Simon Trahair-Davies, partner at
Shortly before Christmas, 2015, a decision of some significance was handed down by the High Court, being the first time that court has considered the Environmental Liability Directive 2004 and its implementation in detail.
The case concerned Llyn Padarn lake in Snowdonia in North Wales where an angling society (the Seiont, Gwyrfrai and Lyyfni Anglers’ Society/SGLA Society), had issued a notice to the Welsh environment agency (Natural Resources Wales/NRW), that the population of Arctic charr fish had declined, which they blamed on discharges from a nearby water treatment works. Their notification acknowledged that some damage had already taken place before the current (2009) Regulations in Wales came into force.
Arctic charr, closely related to both salmon and lake trout, is one of the rarest fish species in Britain, found mainly in deep, cold, glacial lakes. It is much more common in Scandinavia, where it is fished extensively.
The angling society had brought its case to NRW in 2012, but in December 2014 NRW ruled that no environmental damage to the lake or the Arctic charr had occurred or was imminent as a result of the water works discharges (except for an algal bloom in 2009, which had caused the ecological status of Llyn Padarn to decrease).
The SGLA Society then applied for judicial review of NRW’s decision. The High Court delivered its verdict on 17 December, 2015.
Unfortunately for the angling society, the decision was to be no early Christmas present.
The judge, Mr Justice Hinckinbottom, said: “There is no evidence of a decline in the charr population in Llyn Padarn since 2007 and there is evidence the population of adult charr are now at a level higher than 2005 and increasing, which is suggestive that the water is not hostile to charr.”
This would seem straightforward. But, looking under the surface (as it were!), there were some very interesting factors behind the decision which will be of relevance to many different operators, including aggregates and mining companies.
Background to the Directive
Firstly, it’s worth reminding ourselves what the Environmental Liability Directive 2004 was established to do.
It was instituted to have regard to “the prevention and remedying of environmental damage,” with damage being defined as “a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.”
Article 2 of the Directive further defines “environmental damage” as consisting of damage to protected species and natural habitats covered by the Habitats Directive 1992 and the Birds Directive 2009, as well as water covered by the Water Framework Directive 2000.
The competent authority must require an operator to take preventative measures where there is an imminent threat of environmental damage occurring and remedial measures where environmental damage has occurred.
While Llyn Padarn is not a Special Area of Conservation and the Arctic charr is not a protected species under the Habitats Directive, the lake is a Site of Special Scientific Interest (SSSI). And under the Environmental Damage (Wales) Regulations 2009 – the implementation in Wales of the Environmental Liability Directive – environmental damage does include damage to an SSSI.
The decision
The SGLA Society applied for judicial review of NRW’s decision, with its main ground of appeal being that NRW had wrongly used a concept of environmental damage that was limited to a worsening of the environmental situation (rather than preventing or decelerating its recovery from an existing already damaged state).
In considering whether environmental damage under the Directive goes beyond deterioration from an existing environmental condition to include “prevention or deceleration of recovery from an existing, already damaged environmental state,” the court referred to the important concept of “baseline condition” in the Directive. Crucially, this is not the same as “good” condition. It can only mean the condition at the time of the relevant event or omission that caused the damage or imminent damage.
The “remedying of environmental damage” in the Directive is achieved through restoring the environment to its baseline level. The court considered that this was not compatible with a concept of damage that includes a deceleration of progress to a better condition.
In summary, the court decided that environmental damage is limited to a deterioration of the environmental situation. It does not include preventing an already-damaged environmental state from achieving an acceptable condition, or decelerating that process.
For their part, the owner of the water treatment works, Welsh Water, said that it had invested £3.6 million (€4.7 million) at the works since 2010 to meet tighter standards set by NRW, which had helped make it Wales’ first designated freshwater bathing lake.
The anglers have been left disappointed. The case highlights that, whilst environmental regulations set a very high bar for operators to meet, cases brought against them will hinge on very precise interpretations of the law.
Simon Trahair-Davies is a partner in the mining and minerals team at Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers.
Simon can be contacted on +44 (0)1872 265100 or email <%$Linker:
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