926: Swansea hasn’t started while other projects get extended

Today’s entry looks at late commencement of DCOs.

On 25 November 2021 the High Court issued a judgement on the Swansea Bay Tidal Lagoon project, which can be found here.

The developer was seeking a declaration that the project had commenced development and so hadn’t fallen foul of the obligation to do so within five years of the Development Consent Order being made, and could therefore continue to be built. It was not successful.

The DCO had a definition of ‘commence’, and Requirement 2 obliged the development to be commenced within five years of it coming into force. The developer did do some ‘material operations’ but did not fulfil that definition. There were also certain pre-commencement provisions that had to be carried out before the development could commence. Spoiler alert: note use of the past tense.

Section 154 of the Planning Act 2008 says that development must be begun before the end of the prescribed period (also five years, but from the date the order is made) or such other period specified in the order granting the consent, and if the development is not begun before the end of the period then the order granting development consent ceases to have effect.

The developer sought to distinguish ‘commenced’ from ‘begun’, which it said perform different functions. Since some material operations had been carried out, the project had been ‘begun’ and so satisfied section 154. The requirement about commencing within five years didn’t purport to change the deadline in section 154 and was concerned with the discharge of pre-commencement conditions. It actually corresponded to a date three weeks later, being the difference between the order being made and coming into force.

The developer was up against the Secretary of State for BEIS, the Welsh Ministers and Swansea Council, who all made submissions to the contrary, with slightly different angles.
The judge sided with the defendants although it seemed fairly close, and said (noting that the definition of ‘commence’ in the DCO says ‘begin to carry out…’) construing commence as the same as begin did no injustice to the language used and gave effect to its purpose.

Unfortunately that meant that the DCO could not be extended by a subsequent material or non-material change application, because by the wording of section 154, it now has ceased to have effect. Contrast that with the possibility of extending compulsory acquisition powers after they have expired, which I contend is possible (provided the DCO still has effect). Indeed, the Secretary of State has on several occasions extended the deadline for deciding a DCO after the previous deadline had expired, so if it is good enough for him or her…

Trivia note: the only DCO that anyone could find that extended the period by using the correct word ‘begun’ rather than ‘commenced’ is the Able Marine Energy Park DCO.

Meanwhile, a couple of DCOs have been extended, and doing so was considered only to need a non-material change application.

Some time ago, July last year in fact, the Progress Power DCO was amended by a non-material change  with a one-year extension, from August 2020 to August 2021. The Secretary of State explicitly concluded that the extension did not entail ‘materially new or materially different’ impacts. It certainly planned to commence about two weeks before the new deadline according to this press release,  I don’t know if it actually did.

More recently, the Glyn Rhonwy pumped storage project’s DCO has been extended by two years, from March 2022 to March 2024, and this was also a non-material change.  The Welsh Minister for Climate Change considered the four criteria in guidance (whether an updated ES would be required; whether a new HRA would be required; whether there was any new compulsory acquisition and whether there would be significant impacts on local people or businesses), and decided that they did not apply to such an extent as to make the change material.

The first application was made a bit less than three months before the DCO was due to expire, and was decided two months later; the second was made 11 months before the DCO was due to expire and was decided seven months later. By the same token as the judgment above, the amendment would have to be made before the DCO expired; I expect BEIS and the DfT would prefer the application to be made with a few months to spare.