Scope of environmental damage under Environmental Liability Directive (High Court)

Practical Law UK Legal Update 6-621-4365 (Approx. 5 pages)

Scope of environmental damage under Environmental Liability Directive (High Court)

by Practical Law Environment

Background: Environmental Liability Directive 2004

The Environmental Liability Directive 2004 aims to prevent and remediate environmental damage (Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage).

Article 2 defines damage as "a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly".

Article 2 further defines "environmental damage" as consisting of damage to:

Protected species and natural habitats covered by the Habitats Directive 1992 (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) and the Birds Directive 2009 (Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds). For more information, see Practice note, Habitats and wildlife: EU and international regimes.
Water covered by the Water Framework Directive 2000 (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy). For more information, see Practice note, EU Water Framework Directive 2000: implementation in England and Wales.
Land, limited to cases where there is a significant risk of adverse effects to human health.

The competent authority must require an operator to take:

Preventative measures where there is an imminent threat of environmental damage occurring (Article 5).
Remedial measures, where environmental damage has occurred (Article 6).

The Environmental Liability Directive 2004 is implemented in Wales by the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (SI 2009/995) (Environmental Damage (Wales) Regulations 2009).

Under the Environmental Damage (Wales) Regulations 2009:

"Environmental damage" includes damage to a Site of Special Scientific Interest (SSSI) (regulation 4 and Schedule 1).
The competent authority for Wales is Natural Resources Wales (NRW) (formerly the Environmental Agency Wales) (regulation 10).
An interested party may notify NRW of any environmental damage that has been caused or where there is an imminent threat of environmental damage (regulation 29).

For more information, see Practice note, EU Environmental Liability Directive 2004: implementation in England and Wales.

Facts

The Seiont, Gwyrfai and Llyfni Anglers' Society (SGLA Society) is an unincorporated association that holds fishing rights at Llyn Padarn, a freshwater lake in Snowdonia. Llyn Padarn contains a population of genetically distinct Artic charr. The records of the SGLA Society show a significant reduction in the population of Arctic charr in Llyn Padarn since the 1990s.

Llyn Padarn is not a Special Area of Conservation, nor is the Arctic charr a protected species under the Habitats Directive 1992. However, Llyn Padarn is an SSSI.

In 2012, the SGLA Society issued a notification to NRW that environmental damage had been caused by discharges into Llyn Padarn from sewage treatment works. The notification acknowledged that some damage had already taken place before the Environmental Damage (Wales) Regulations 2009 came into force, and that damage had continued since then.

NRW decided, in December 2014, that no environmental damage to the SSSI or the Arctic charr had occurred or was imminent as a result of those discharges (except for an algal bloom in 2009, which had caused the ecological status of Llyn Padarn to decrease).

The SGLA Society applied for judicial review of NRW's decision. It initially relied on six grounds of claim, but later dropped three of these, so that the grounds of claim to be considered by the court related to:

Environmental damage to an SSSI. NRW had wrongly used a concept of "environmental damage" to the SSSI that was limited to a worsening of the environmental situation.
Environmental damage to water. NRW had wrongly used a concept of "environmental damage" to water, by limiting the concept to deterioration of a particular aspect ("relevant element") of Llyn Padarn.
Implementation of the Environmental Liability Directive 2004. The Environmental Damage (Wales) Regulations 2009 did not properly implement the Environmental Liability Directive 2004 because Article 5 of the Directive requires preventative measures to be taken in relation to environmental damage, but the Regulations only give NRW a power to require such measures.

The application for permission for judicial review and the substantive hearing were rolled up and heard at the same time.

Decision

On 17 December 2015, the High Court gave its decision in R (Seiont, Gwyrfai and Llyfni Anglers' Society) v Natural Resources Wales and others [2015] EWHC 3578 (Admin).

Before considering the three grounds of challenge, the court considered whether the concept of "environmental damage" under the Environmental Liability Directive 2004 goes beyond deterioration from an existing environmental condition to include "prevention or deceleration of recovery from an existing, already damaged environmental state".

The parties agreed that the grounds of challenge depended on this construction of "environmental damage".

The court decided that "environmental damage" under Article 2(2) of the Environmental Liability Directive 2004 is limited to a deterioration of the environmental situation. It does not include preventing or decelerating an already-damaged environmental state from achieving an acceptable environmental condition. Key points in the court's reasoning include:

Although the Environmental Damage (Wales) Regulations 2009 include provisions on SSSIs, this does not mean that all SSSIs in Wales should benefit from the same level of protection under the environmental liability regime as those habitats and species that are protected under the Environmental Liability Directive 2004 (that is, those protected under the Habitats Directive 1992 and the Birds Directive 2009). Instead, the Environmental Damage (Wales) Regulations 2009 provide for parallel provisions for SSSIs and protected habitats and species under the Habitats Directive 1992 and the Birds Directive 2009.
The Environmental Liability Directive 2004 and the Water Framework Directive 2000 have different core objectives. The objective of the former is to require an operator to pay for preventative or remedial measures in respect of environmental damage. The objective of the latter is to ensure that member states achieve good status for all EU surface waters. Although the two objectives overlap, the focus of the two Directives is different.
The important concept of "baseline condition" in the Environmental Liability Directive 2004 does not mean "good" condition. It can only mean the condition at the time of the relevant event or omission that caused the damage or imminent damage. The Environmental Liability Directive 2004 refers to "remedying of environmental damage" as being achieved through restoring the environment to its "baseline level". The court considered that this was not compatible with a concept of damage that includes a deceleration of progress to a better condition.
The phrases "adverse change" and "impairment" in Article 2(2) of the Environmental Liability Directive 2004 both refer to similar effects of worsening or deterioration. Although "impairment" might, in other contexts, include a deceleration of improvement, that is not the case in this context.

Following the court's determination of the meaning of "environmental damage", the first two grounds, which were based on the concept of environmental damage used by NRW, failed.

The court also considered the final ground (implementation of the Environmental Liability Directive 2004), even though this had become academic because the first two grounds had failed and there had been no environmental damage in the extended sense argued by the SGLA Society. The court confirmed that the Environmental Damage (Wales) Regulations 2009 properly implemented the Environmental Liability Directive 2004.

The court refused permission for judicial review in respect of the final ground. It granted permission for judicial review on the first two grounds (the interpretation of "environmental damage") but refused the substantive claim on those grounds.

Comment

The decision is important because it is the first time the High Court has considered the Environmental Liability Directive 2004 and its implementation in detail.

Case

R (Seiont, Gwyrfai and Llyfni Anglers' Society) v Natural Resources Wales and others [2015] EWHC 3578 (Admin) (17 December 2015) (Bailii).

End of Document

Resource ID 6-621-4365

Published on 30-Dec-2015

Resource Type Legal update: archive

Jurisdictions

UK
Wales