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The Water Framework Directive and a potential lacuna in national law

 

A recent decision of the CJEU has raised doubts as to the adequacy of the transposition of the Water Framework Directive in national law, and indicates that planning authorities may have to grapple with the Directive in deciding whether to grant planning consent for certain developments.

On 1 July 2015, the Grand Chamber of the CJEU gave a preliminary ruling in Case C‑461/13 Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland. The case concerned three projects to deepen the River Weser to improve its navigability and related to the application of the Water Framework Directive 2000/60/EC (“WFD”) to the decision to grant development consent. An NGO challenged the planning approvals on the basis of, amongst other things, an alleged breach of the WFD.

The primary means of implementing the WFD is through the establishment of a system of river basin management plans. However, article 4(1)(a)(i) imposes a duty on Member States to “implement the necessary measures to prevent deterioration of the status of all bodies of surface water”. The issue which arose in this case was how these duties affected the decision to grant planning approval for the works.

Four questions were referred by the Federal Administrative Court:

“1.     Is Article 4(1)(a)(i) of Directive 2000/60 … to be interpreted as meaning that the Member States must — unless a derogation is granted — refuse to authorise a project if it may cause a deterioration in the status of a body of surface water, or is that provision merely a statement of an objective for management planning?

2.     Is the term “deterioration of the status” in Article 4(1)(a)(i) of Directive 2000/60 to be interpreted as covering only detrimental changes which lead to classification in a lower class in accordance with Annex V to the directive?

3.       If the second question is to be answered in the negative: under what circumstances does “deterioration of the status” within the meaning of Article 4(1)(a)(i) of Directive 2000/60 arise?

4.     Are the provisions of Article 4(1)(a)(ii) and (iii) of Directive 2000/60 to be interpreted as meaning that the Member States must — unless a derogation is granted — refuse to authorise a project if it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive, or are those provisions merely a statement of an objective for management planning?”

The Grand Chamber held that the decision to grant development consent was covered by the obligation to prevent deterioration of status of bodies of water, albeit that projects could be authorised through the system of derogations provided for in Article 4. Thus:

“[50] ... unless a derogation is granted, any deterioration of the status of a body of water must be prevented, irrespective of the longer term planning provided for by management plans and programmes of measures. The obligation to prevent deterioration of the status of bodies of surface water remains binding at each stage of implementation of Directive 2000/60 and is applicable to every surface water body type and status for which a management plan has or should have been adopted. The Member State concerned is consequently required to refuse authorisation for a project where it is such as to result in deterioration of the status of the body of water concerned or to jeopardise the attainment of good surface water status, unless the view is taken that the project is covered by a derogation under Article 4(7) of the directive.

[51]     In the light of all the foregoing considerations, the answer to the first and fourth questions is that Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that the Member States are required — unless a derogation is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive.”

This finding is of potential importance in national law, since the WFD is transposed in England and Wales through the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003/3242 which impose duties on the Secretary of State, the Welsh Ministers, the Environment Agency and Natural Resources for Wales, primarily in respect of river basin management plans.

The Grand Chamber’s decision indicates that there is a wider duty on development consent decision makers (e.g. local planning authorities) to refuse planning consent unless a derogation is made out. It appears that there has accordingly been a failure to completely transpose the WFD into national law, and therefore that article 4 should be treated as having direct effect. There is nothing in the judgment to indicate that the reasoning is limited to works directly concerned with river management as opposed to wider development projects which affect water bodies.

Derogations are provided for in article 4(7) of the WFD, which provides:

                “Member States will not be in breach of this Directive when:

–       failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or

–       failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities

and all the following conditions are met:

(a)     all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b)     the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years;

(c)     the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and

(d)     the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.”

In light of the Grand Chamber’s judgment, it appears that in relevant cases it will be for the development consent decision-maker to assess whether a derogation has been made out.

As to the second and third questions, the Grand Chamber found:

“[70] ... the concept of ‘deterioration of the status’ of a body of surface water in Article 4(1)(a)(i) of Directive 2000/60 must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of Article 4(1)(a)(i).”

This relatively strict interpretation of “deterioration” may increase the number of projects where WFD compliance is in issue.