In Tidal Lagoon (Swansea Bay) plc v Secretary of State for Business, Energy and Industrial Strategy and others [2022] EWCA Civ 1579; [2022] PLSCS 195, the Court of Appeal ruled that a developer’s permission for a tidal lagoon electricity-generating station had expired because work did not commence within the five-year deadline.
The Swansea Bay project obtained a development consent order in June 2015, which provided that the development must commence no later than five years from the date that the DCO comes into effect and included a definition of the word “commence”. The definition in the DCO excluded significantly more pre-commencement preparatory works than the definition of the word “begin” in section 155 of the Planning Act 2008.
It was common ground that certain works were undertaken in 2016, which meant that the development had “begun” within the meaning of section 155, but not “commenced” within the meaning of the DCO.
The company issued a Part 8 claim seeking declarations from the High Court providing that it was entitled to apply to extend the time limit for complying with the requirements of the DCO. The company argued that the five-year period for commencement starting on the date that the DCO came into effect should not be construed as replacing the time period in sections 154(1) and 155 of the Planning Act 2008. Instead, the DCO had created “two relevant time periods – one for beginning and the other for commencement of development”. However, 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 company was wrong.
The company appealed the ruling. The court was initially attracted by the company’s argument that two different time periods were created, because the DCO took the trouble to incorporate a new definition of “commence” and set a time limit that was different from the one for the development to be “begun”. However, after a deeper analysis, the court concluded that his interpretation would create “a dysfunctional planning situation that has never been intentionally created either in infrastructure development projects or in planning permissions more generally”.
Apart from the major issue above, the court also took into consideration the effects that this interpretation would cause for future projects, as they provide that: “The consequences of the construction proposed by the company would be undesirable. DCOs could be left on the stocks for years, inhibiting future development and placing landowners at potential risk of delayed compulsory purchases.”
For the reasons above, the court concluded that the DCO ceased to have effect at the end of the five-year period as the works had not been “commenced” and dismissed the appeal.
This case shows the importance of being precise when drafting the wording of a DCO, but also shows that any mechanism must be functional in a planning sense, or it could be overridden by the courts if they apply a purposive approach.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
