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Consideration of “damage” and “environmental damage” within the Environmental Liability Directive 2004/35/EC

Seiont, Gwyrfai and Llyfni Anglers’ Society v Natural Resources Wales [2016] EWCA Civ 797

Related Member(s):
David Wolfe QC
Related Practice Area(s):
Environmental Law and Natural Resources, EU Law
Court:

The appellant anglers’ society sent a notification of “environmental damage” to the respondent, under the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, reg 29, due to concerns about the effect of poor water quality on the fish population in the Llyn Padarn natural lake. The respondent’s initial decision on this notification was successfully subjected to judicial review. However, the appellant initiated the present proceedings after the respondent had made a further decision, on the grounds that the respondent did not properly assess the true “environmental damage” which had been caused, for the purposes of the Environmental Liability Directive 2004/35/EC.

Hickinbottom J made an order dismissing the judicial review claim, finding that, contrary to what the society argued, ‘damage’ within the meaning of the Directive did not include prevention or deceleration of recovery from an existing, already-damaged environmental state.

The appellant challenged this decision.

The court found that Hickinbottom J had not erred in his interpretation of damage or environmental damage. It agreed that the obvious intent and effect of the Directive was to require an operator not to cause environmental conditions to fall below the baseline condition, which was the condition immediately prior to any event, act or omission that caused damage. An operator was not required to take steps to remedy pre-existing damages or to ensure an improvement from the baseline conditions where one was potentially possible; provided there was no further deterioration, an activity which slowed recovery was not causing ‘damage’.

The court also agreed with Hickinbottom J’s conclusion that the respondent was not required to consider damage that fell outside the scope of the appellant’s notification.

The court declined to make a reference to the CJEU under art 267 TFEU, finding that the interpretation of damage and environmental damage was sufficiently clear. There was no realistic prospect that the CJEU would adopt a different construction.

 David Wolfe QC was involved in this case.