Pursuant to her powers under the Planning Act 2008, the Secretary of State made a development consent order, the Swansea Bay Tidal Generating Station Order 2015 (“the Order”), which granted the developer consent for the construction of a tidal lagoon electricity generating station. Section 154(1) of the Act provided that development under a development consent order had to be “begun” before the end of (a) “the prescribed period” or (b) such “other period” as was specified in that order. By regulation 6 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015, the “prescribed period” was before the end of a period of five years beginning on the date on which the development consent order was made. Schedule 1 to the Order provided that the development had to “commence” no later than the expiration of five years beginning with the date that the Order came into effect, which was three weeks after it was made. It was common ground that certain works undertaken pursuant to the Order in 2016 were enough for development to have been “begun” for the purposes of section 154 of the Act (as that term was defined in section 155) but were insufficient for development to have “commenced” for the purposes of the Order (as that term was defined in article 2(1) of the Order). In 2021 the developer brought CPR Pt 8 proceedings, seeking declarations that it had “begun” the development before the end of the prescribed period, thus satisfying section 154(1)(a), and that, therefore, the Order had not ceased to have effect. The judge refused to grant the declarations sought, holding that the definition of “commence” in article 2(1) of the Order had the effect of excluding or modifying sections 154 and 155 of the 2008 Act such that the works undertaken pursuant to the 2015 Order did not “begin” the development within those sections.
On appeal by the developer—
Held, appeal dismissed. The word “commence” as used in the Swansea Bay Tidal Generating Station Order 2015, and the word “begin” in sections 154 and 155 of the Planning Act 2008, properly construed in their respective contexts, carried the same meaning. The words were used in the same sense and dealt with the same thing, which was the time within which the consent conferred by the Order might validly be implemented. There was nothing in the relevant provisions of the 2008 Act itself or in the Order to warrant the conclusion that, despite the words being used to deal with the same thing, they should be regarded as carrying different meanings and starting different time limits. The underlying purpose of the time limits provided for by both sections 154 and 155 and by the relevant requirement of the Order was to prevent the life of an unimplemented development consent order from surviving for an unknown and possible lengthy period without a start being made on the ground and to limit the life of such orders so as to encourage the early implementation of such projects and to avoid consents remaining extant indefinitely. The natural meaning of the Order as a whole, which provided clarity and consistency, 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. It would have been illogical and dysfunctional to create inconsistent arrangements for the period of operation of the Order on the one hand, and the draconian power to acquire land compulsorily on the other. Therefore the relevant requirement was to be construed as constituting an “other period” specified by the Order within the meaning of section 154(1)(b) of the 2008 Act, displacing the period prescribed by section 154(1)(a) and regulation 6 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015. 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) of the Order. It was sufficiently clear from the terms of the Order that it (a) 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 Order would lapse, and (b) modified the material operations that could be considered as triggering both the beginning and the commencement of development. Accordingly, since the developer had neither begun nor commenced the development under the Order within the only applicable time limit in the relevant requirement, the Order had, pursuant to section 154(2) of the 2008 Act, ceased to have effect when the time limit expired in June 2020 (paras 35–41, 51–54).
Michael Humphries KC and James Kon (instructed by Asserson) for the developer.
Mark Westmoreland Smith and Charles Streeten (instructed by Treasury Solicitor) for the Secretary of State.
Emyr Jones (instructed by Geldards LLP) for the Welsh Ministers.
Douglas Edwards KC (instructed by Chief Legal Officer, City and County of Swansea Council, Swansea) for the City and County of Swansea Council.