Environment – Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 – Appellant notifying respondent of environmental damage caused to lake by discharge of waste by sewage treatment works – Respondent issuing determination accordingly – Whether respondent incorrectly interpreting “environmental damage” – Whether damage including deceleration of improvement in environmental state – Appeal dismissed
The appellant, anglers’ society, was an unincorporated association which held fishing rights over Llyn Padarn, a freshwater lake in Snowdonia, Wales, which was designated as a site of special scientific interest (SSSI) and held a genetically distinct population of Arctic charr. In 2012, the appellant sent a notification to the respondent, under regulation 29 of the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, informing it that environmental damage had been caused to the lake by discharges from a sewage and waste water treatment works operated by the first interested party.
The respondent determined that no “environmental damage” had occurred to relevant species, including Arctic charr, since the coming into effect of the 2009 Regulations in May 2009, and that the only damage had been to the “biological quality elements” of the lake because of an algal bloom in 2009 which had resulted in a drop in the quality of phytoplankton in the water. They issued a liability notice, under regulation 20, requiring the first interested party to submit proposals for remedial measures.
The respondent’s decision was subsequently quashed by consent on the ground that the respondent should have considered environmental damage occurring since April 2007. In response to a further notification from the appellant, the respondent issued a further decision in which it again found no damage to relevant species and concluded that there was no threat of imminent environmental damage because mitigation measures had been taken which had resulted in the phytoplankton quality returning to “good” status.
In judicial review proceedings, the appellant contended that the respondent had misinterpreted the concept of “environmental damage” in article 2(1) of Directive 2004/35/EC (the Environmental Liability Directive), by regarding the directive as imposing liability only for pollution that worsened the existing environmental situation, rather than including pollution, such as continuing emissions, that had the effect of retarding or preventing the natural recovery of the environment from damage previously inflicted on it. The claim was dismissed in the court below: see [2015] EWHC 3578 (Admin); [2016] PLSCS 7. The appellant appealed.
Held: The appeal was dismissed.
(1) The concept of “damage” in article 2(2) of the Environmental Liability Directive, properly understood in its context, meant a measurable deterioration in the existing state of the “natural resource” or “natural resource service” in question. The concepts of “measurable adverse change” to or “measurable impairment” set out in article 2(2) were analogous and referred to effects in the nature of a worsening or deterioration. The word “impairment” was apt to describe damage to the functioning of a natural resource service in the sense only of a deterioration or worsening of that service attributable to the particular act or omission of an operator. Both concepts signified the worsening of an existing condition, which it was the responsibility of the “operator” to prevent or remedy. The concept of “environmental damage” in article 2(1) imported and depended on that concept of “damage”. The provisions of the 2009 Regulations accurately transposed the Environmental Liability Directive into domestic law with regard to the definition of “environmental damage”.
(2) To accept the appellant’s interpretation of article 2(1) would run contrary to the purpose of the Environmental Liability Directive and the whole scheme of its provisions for the prevention and remediation of “environmental damage”, which embodied the “polluter pays” principle. The obvious intent and effect of those provisions was to require an operator not to cause the condition of the environment to fall below the condition in which it would have been at the time of, and but for, his action or failure to act, namely its “baseline condition”. They did not require the operator to go further, by taking steps to remedy pre-existent damage to the environment or by ensuring or securing the improvement of such natural resources or natural resource services from their baseline condition. They did not bite on acts or omissions of an operator the effect of which was merely to cause the environment not to improve or improve as fast as it otherwise would, or to slow its “potential” improvement.
In that regard, the “baseline condition” as defined in article 2(14), referred without qualification to the “condition” of the natural resource or natural resource service “that would have existed had the environmental damage not occurred”. The baseline condition was the current condition at the time of the relevant “event, act or omission” that caused the damage. The baseline was not set at some arbitrary date in the past or future; nor did it extend to some arbitrary span of time. It was deliberately fixed at the moment when the “damage” occurred, no matter what the condition of the natural resource might be at that moment.
(3) The references that article 2(1)(b) made to article 4(7) of the Water Framework Directive did not have the effect of modifying the concept of “water damage” for the purposes of the Environmental Liability Directive. The objectives stated in the Water Framework Directive did not enlarge the meaning of “damage” beyond its definition in article 2(2) of the Environmental Liability Directive, nor did they extend the concept of “water damage” in article 2(1)(b) beyond a measurable deterioration from the baseline condition.
(4) Moreover, as a matter of law, the respondent was not obliged to consider damage that fell outside the scope of the notification and was of a novel and entirely different type from that notified to it. The appellant’s notification did not, in fact, require the respondent to consider environmental damage in the sense of a deceleration of improvement to the environmental situation.
(5) Further, the respondent had not erred by reason of any failure to require the first interested party to take preventive measures restraining its discharges into the lake. The requirement in article 5(1) of the Environmental Liability Directive that the operator was to “take the necessary preventive measures”, which was mirrored in regulation 13(1)(a) of the 2009 Regulations, applied only where the competent authority, in the exercise of its discretionary power under article 5(3), notified “necessary preventive measures” required to be taken by the operator under article 5(4). To construe article 5 as requiring preventative measures in every case would make the power in article 5(3) otiose.
David Wolfe QC (instructed by Fish Legal, of Leominster appeared for the appellant; David Forsdick QC and Gwion Lewis (instructed by Bircham Dyson Bell LLP) appeared for the respondent; Richard Kimblin QC and Nina Pindham (instructed by Aaron & Partners LLP, of Chester) appeared for the first interested party, Dwr Cymru Cyfyngedig (t/a Dwr Cymru/Welsh Water); the second interested party, First Hydro Co Ltd, did not appear and was not represented; Richard Gordon QC and Tom Cross (instructed by the legal services department of the Welsh Government) appeared for the third interested party.
Sally Dobson, barrister