Town and country planning – Development consent order – Tidal lagoon – Appellant obtaining development consent order (DCO) authorising construction of tidal lagoon electricity generating station – Appellant failing to “commence” development within specified period – Court refusing declaration that development “begun” pursuant to sections 154 and 155 of Planning Act 2008 – Appellant appealing – Whether judge erring in law in construction of DCO and relevant legislation – Appeal dismissed
The appellant applied to the first respondent secretary of state under section 37 of the Planning Act 2008 for a development consent order (DCO) authorising the construction of a tidal lagoon electricity generating station across Swansea Bay.
The respondent accepted the recommendation of an examining authority and approved the application. The DCO was made to come into effect on 30 June 2015.
The consent would lapse if the project did not commence within five years.
In 2019 and 2020, the appellant carried out some, but not all, ground investigation and survey works pursuant to the DCO. Accordingly, the appellant accepted that it had not “commenced” the development within five years as required by requirement 2 of the DCO.
However, the appellant 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 Act.
The judge decided, on the basis that there was no difference in the meaning of the words “begin” and “commence”, and adopting a purposive construction of the legislation, that the appellant was wrong. Requirement 2 and the definition of “commence” in the DCO should be construed so as to modify and/or exclude section 154 or 155 or to exercise the power under section 120(5), which involved a clarification of, and no injustice to, the language used and gave effect to its purpose: [2021] EWHC 3170 (Admin); [2021] PLSCS 202. The appellant appealed.
Held: The appeal was dismissed.
(1) The essential issue before the court was whether the judge was right to construe requirement 2 and the definition of “commence” in article 2(1) as modifying or excluding sections 154 and 155 or as an exercise of the power under section 120(5).
It was necessary first to consider whether “commence” in the DCO carried the same meaning as “begin” in sections 154 and 155. The court’s task was simply to establish whether or not the meaning of those two words, in the particular context in which each of them was used, was in substance different or the same.
In the present case, the two words, properly construed in their respective contexts, carried the same meaning in the relevant legislative provisions. First, the word “commence” in requirement 2 was defined in the DCO itself as meaning “begin to carry out any material operation”. That formulation corresponded to the concept in section 155(1) of the development being taken to “begin” when any material operation “begins to be carried out”.
The words were used in the same sense to deal with the time within which the consent conferred by the DCO might validly be implemented. There was nothing in the 2008 Act or the DCO to warrant the conclusion that they carried different meanings and started different time limits.
(2) The difference between the respective definitions of a “material operation” in article 2(1) and section 155 reinforced the proposition that requirement 2 was deliberately introduced as a departure from the default time limit under section 154(1) (a) and regulation 6.
The underlying purpose of the time limits in both sections 154 and 155 and requirement 2 was to prevent the life of an unimplemented DCO from surviving for an unknown and possible lengthy period without a start being made on the ground. The common purpose here was to limit the life of the DCO to encourage the early implementation of such projects and to avoid consents remaining extant indefinitely.
(3) Looking at the DCO as a whole, its natural meaning was that the provisions for commencing the development and for initiating procedures for the compulsory acquisition of land were to take place within the same five-year period.
The provisions of sections 154(1) and (2) on the one hand and sections 154(3) and (4) on the other hand envisaged that the authority to compulsorily purchase land would cease to have effect at the same time as the DCO ceased to have effect. Both allowed the setting of a period different from the prescribed period, which operated if no other period was specified in the DCO. It would have been illogical and dysfunctional to create inconsistent arrangements for the period of operation of the DCO on the one hand and the draconian power to acquire land compulsorily on the other.
(4) Requirement 2 was to be construed as constituting an “other period” specified by the DCO within the meaning of section 154(1)(b), displacing the period prescribed by section 154(1)(a) and regulation 6. Section 154(2) meant that the DCO ceased to have effect at the end of the period specified in requirement 2 because the works had not been “commenced” by that time. The relevant “material operations” required to trigger the one and only applicable time period were limited by the definition of “commence” in article 2(1).
There was only one relevant meaning of “material operations” to trigger the “commencement” of the requirement 2 time period contained in article 2(1). It was sufficiently clear from the terms of the DCO that it made use of both sections 154(1)(b) and 120(5) to specify another time period within which the development had to be begun before the DCO would lapse and modified the material operations that could be considered as triggering both the beginning and the commencement of development. The appellant’s failure to undertake the necessary material operations within the requirement 2 time limit meant that the DCO ceased to have effect on 30 June 2020.
Accordingly, the appellant was not entitled to the declarations sought. It had neither begun nor commenced the development under the DCO within the only applicable time limit in requirement 2, and the DCO had ceased to have effect so that the appellant was not entitled to apply to extend the period set by requirement 2.
Michael Humphries KC and James Kon (instructed by Asserson) appeared for the appellant; Mark Westmoreland Smith and Charles Streeten (instructed by the Government Legal Department) appeared for the first respondent; Emyr Jones (instructed by Geldards LLP) appeared for the second respondent; Douglas Edwards KC (instructed by the Chief Legal Officer) appeared for the third respondent.
Eileen O’Grady, barrister