Tidal Lagoon (Swansea Bay Plc) v Secretary of State for Business, Energy and Industrial Strategy

The Court of Appeal was concerned with the construction of the Swansea Bay Tidal Generating Station Order 2015 (the DCO) and, in particular, whether a five-year time limit in Requirement 2 (for the development to "commence") operated in addition to, or instead of, the five-year prescribed period for the development to be "begun" under section 154(1) read with section 155 of the Planning Act 2008 and regulation 6 of the 2015 Regulations.

The court held that the DCO, by the language of Requirement 2 and the DCO definition of "commence", specified an alternative time period for implementation within the meaning of section 154(1)(b) and deployed the power in section 120(5) to modify the meaning of material operations. Consequently the Requirement 2 period displaced the default prescribed period and, because the works relied on did not fall within the DCO definition of "commence", the DCO ceased to have effect at the end of the Requirement 2 period.

The court rejected the appellant's construction that would have created two concurrent but different time limits (one for "begin" under section 154/155 and another for "commence" under the DCO), as such a construction would be dysfunctional and contrary to the statutory purpose of limiting the life of unimplemented consents.

Background and parties: The claimant/appellant, Tidal Lagoon (Swansea Bay) PLC (the Company), obtained a development consent order (the DCO) in June 2015, drafted largely by the Company but made by the Secretary of State under the Planning Act 2008. The principal respondents were the Secretary of State for Business, Energy and Industrial Strategy, the Welsh Ministers and the Council of the City and County of Swansea.

Nature of the claim and relief sought: The Company sought declarations that it had "begun" the development for the purposes of section 155 within the prescribed five-year period and, therefore, that the DCO had not ceased to have effect so that it could apply to extend the period for compliance with outstanding pre-commencement requirements.

Procedural posture: This is an appeal to the Court of Appeal from the Administrative Court (HH Judge Jarman KC), which had construed the DCO and relevant statutory provisions against the Company. The claim before the Administrative Court challenged the effect of Requirement 2 and the DCO definition of "commence" on the operation of sections 154 and 155 of the Planning Act 2008.

Issues framed:

• Whether the DCO’s Requirement 2 and the DCO definition of "commence" created a separate, additional time period for "commencement" that left the prescribed five-year period for "beginning" under the Act in force;
• Whether Requirement 2 should be construed as specifying "such other period" within section 154(1)(b) thereby displacing the default prescribed period; and
• Which material operations counted to trigger the operative time period.

Reasoning and outcome: The court applied ordinary principles of statutory construction and purposive interpretation. It concluded that "commence" in Requirement 2, as defined in article 2(1) of the DCO, was to be read as corresponding to the concept of "begin" in section 155: the DCO had deliberately specified an alternative time period using the power in section 154(1)(b) and had, by article 2(1) and section 120(5), modified the class of material operations which would trigger that single applicable period. The court found the appellant’s construction (producing two independent and potentially coexisting time limits) would generate an impractical and undesirable result inconsistent with the statutory purpose of preventing consents remaining extant indefinitely, and would also be inconsistent with the treatment of similar language in the model provisions and practice.

Subsidiary findings and context: The court observed that the DCO expressly disapplied or refined which pre-commencement works would amount to commencement, permitting certain investigations to occur before formal commencement. The consequence of the appellant’s failure to undertake material operations falling within the DCO definition of "commence" by 30 June 2020 was that the DCO ceased to have effect under section 154(2).

This was an appeal from the Administrative Court. The Court of Appeal dismissed the appeal. It held that Requirement 2 of the DCO, read with the DCO definition of "commence" and the power in section 120(5) of the Planning Act 2008, specified an "other period" within section 154(1)(b) which displaced the prescribed period and limited the material operations that could trigger implementation. Because the Company had not carried out material operations within the DCO definition of "commence" by the Requirement 2 deadline, the DCO ceased to have effect on 30 June 2020. The appellant’s construction creating two separate time limits was rejected as dysfunctional and contrary to the statutory purpose.

Appeal to the Court of Appeal (Civil Division) from the Administrative Court (Queen's Bench Division) before HH Judge Jarman KC (Swansea Civil and Family Justice Centre) arising from Claim No CO/1638/2021. The High Court had construed the DCO as displacing the default prescribed period and held that the DCO had ceased to have effect; that decision was upheld on this appeal.