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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tidal Lagoon (Swansea Bay) Plc v Secretary of State for Business, Energy and Industrial Strategy & Ors [2022] EWCA Civ 1579 (01 December 2022) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2022/1579.html Cite as: [2022] WLR(D) 484, [2022] EWCA Civ 1579, [2023] PTSR 492 |
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Claim No: CO/1638/2021 |
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HH Judge Jarman KC sitting as a judge of the High Court
Caravella House, Quay Parade, Swansea SA1 1SP |
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B e f o r e :
SIR KEITH LINDBLOM, SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE STUART-SMITH
____________________
TIDAL LAGOON (SWANSEA BAY) PLC |
Claimant/Appellant |
|
- and - |
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(1) SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY (2) WELSH MINISTERS (3) THE COUNCIL OF THE CITY AND COUNTY OF SWANSEA |
Defendants/Respondents |
____________________
Mark Westmoreland Smith and Charles Streeten (instructed by the Government Legal Department) for the 1st defendant/ 1st respondent
Emyr Jones (instructed by Geldards LLP) for the 2nd defendant/ 2nd respondent
Douglas Edwards KC (instructed by the Chief Legal Officer) for the 3rd defendant/ 3rd respondent
Hearing date: 26 October 2022
____________________
Crown Copyright ©
Sir Geoffrey Vos MR, Sir Keith Lindblom SPT and Lord Justice Stuart-Smith:
Introduction
i) The second of 42 requirements under the heading "Time limits, etc.", which provided that "[t]he authorised development must commence no later than the expiration of 5 years beginning with the date that [the DCO] comes into effect" (Requirement 2); and
ii) Article 2(1), which included a definition of the word "commence" providing that in the DCO it meant "begin to carry out any material operation (as defined in section 56(4) of the [Town and Country Planning Act 1990 (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".
Essential factual background
The 2008 Act
(1) An order granting development consent may impose requirements in connection with the development for which consent is granted.
(2) The requirements may in particular include
(a) requirements corresponding to conditions which could have been imposed on the grant of any permission, consent or authorisation, or the giving of any notice …
(b) requirements to obtain the approval of the Secretary of State or any other person, so far as not within paragraph (a).
(3) An order granting development consent may make provision relating to, or to matters ancillary to, the development for which consent is granted.
…
(5) An order granting development consent may –
(a) apply, modify or exclude a statutory provision which relates to any matter for which provision may be made in the order …
(6) In subsection (5) "statutory provision" means a provision of an Act or of an instrument made under an Act.
(1) Development for which development consent is granted must be begun before the end of –
(a) the prescribed period, or
(b) such other period (whether longer or shorter than that prescribed) as is specified in the order granting the consent.
(2) If the development is not begun before the end of the period applicable under subsection (1), the order granting development consent ceases to have effect at the end of that period.
(3) Where an order granting development consent authorises the compulsory acquisition of land, steps of a prescribed description must be taken before the end of –
(a) the prescribed period or
(b) such other period (whether longer or shorter than that prescribed) as is specified in the order.
(4) If the steps of the prescribed description are not taken before the end of the period applicable under subsection (3), the authority to compulsorily acquire the land under the order ceases to have effect.
(1) Development for which development consent is granted must be begun before the end of a period of five years beginning on the date on which the order granting development consent is made.
(2) Where an order granting development consent authorises the compulsory acquisition of land, and a notice to treat is served under section 5 of the Compulsory Purchase Act 1965 … that notice must be served before the end of a period of five years beginning on the date on which the order granting development consent is made.
(1) For the purposes of this Act … development is taken to begin on the earliest date on which any material operation comprised in, or carried out for the purposes of, the development begins to be carried out.
(2) "Material operation" means any operation except an operation of a prescribed description.
The DCO
(a) any work of construction in the course of the erection of a building; (aa) any work of demolition of a building; (b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building; (c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b); (d) any operation in the course of laying out or constructing a road or part of a road; (e) any change in the use of any land which constitutes material development.
(1) After the end of the period of 5 years beginning on the day on which [the DCO] 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 …
Discussion
Conclusions