Seiont, Gwyrfai and Llyfni Anglers' Society, R (on the application of) v Natural Resources Wales & Ors

Under the Environmental Liability Directive, “damage” means a measurable adverse change in a natural resource or a measurable impairment of a natural resource service involving a worsening or deterioration. It does not include merely preventing, limiting or slowing recovery from an already-damaged environmental state.

The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 establish parallel protection regimes for SSSIs and habitats or species protected by the Habitats and Wild Birds Directives. A notification does not require the enforcing authority to investigate damage of a novel kind outside the notification. The Regulations properly transpose the Directive’s provisions on preventative measures.

The claimant, an anglers’ society holding fishing rights in Llyn Padarn, challenged Natural Resources Wales’s decision of 12 December 2014 concerning alleged environmental damage caused by discharges from the Llanberis Sewage and Waste Water Treatment Works operated by Dŵr Cymru.

NRW found environmental damage only in respect of the 2009 algal bloom, which had caused the phytoplankton quality element to fall from good to moderate status. It found no other deterioration, no imminent threat of environmental damage, and no relevant post-April 2007 decline in the charr habitat or population.

The claimant argued that “damage” also included preventing or slowing recovery from a pre-existing degraded condition, and challenged NRW’s treatment of the Llyn Padarn SSSI, water damage and preventative measures.

1. Permission and substantive outcome. Permission to proceed was refused on Grounds 2, 4, 5 and 6. Permission was granted on Grounds 1 and 3, but the substantive claim on those grounds was refused. The challenge therefore failed.
2. Scope of the notification. The notification alleged deterioration caused by continuing sewage discharges. It did not raise decelerated recovery as a distinct form of damage. NRW was not legally required to investigate a novel and materially different kind of damage outside the notification.
3. SSSIs and protected habitats. The Welsh Ministers had not exercised the power in article 2(3)(c) of the Environmental Liability Directive to designate all Welsh SSSIs as habitats for purposes equivalent to those of the Habitats Directive. The 2009 Regulations created parallel regimes for SSSIs and habitats or species protected under the European directives. The lawfulness of any lesser protection for European habitats situated within SSSIs did not arise for decision.
4. Meaning of damage. In article 2(2), “adverse change” and “impairment” refer to conceptually similar effects. In context, both require worsening or deterioration. The concepts of “baseline condition”, “recovery” and restoration to baseline in article 2 and Annex II show that the Directive addresses deterioration caused by the relevant operator and restoration to the condition immediately before that deterioration. It does not make an operator responsible for accelerating recovery from earlier pollution or for achieving an optimal environmental condition.
5. Water damage and factual application. “Water damage” is a subset of “damage” and is subject to the same restriction. The reasoning in Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland (the Weser case) concerning deterioration under the Water Framework Directive did not extend the Environmental Liability Directive. In any event, the unchallenged evidence did not establish post-April 2007 deterioration caused by Dŵr Cymru’s discharges, apart from the 2009 bloom.
6. Preventative measures. Article 5(4) requires the competent authority to require the necessary preventative measures where the statutory conditions exist. It does not impose an independent obligation to require measures in every case, and regulation 13 properly transposes the Directive. Since NRW was entitled to find no continuing damage or imminent threat, the issue was also academic.