The company behind plans for a £1.3bn tidal lagoon off the coast of Swansea has failed in a legal bid to undo the expiring of the project’s development consent order (CDO) last year.
Tidal Lagoon (Swansea Bay) Plc brought a High Court legal case arguing that it had fulfilled the conditions of the CDO for the planned £1.3bn project by starting work within five years of its granting.
This was disputed by the defendants in the UK and Welsh governments and Swansea Council.
Part of the hearing was about the difference, or otherwise, between the words “begin” and “commence”.
Consent for the lagoon through a CDO, for infrastructure schemes categorised as being of national significance, was first awarded in June 2015 by the UK Government, with a five year window to comply with its conditions and start construction work.
With the clock ticking prior to the expiry date in June, 2020, Tidal Lagoon requested a one year extension, which was rejected the UK Government.
Tidal Lagoon then pressed on with some demolition and site-clearing works at Swansea docks which it claimed showed that development had begun within the five year deadline. The council and two governments said it hadn’t.
As the local planning authority Swansea Council determined whether Tidal Power had discharged the conditions of the CDO, concluding last year that work carried out by the company was ‘unlawful.”
A High Court judge has now concluded that Tidal Lagoon had not begun the development, and that this in turn removed the rationale for another declaration it was seeking.
Part of the hearing was about the difference, or otherwise, between the words “begin” and “commence”.
The ruling by Judge Harman QC said Tidal Lagoon's interpretation was “unsatisfactory” and not one which the 2015 consent order had intended.
Ironically, one time champions of the lagoon project in Swansea Council and the Welsh Government, had legal representation in the case alongside the UK Government. Under the Wales Act, the Welsh Government now has responsibility for energy projects up to 350 megawatts, having previously been just 50 megawatts.
The previous Welsh Government administration had indicated a willingness to provide £200m of financial support for the project.
That didn’t materialise, but it did provide Tidal Lagoon with a £1.2m loan. A previous loan was repaid. On the status of the £1.2m loan all the Welsh Government would say was: “We cannot comment on commercially confidential agreements with companies.”
The decision of the UK Government not to award a green subsidy for energy produced from the lagoon, a so called contract for difference, effectively sealed the commercial fate of the project back in 2018.
In a response to the ruling, Tidal Lagoon Plc said: “We are currently reviewing our options with our legal team.”
New and separate proposals for a Swansea Bay tidal lagoon – including housing, battery manufacturing and storage, a solar farm and data centre – have been developed.
Details of the planned project, known as Blue Eden, were unveiled in October.
It is being led by Bridgend-based firm DST Innovations and does not involve Tidal Lagoon.
Blue Eden is expected to take 12 years to deliver in full, create 2,500 permanent jobs, but it will require a DCO among other permissions.
The electricity generated by the lagoon and solar farm would be used on site, but there would be scope for some of it to be exported onto the grid.
