A dispute arose between the Welsh authorities and the company proposing to build the £1.3bn renewable energy project over deadlines in the development consent order (DCO).
In Tidal Lagoon (Swansea Bay) plc v Secretary of State for Business, Energy and Industrial Strategy and others [2022] EWCA Civ 1579, the court considered the difference between ‘begin’ and ‘commence’—under the DCO, the authorised development was to ‘commence no later than the expiration of five years…’. The company argued that this requirement could not be construed as replacing the time period under the Planning Act 2008, which provided a five-year period for the development to be ‘begun’. It contended this meant two separate time periods had been set, which meant the DCO was still in force and therefore the company could apply for an extension.
The Welsh authorities, however, successfully countered that this approach was ‘dysfunctional and contrary to the clear intention of the legislation’.
Dismissing the company’s appeal, Sir Geoffrey Vos, Master of the Rolls, Sir Keith Lindblom, Senior President of Tribunals, and Lord Justice Stuart-Smith said: ‘We were initially attracted by the company's argument that… it must have been intended to create two different time periods: one to decide when the DCO lapsed under [the 2008 Act] and the other to decide the time by which the development had been commenced.
‘Ultimately, however, we concluded that this argument proves too much… 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.’
