In R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2016] EWCA Civ 797 the Court of Appeal had to consider whether, for the purposes of the Environmental Liability Directive (the “Directive”), “environmental damage” includes the prevention or deceleration of recovery from an existing, already-damaged environmental state; or whether it is restricted to a deterioration from an existing state.
The anglers’ society sent a notification to Natural Resources Wales (“NRW”) alleging that environmental damage had been caused to Llyn Padarn by discharges of sewage. NRW concluded that there had been no damage to any relevant species or features of the lake. The anglers’ society issued a claim for judicial review of NRW’s decision on the basis NRW had erred by restricting the meaning of “environmental damage” to a worsening of the environmental situation and a deterioration of Llyn Padarn’s surface body. The High Court concluded that “environmental damage” as a subset of “damage” is restricted to deterioration in the environmental situation and dismissed the claim as there was no evidence of any worsening of any relevant aspect or element of the environmental situation since April 2007.
The anglers’ society appealed this decision to the Court of Appeal and proposed that the Directive also imposes liability for pollution whose effect is to retard or prevent the natural recovery of the environment from damage previously imposed on it.
The Court of Appeal disagreed with this approach. It said that the obvious intent and effect of the Directive is to require an operator not to cause the condition of the environment to fall below its baseline condition; the condition it would have been in at the time of and but for his action or failure to act. The provisions do not require the operator to take steps to remedy pre-existent damage to the environment as this would, in practice, often require them to pay for earlier polluting activities of a previous operator. They said that matters of expert assessment are for the NRW to determine, as opposed to the courts, and referred to the clear finding made by NRW in their decision document. They also concluded that, as the concept of environmental damage in the Directive does not bear the wider meaning which the anglers’ society contended, the need for judicial review did not arise.
The appeal was dismissed.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
