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High Court considers Environmental Liability Directive for the first time

DATE: 18 Dec 2015

Natural Resources Wales (“NRW”), the single environmental body established in 2013 when the Environment Agency Wales was merged with the Countryside Council for Wales and the Welsh Forestry Commission, has successfully defended the first of its decisions to be subject to judicial review. The judgment in the case is significant because it is the first time that the High Court has considered in detail the Environmental Liabilty Directive (2004/35/EC) and its domestic transposition.

In R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2015] EWHC 3578 (Admin), a society of anglers had claimed that discharges from a sewage treatment works into Llyn Padarn - a lake in Snowdonia - were causing “environmental damage” both to the water quality of the lake and to a rare and genetically distinct population of the fish known as Arctic charr. In its decision responding to the notification, NRW concluded that, except for an algal bloom in 2009 which caused a drop in the ecological status of the water in Llyn Padarn, no environmental damage had occured or was imminent as a result of the discharges.

The claimant society submitted that NRW had erred in law in its approach to “environmental damage” because it had ‘limited’ its consideration to environmental deterioration. The claimant society contended, in an amendment to its original case, that NRW ought also to have considered whether the discharges were decelerating the recovery of fish numbers and of water quality to European standards.

Hickinbottom J accepted NRW’s case that the deceleration of recovery was not “environmental damage” for the purposes of the Directive and that, in any case, the claimant had failed to make good its contention that the sewage works were actually causing such deceleration.

The judge also rejected the claimant’s challenges to the transposition of the Directive in the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, which closely follow equivalent regulations made for England. It was also held that a body responding to a notification of environmental damage under regulation 29 of the Regulations is not required to consider or search around for damage other than that claimed in the notification.

Hickinbottom J refused the claimant permission to appeal.

The full judgment is available here. The BBC’s coverage of the case can be followed here.

David Forsdick QC and Gwion Lewis acted for Natural Resources Wales.