Seiont, Gwyrfai And Llyfni Anglers' Society v Natural Resources Wales

The Environmental Liability Directive treats “damage” as a measurable deterioration in the existing condition of a natural resource or natural resource service. “Environmental damage” does not include pollution which merely prevents, retards or slows recovery from historic damage, or prevents improvement beyond the baseline condition. The baseline condition is assessed at the time of the damaging event. References to the Water Framework Directive do not enlarge that concept. A competent authority’s power to require preventive measures is discretionary unless exercised. Its notification duty does not extend to a materially different form of damage that was not notified.

The appellant challenged Natural Resources Wales’s decision concerning alleged environmental damage to Llyn Padarn, a Site of Special Scientific Interest, said to result from discharges from a sewage and wastewater treatment works operated by Dwr Cymru.

The Administrative Court dismissed the judicial review claim: [2015] EWHC 3578 (Admin). The appeal concerned whether environmental damage included prevention or deceleration of recovery from an already damaged state, whether the domestic regulations applied the correct site-integrity and water-damage tests, and whether article 5 of the Environmental Liability Directive required NRW to impose preventive measures. The appellant also sought a reference to the Court of Justice.

1. Appeal dismissed. Lord Justice Lindblom gave the judgment, with Lady Justice King and Lord Justice Laws agreeing.
2. Under article 2(2) of the Environmental Liability Directive, “damage” means a measurable deterioration in the existing condition of the relevant natural resource or natural resource service. “Adverse change” and “impairment” signify a worsening from the baseline condition.
3. The baseline condition under article 2(14) is the condition that would have existed had the environmental damage not occurred, assessed at the time of the relevant damaging event, act or omission. The Directive requires an operator to prevent deterioration below that baseline and, if deterioration occurs, to restore the resource or service to baseline. It does not require remediation of pre-existing damage or acceleration of recovery beyond baseline.
4. The same conclusion applies to protected species, natural habitats and water damage. The Water Framework Directive’s objectives and article 4(7) derogations do not enlarge “damage” under the Environmental Liability Directive. Current consequences of historic pollution form part of the baseline.
5. NRW was not required under regulation 29 of the 2009 regulations to consider the novel and materially different theory that discharges had slowed environmental recovery. The SSSI site-integrity challenge and the further transposition complaints failed.
6. Article 5 placed the initial preventive duty on the operator. The competent authority’s power under article 5(3)(b) to require preventive measures was discretionary, and the duty under article 5(4) arose only if that power was exercised. Regulation 13 validly reflected that scheme.
7. The court was inclined to agree that the claim would have failed on the facts in any event, since there was no specific evidence that lower dissolved-oxygen levels had slowed the Arctic charr’s return to acceptable environmental status. That issue did not arise once the wider legal argument failed.
8. No reference was required under article 267 TFEU because the relevant interpretation was clear and beyond reasonable dispute. Permission for judicial review on ground 6 was rightly refused.

• Court of Appeal (Civil Division): appeal dismissed on all grounds.
• Administrative Court Planning Court in Wales: judicial review claim dismissed by Hickinbottom J.; [2015] EWHC 3578 (Admin).