Case Law Update: Appeal of "Environmental Damage" case

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

Background
“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.

Appeal 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.

Decision"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 measurable "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.