Tidal Lagoon (Swansea Bay) Plc v Secretary of State for Business Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 25 November 2021 |
| Neutral Citation | [2021] EWHC 3170 (Admin) |
| Docket Number | Case No: CO/1638/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3170 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Swansea Civil and Family Justice Centre
Caravella House, Quay Parade, Swansea SA1 1SP
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/1638/2021
and
and
Mr Michael Humphries QC and Mr James Kon (instructed by Asserson) for the claimant
Mr Mark Westmoreland Smith (instructed by the Government Legal Department) for the first defendant
Mr Emyr Jones (instructed by Geldards LLP) for the second defendant
Mr Douglas Edwards QC (instructed by the Chief Legal Officer) of the third defendant
Hearing dates: 3 November 2021
Approved Judgment
HH JUDGE Jarman QC:
Introduction
In this Part 8 claim, I shall refer to the respective parties as the Company, the Secretary of State (in which I include the Secretary of State for Energy and Climate Change as formerly named), the Welsh Ministers and the Council. At the hearing before me, the Company was represented by Mr Humphries QC and Mr Kon. The Secretary of State, who granted to the Company The Swansea Bay Tidal Generating Station Order 2015 (the Order), the interpretation of which is in dispute in this case, was represented by Mr Westmoreland Smith. The Welsh Ministers, who since the Wales Act 2017 now have power to amend or revoke the Order, was represented by Mr Jones. The Council, in whose area land subject to the Order is situated and who is responsible for the discharge of requirements in the Order, was represented by Mr Edwards QC and (in writing) Mrs Graham Paul.
The Company seeks two declarations from the court:
i) That it has ‘begun’ the development for which the Order granted consent within the meaning of section 155 of the Planning Act 2008 during the period required by virtue of section 154 of the Planning Act 2008 (i.e. by 8 June 2020); and, if so
ii) The Order being a development consent order that has not ceased to have effect, the Company is entitled to apply to change the wording of Requirement 2 in Part 3 of Schedule 1 to that order to extend the period within which the authorised development must “commence” (as defined in Article 2 thereof).
There are no material disputes of fact between the parties, and they have very helpfully agreed a statement of facts pursuant to a direction dated 8 July 2021 by Holgate J. The outline of the facts below is taken from that statement. I shall refer to the Act mentioned in the first declaration as the 2008 Act (the sections set out below are sections of that act unless otherwise stated), and to the Town and County Planning Act 1990 as the 1990 Act. References to Regulations are those contained in the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015.
It is not in dispute that if the first declaration were granted, then the second must follow. However, each of the defendants say that the first declaration is not appropriate, as it is based upon an incorrect reading of the terms of the Order, which has the status of a statutory instrument. Its construction, therefore, is a matter of statutory interpretation and turns upon whether there is a material difference between the words ‘commence’ as used in the Order on the one hand, and ‘begun’ as used in section 154 or ‘begin’ as used in section 155 on the other. The Company says there is. Each of the defendants say there is none.
The making of the Order
In February 2014 the Company submitted an application to the Secretary of State for permission under section 37 of the 2008 Act to build a tidal lagoon electricity generating station across Swansea Bay. The proposal was to build a seawall from the sea bed adjacent to Swansea Docks over a length of 9.5km to form a lagoon extending some 3km into the Bay between the Rivers Tawe and Neath in order to harness tidal energy. This was to be achieved by controlling sea water going into and out of the lagoon during tidal cycles so as to power turbines which would produce up to 320MW of electricity.
The application was considered and examined by a panel of four inspectors of the Planning Inspectorate, on behalf of the Secretary of State, between June 2014 to March 2015. The panel, known as the examining authority, submitted a written report (the Report) to the Secretary of State in March 2015, recommending approval of the application.
The Report contained a draft order. That contained a definition of the word ‘commence’ and a requirement as to the commencement of the development, but it did not define the word ‘begin.’ There was no substantive discussion of these matters in the Report.
The recommendation of the Report was accepted, and the Order was made on 9 June 2015 to come into effect 21 days later on 30 June. Although probably nothing turns on this in the present case, it is not entirely clear why there was this gap, except that promotors of such orders usually desire a little leeway before the date when they can start the development, and hence acquire a little more time before the timescales for various requirements thereunder start running. The Order was the first of its type to grant consent for a tidal lagoon.
The relevant terms of the Order
The Order contains 54 Articles divided into 7 Parts. Part 1 is headed “Preliminary” and contains only 2 Articles, the first of which deals with citation and commencement of the Order and second deals with its interpretation. Article 2 (1) provides “In this Order-” and then a number of words or phrases are set out alphabetically and defined. The word ‘begin’ or ‘begun’ is not amongst them, but the word ‘commence’ is as follows:
““Commence” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised development other than operations consisting of site clearance, demolition work, investigations for the purpose of assessing ground conditions, the diversion and laying of services, the erection of any temporary means of enclosure and the temporary display of site notices or advertisements; and commencement” must be construed accordingly.”
Part 2 then sets out the “Principal powers” in six Articles. Article 3(1) of the Order provides:
“Subject to the provisions of this Order and to the Requirements in Part 3 of Schedule 1 the undertaker is granted development consent for the authorised development.”
There are 42 such Requirements. Requirement 3 sets out the duration of the permission in a familiar way:
“The authorised development must commence no later than the expiration of 5 years beginning with the date that this Order comes into effect.”
Many of the Requirements provide that the authorised development must not commence until plans have been submitted and approved in relation to specified matters, such as environmental management (5 and 6), landscape (7), drainage (11), archaeology (16), retention of historic assets (17), waste management (20), construction traffic (21), construction lighting (24), impacts on fish and shellfish (27), avian species (28) and habitats (29), and employment (41).
Requirement 12 materially provides:
“(1) Prior to the commencement of each phase of the authorised development a scheme to assess the nature and extent of any contamination on the Order land, and confirmation of whether or not it originates on the Order land must be submitted to and approved by the relevant planning authority in consultation with Natural Resources Wales…”
Article 7(1) provides that the development must not be commenced and the powers in Articles 24 to 37 must not be exercised until a security of £10.5 million has been provided in respect of compensation liabilities. These Articles set out compulsory purchase powers in respect of land within the area covered by the Order.
Article 7(4) requires the undertaker to provide evidence of construction and procurement contracts and financial provision to deliver the works and procurement under those contracts prior to commencement.
Part 4 deals with “Supplemental powers” in four Articles, the last of which authorises the undertaker to enter and survey and investigate land within the Order limits or that may be affected by the authorised compensation for any damage caused. Article 15 (1) reads as follows:
“(1) The undertaker may for the purposes of this Order enter on any land within the Order limits or that may be affected by the authorised development and— (a) survey or investigate the land; (b) without limiting sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples; (c) without limiting sub-paragraph (a), carry out ecological or archaeological investigations on the land; and (d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes.”
Part 6 deals with “Powers of acquisition” and is a large part containing some 13 Articles including Article 27(1) which states that after the end of the period of five years beginning on the day on which the Order comes into force no notice to treat can be served nor a general vesting declaration executed as follows:
“(1) After the end of the period of 5 years beginning on the day on which this Order comes into force—
(a) no notice to treat may be served under Part 1 of the 1965 Act; and
(b) no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981, as applied by article 29 (application of Compulsory Purchase (Vesting Declarations) Act 1981).”
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