What does 'environmental damage' mean?

For the first time, the High Court has considered in detail the scope of the concept of "environmental damage" under the Environmental Liability Directive and its associated regulations. Emma Duffy and Rebecca Roffe report on the outcome.

In R (Seiont, Gwyrfai and Llyfni Anglers' Society) v Natural Resources Wales and others [2015] the High Court considered in detail the scope of the concept of "environmental damage" under the Environmental Liability Directive 2004 (the Directive) and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (the Regulations).

The court concluded that "environmental damage" was limited to a deterioration of the environmental condition. It does not include the prevention or slowing of an already damaged environmental state from achieving an acceptable level in environmental terms.

Background

The general principles of the Directive are the prevention and remedying of environmental damage. The Directive defines "environmental damage", under three limbs, as damage to:

• protected species and natural habitats;
• water; and
• land (where there is a significant risk of adverse effects on human health).

The Directive is implemented in Wales by the Regulations, which state that "environmental damage" includes damage to protected species or natural habitats or a site of special scientific interest (SSSI).

Operators will be required to take immediate preventative action if there is an imminent threat of "environmental damage" or carry out remediation if "environmental damage" has already occurred. In certain cases, liability is strict and not based on fault or culpability.

Facts

The Seiont, Gwyrfai and Llyfni Anglers' Society (the Society) is an unincorporated association that holds fishing rights at Llyn Padarn, a freshwater lake in Snowdonia, which is an SSSI. Llyn Padarn is home to a unique population of cold-water fish, namely the Arctic charr, and records provided by the Society identified a dramatic decline in the charr's population.

In 2012, the Society notified Natural Resources Wales that environmental damage had been caused by discharges from sewage treatment works. However, Natural Resources Wales concluded that no environmental damage had occurred to the SSSI or Arctic charr or was imminent as a result of those discharges, except for a bloom of algae in 2009 which resulted in the decrease of the ecological status of the lake itself.

The Society applied for judicial review of Natural Resources Wales' decision on the following grounds:

• environmental damage had occurred to a natural habitat, on the basis that Natural Resources Wales had inaccurately limited "environmental damage" to the SSSI to a worsening of the environmental situation;
• environmental damage to water had occurred as Natural Resources Wales incorrectly limited "environmental damage" to water to deterioration of a relevant element; and
• the Regulations failed to properly implement the Directive because Article 5 requires preventative measures to be taken in relation to "environmental damage" but the Regulations only provide Natural Resources Wales with a power to require such measures rather than being required automatically. 

Decision

The conclusion reached by the court regarding the scope of "environmental damage" was based on the following key rationale:   

• The key concept of "baseline condition" (i.e. the "condition" on which the damage has an impact) in the Directive does not mean a "good" condition; it refers only to the environmental condition that existed immediately prior to the relevant event, act or omission that caused the damage. The court considered that this concept could not be extended to conclude that damage includes the deceleration of progress to an enhanced condition (i.e. preventing or slowing improvement).

It was the court's view that the terms "adverse change" and "impairment" to the relevant condition, as set out in Article 2(2) of the Directive, refer to similar effects, which relate to a worsening or deterioration.

Therefore, although permission to proceed was granted with respect to the first two grounds the claim failed, as it was refused on its substantive grounds. The court also confirmed that the Regulations did properly implement the Directive. Permission for judicial review in respect of the final ground was therefore refused by the court.

Comment

Although this case concerns the Welsh Regulations, it is of more global importance, as it clearly indicates that the High Court considers that "environmental damage" should be interpreted as a worsening of condition, which limits the potential for enforcement action under the Regulations to occur where the condition of a protected site or species does not improve or any previous improvements slow down or cease. This is particularly relevant where potentially polluting or industrial operations are taking place on or near protected sites and it helpfully clarifies what sort of damage is to be regulated by the legislation.

However, at the time of writing, an application for permission to appeal has been made although the details are not yet available.

Emma Duffy is an Associate and Rebecca Roffe is a Senior Associate at Nabarro. Emma can be contacted on 0114 279 4179 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Rebecca can be reached on 0114 279 4040 or This email address is being protected from spambots. You need JavaScript enabled to view it..