered.
(2) The order in the present case had the status of a statutory instrument. Its construction was a matter of statutory interpretation and turned upon whether there was a material difference between the words “commence” as used in the order on the one hand, and “begun” as used in section 154 of the 2008 Act or “begin” as used in section 155 on the other.
The modern approach to statutory construction was to have regard to the purpose of a particular provision and interpret its language, as far as possible, in a way which best gave effect to that purpose. In the context of interpreting planning permissions, that was an objective exercise in which the court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words and common sense. Planning permission was granted under a statutory framework. If parliament defined its terms in an Act (whether by enlarging or by restricting the ordinary meaning of a word or expression), it had to intend that, in the absence of a clear indication to the contrary, those terms as defined would govern what was proposed, authorised or done under or by reference to that Act: Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 and Barclays Mercantile Finance Ltd v Mawson [2004] UKHL 51; [2005] 1 AC 684 considered.
(3) In the present case, the task was to identify the meaning of the words used in the order. The common meaning of the word “commence” was the same as the word “begin”. The fact that the definition in article 2 of the order at the outset equated the word “commence” with “begin” did not suggest that the definition was intended to make a distinction between the two words. However, the definition then went on to set out the trigger for commencement which might be at a different point in time to the trigger for begin/begun in the legislation. That suggested such a distinction.
As a matter of language, there was a lack of clarity as to whether or not there was an intention to modify and/or exclude sections 154 or 155 or to exercise the power under section 120(5). The purpose of requirement 2 of the order was the same purpose which lay behind section 154, and that was to limit the life of the order so as to encourage the early implementation of projects and to avoid consents remaining extant indefinitely.
Moreover, investigatory works might be carried out pursuant to article 15 of the order, which made express provision for such works to be carried out with necessary safeguards and compensation for any damage. Although there might be more than one statutory objective, it was unlikely that a similar purpose was sought to be achieved by the definition of the word “commence” in article 2. Having regard to the size and nature of the project, it was unsurprising that the other specified matters were excepted from material operations which by virtue of article 3 commenced the development.
Michael Humphries QC and James Kon (instructed by Asserson) appeared for the claimant; Mark Westmoreland Smith (instructed by the Government Legal Department) appeared for the first defendant; Emyr Jones (instructed by Geldards LLP) appeared for the second defendant; Douglas Edwards QC (instructed by the Chief Legal Officer) appeared for the third defendant.
Eileen O’Grady, barrister