TIDAL LAGOON (SWANSEA BAY) PLC v SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY

A development consent order must be construed objectively, in its statutory and planning context, so as to give effect to its purpose. Where an order specifies a period for commencing development and defines commencement by reference to particular material operations, those provisions may replace the statutory default period and modify the operations capable of implementing the consent.

No express statement that the order exercises a statutory power to apply, modify or exclude another provision is required. If the specified operations are not undertaken within the single applicable period, the order ceases to have effect under section 154(2) of the Planning Act 2008. A construction producing separate periods for beginning and commencing the same development should be rejected where it would undermine the statutory policy against indefinitely surviving, unimplemented consents.

The appellant company obtained a development consent order for a tidal lagoon electricity-generating station in Swansea Bay. Requirement 2 required the authorised development to commence within five years after the order came into effect. Article 2(1) defined commencement more narrowly than the statutory definition of when development begins.

Investigation and survey works undertaken in 2016 were material operations under section 155 of the Planning Act 2008, but they did not satisfy the order's definition of commencement. The company sought declarations that the statutory period for beginning development and the order's period for commencement were separate, and that the order therefore remained effective.

HH Judge Jarman KC, sitting in the Administrative Court, rejected that construction. The company appealed on the ground that the judge had wrongly treated Requirement 2 and article 2(1) as modifying or excluding sections 154 and 155. The central issue was whether the order created one implementation period or two distinct periods.

1. Appeal dismissed. Requirement 2 constituted the “other period” specified under section 154(1)(b) of the Planning Act 2008. It displaced the default period prescribed by section 154(1)(a) and regulation 6(1) of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015.
2. The words “begin” in sections 154 and 155 and “commence” in the order had the same substantive meaning in their respective contexts. Both concerned the point at which the consent was validly implemented. The order's definition of commencement corresponded to the statutory concept of beginning development through a material operation, although it deliberately excluded specified preliminary works.
3. Article 2(1) and Requirement 2 exercised the power in section 120(5)(a) to apply, modify or exclude statutory provisions. They modified the material operations capable of triggering implementation. The order did not need to state expressly that this statutory power was being exercised.
4. The statutory purpose was to encourage timely implementation and prevent an unimplemented consent from surviving indefinitely. The company's proposed construction would have produced separate periods for beginning and commencing development. Development could then have been begun while remaining incapable of lawful commencement without a later amendment. That result would have been artificial and dysfunctional.
5. The order as a whole supported a single period. Requirement 2 and article 27(1) aligned the periods for implementation and the exercise of compulsory acquisition powers. The model provisions and explanatory memorandum also indicated that “begin” and “commence” had been used interchangeably. The absence of any explanation for a departure from the model provisions further supported that construction.
6. The investigation and survey works did not fall within the order's restricted definition of commencement. The necessary material operations were not undertaken by 30 June 2020. Under section 154(2), the order therefore ceased to have effect on that date. The company was neither entitled to the declarations sought nor able to apply thereafter for an extension of Requirement 2.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Administrative Court's conclusion that the development consent order had ceased to have effect.
2. Administrative Court: HH Judge Jarman KC rejected the company's proposed construction. He held that Requirement 2 and the definition of commencement modified or excluded the default operation of sections 154 and 155 of the Planning Act 2008. No neutral citation for that decision is stated.