In January 2016, we brought you the news of the first ever UK High Court case on “environmental damage” under the Environmental Liability Directive. Since then, the claimant, Seiont, Gwyrfai and Llyfni Anglers' Society, has challenged the decision in the Court of Appeal. We discuss here the results of the appeal.
The Environmental Liability Directive 2004 (“ELD 2004”) aims to prevent and remediate “environmental damage”. This includes damage to: (i) water covered by the Water Framework Directive 2000; and (ii) habitats and species protected by EU legislation. The ELD 2004 is implemented in Wales by the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (“2009 Welsh ED Regulations”). The 2009 Welsh ED Regulations extend the scope of “environmental damage” to include damage to nationally protected areas, such as Sites of Special Scientific Interest (“SSSIs”). As explained in our January update, this case has a more general application than to Wales only, as the 2009 Welsh ED Regulations are very similar to the equivalent legislation currently in force in England.
In summary, in the High Court case, the Seiont, Gwyrfai and Llyfni Anglers' Society (“Claimant”) disagreed with Natural Resources Wales’ (“NRW”) finding in December 2014 that there had been no environmental damage in respect of Llyn Padarn, a lake designated as a SSSI in Snowdonia. In particular, the Claimant thought that the discharge of sewage containing phosphates by the Llanberis Sewage and Waste Water Treatment Works (“Llanberis STW”), operating at Llyn Padarn, was damaging the SSSI by hampering the recovery of a unique population of fish (the Arctic Charr) in the lake and damaging the water quality of the lake.
The Claimant argued that the term “environmental damage” should not be restricted to a deterioration of the situation from an existing state, but that consideration should also be given to whether a particular action was preventing the recovery of a natural resource or resource service. In this case, it argued that the continuing sewage discharges by Llanberis STW were slowing (i) the progress of the water to attaining “good” environmental status; and (ii) the recovery of the Arctic Charr and thus the SSSI to “Favourable Conservation Status” (“FCS”).
The Claimant also argued that the 2009 Welsh ED Regulations were deficient as they should create a duty on the competent authority to require preventative measures.
However, as we reported to you in January, the High Court agreed with NRW, finding in December 2015 that:
- “Damage” under the ELD 2004 was limited to deterioration/worsening of the environmental situation and that environmental damage does not include preventing or decelerating an already damaged environmental state from achieving an acceptable environmental condition.
- The way that Regulation 13 of the 2009 Welsh ED Regulations implemented the “prevention of environmental damage provisions” under Article 5 of the ELD 2004 was lawful. It was not necessary that there had to be a duty on the competent authority to require preventative measures (as the Claimant had argued). A mere power to do so, as Regulation 13 provides, was held to be adequate.
On appeal, the Claimant argued that:
- NRW was wrong to restrict the meaning of "environmental damage" under the Environmental Liability Directive 2004 to a worsening of the environmental situation.
- NRW was wrong in its approach to "environmental damage" at a lake such as Lly Padarn, by restricting the meaning to deterioration of a relevant element.
- The 2009 Welsh ED Regulations did not properly transpose the Environmental Liability Directive 2004, because Article 5 requires "preventative measures" to be taken in respect of "environmental damage" but the Environmental Damage (Wales) Regulations 2009 only provide a power to require such measures.
In March 2016, the High Court granted permission to appeal on the grounds listed at 1 and 2 above, but refused permission to appeal on the ground listed at 3 above, because it had originally refused permission to apply for judicial review on that ground.
The Court of Appeal dismissed the Claimant’s appeal, on the following grounds:
- “Damage” means a measurable deterioration in the existing state of the natural resource or natural resource service in question.This means there must be a measureable “adverse change” or “impairment” from the conditions that would have existed had the environmental damage not occurred.
- Importantly, the condition is fixed at the moment the damage occurs, regardless of the condition of the resource or resource service at the time the damage occurred. This is apparent from the wording in Annex I to the ELD 2004, which says that the assessment of significance of damage should be made "by reference to the conservation status at the time of the damage".
- The “adverse change” or “impairment” must be a significant worsening of an existing condition, which it is the responsibility of the operator to prevent or remedy.
- While an operator must not allow the resource or resource service to fall below the baseline condition, it is not required to remedy pre-existing damage.
The court refused to refer the case to the Court of Justice of the European Union.