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Articles Environmental Law 18th Jan 2016

First ever UK High Court case on Environmental Damage under the Environmental Liability Directive

The case of R (on the application of Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2015] EWHC 3578 (Admin), 17 December 2015 is an important first ever High Court case regarding the Environmental Liability Directive 2004 (ELD 2004) and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (2009 Welsh ED Regulations). This case has a more general application than to Wales only, as the 2009 Welsh ED Regulations are very similar to the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 currently in force in England.

The case was a judicial review challenge by Seiont, Gwyrfai and Llyfni Anglers’ Society (Claimant) to a decision by Natural Resources Wales (NRW) regarding whether there had been any “environmental damage” at Llyn Padarn, a lake designated as a SSSI in Snowdonia.

The ELD 2004 aims to prevent and remediate environmental damage. Environmental damage is defined in Article 2 ELD 2004 as a “measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly”. Environmental damage includes damage to the protected species and natural habitats covered by the EU Habitats and Birds Directives and water covered by the Water Framework Directive 2000. The 2009 Welsh ED Regulations implement the ELD 2004 and, as is the case with the

English equivalent, also protect Sites of Special Scientific Interest (SSSI) from environmental damage. SSSIs are nationally protected sites designated on the basis of their “notified features”.

One of Llyn Padarn SSSI’s “notified features” is its unique population of Arctic Charr, a population which has historically been in decline in the lake as a result of high phosphate levels in the water from sewage discharges.

The Llanberis Sewage and Waste Water Treatment Works (Llanberis STW), operating at Llyn Padarn, has taken many steps to

reduce phosphate levels and it was agreed that the situation had improved.

Nevertheless, on 7 February 2012, the Claimant sent a notification of environmental damage under Regulation 29 of the 2009 Welsh EDR Regulations to NRW in relation to the activities of Llanberis STW. This is a means by which an interested party can notify the appropriate enforcing authority of environmental damage which is being or has been caused or of which there is an imminent threat, which the enforcing authority must consider and take any appropriate action. The Claimant’s statement accompanying the notification stated that the phosphates in the sewage were causing damage to the water and to the Llyn Padarn SSSI and the Arctic Charr.

In its decision NRW concluded that, in respect of the relevant features of the SSSI, no environmental damage had occurred and none was imminent. These findings were based on the fact that there had been no evidence of a decline in the population of, or a demonstrable impact from the activity of, Arctic Charr in Llyn Padarn within the relevant time period. In respect of the water, NRW concluded that, although there had been one instance of environmental damage caused by Llanberis STW (relating to a change to the biological quality element of the water in 2009), there was no threat of imminent environmental damage occurring to the water due to mitigation measures which had been taken.

The challenge

In these proceedings, the Claimant argued that, in its decision, NRW had incorrectly restricted the term “environmental damage” to a deterioration of the situation from an existing state and that NRW should have considered whether the continuing discharges from LLanberis STW prevented or decelerated the recovery of Llyn Padarn from its existing already-damaged environmental state. The Claimant said that the continuing sewage discharges decelerated improvement in the dissolved oxygen levels of the water, which in turn slowed down the progress of the water to “good” environmental status and slowed down the progress of the SSSI, as a natural habitat, from attaining Favourable Conservation Status (FCS) (by hampering the FCS of the Arctic Charr).

This challenge rested on the Claimant’s argument that that the environmental damage test applying to protected species and natural habitats (ie the “significant effect on FCS” test, as focussed on in the ELD 2004 and the domestic ED Regulations) should apply equally to SSSI habitats and species. The Claimant argued that SSSI habitats and species were “natural resources” under Regulation 2(1) (in this case the water in the lake, the SSSI as a whole and the Arctic Charr as a SSSI notified species) and that, accordingly, the domestic “SSSI site integrity test” for SSSI environmental damage should have been ignored.

Key findings of the judgment

  • That “damage” under Article 2(2) of the ELD 2004 and “environmental damage” under Article 2(1) of the ELDis 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. This would be inconsistent with the “polluter-pays” principle underpinning the ELD 2004. Any environmental damage in this case would have been a decline in the population of Arctic Charr or a drop in the status of the surface water, but both of which were found not to have occurred.
  • That the protection afforded by the 2009 Welsh ED Regulations to SSSIs is a separate and parallel regime to the protection afforded by the ELD 2004 and the Regulations to EU protected species and natural habitats. It is not the case that the domestic SSSI regime was brought into being in pursuance of Article 2(3) of the ELD 2004 and that the Welsh Ministers had exercised a power to determine that all SSSIs in Wales be designated as habitats for equivalent purposes as under the Habitats Directive (as the Claimant had argued). Instead the SSSI regime was brought in under a more general power under section 2(2) of the European Communities Act 1972. Therefore it was not correct to argue that the environmental damage test on “significant effect on FCS test” should equally apply to the SSSI habitats and species as it does to which applies to EU protected species and natural habitats. It was concluded that the “SSSI site integrity test” set out in the 2009 Welsh ED Regulations for SSSI damage (in so far as itrelates to domestic conservation interest features only) was acceptable.
  • The court, however, deliberately left open whether it was legally acceptable for the “SSSI site integrity test” to apply also to EU protected species and natural habitatswithin the SSSI (para 127(ii) of the judgment). The judgment recorded that there were arguments both for and against this and that this should be left to a further case. It follows that a person arguing that there is a SSSI site integrity effect on the basis of an EU protected species or natural habitat within the SSSI may be presented with challenges.
  • That the way that Regulation 13 of the 2009 Welsh EDR 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 torequire preventative measures (as the Claimant had argued). A mere power to do so, as Regulation 13 provides, was held to be adequate.

The judgment also raised practical issues relevant to those seeking to make a notification of environmental damage. Firstly, a notification must set out exactly what mechanism of environmental damage is being relied upon. In this case, the judge held that NRW was not under an obligation to consider damage that “not only fell outside the scope of the notification, but was of a novel and entirely different type from that notified” (para 102 of judgment). An objector would therefore need to present its concerns as widely as possible. Secondly, NRW had conceded in 2014, under pressure from the Claimant, that it should have considered the possibility of environmental damage from 2007 when the ELD required implementation rather than merely from 2009 when the UK finally implemented (late) the ELD 2004 (Case No C-417/08). As a result, it would be open to an objector to require this of a competent authority in the future.

To summarise…

This first UK High Court case on the ELD 2004 has clarified some key definitional areas of the regime, in particular the restriction of environmental damage to a deterioration or worsening of the existing state, and has dealt with some important practical points on the notification process. However it will be interesting to see, as future cases come forward in Wales or in England, how the courts deal with the test for environmental damage to EU protected species or natural habitats which are within a SSSI.

We will also be keeping a close eye in the coming weeks on whether this present case is appealed by the Claimant.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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