505 [2016] PTSR R (Seiont Anglers’ Society) v Natural Resources Wales (QBD) A Queens Bench Division Regina (Seiont, Gwyrfai and Llyfni Anglers Society) v Natural Resources Wales [2015]EWHC3578 (Admin) B 2015 Nov 24, 25; Hickinbottom J Dec 17 Environment Ñ Pollution Ñ Environmental liability Ñ ÔEnvironmental damageÕ Ñ Defendant determining no environmental damage occurring at freshwater lake Ñ Whether defendant erring in approach to environmental damage Ñ Whether damage including deceleration of improvement in environmental state Ñ C Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (SI 2009/995) (as amended by Environmental Damage (Prevention and Remediation) (Amendment) (Wales) Regulations 2015 (SI 2015/1394) Parliament and Council Directive 2004/35/EC, art 2(2) The claimant unincorporated association held shing rights in a freshwater lake formed by glacially-derived moraine situated in Snowdonia, Wales. The lake was D home to a genetically distinct and thus unique population of the sh Salvelinus alpinus, otherwise known as Atlantic charr, and had been designated as a site of special scientic interest. The rst interested party operated a nearby sewage and waste water treatment works which discharged into the lake. Concerned about the e›ect of water quality on the dwindling number of charr, the claimant sent a notice of environmental damage to the defendant, pursuant to the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, which had been responsible 2004 35 1 E for transposing Parliament and Council Directive / /EC (the Environmental Liability Directive) into domestic law. The defendant approached the question of damage as being a reference only to a deterioration or worsening of the environmental state and concluded that an algal bloom caused by discharges from the sewage treatment works had caused damage and issued a liability notice to the rst interested party requiring the submission of remediation proposals. The claimant sought judicial review of the manner in which the defendant had dealt with the environmental damage notication. Central to the claim, and underpinning F all the grounds of challenge, was the contention that the defendant had erred in equating damage only with a worsening or deterioration, whereas article 2(2) of the Environmental Liability Directive provided a broader denition which included the prevention or deceleration of returning an existing environmental state to an environmentally acceptable state which was apt to encompass the continuing discharges into the lake by the rst interested party. On the claim G Held, dismissing the claim, that ÔdamageÕ as dened in article 2(2) of the Environmental Liability Directive, and e›ectively incorporated into the 2009 Regulations which had lawfully transposed the Directive, referred to a deterioration or worsening in an environmental situation; that the prevention of the return of an existing damaged environmental state to one that was environmentally acceptable, or impeding or slowing such a process, was not ÔdamageÕ within the meaning of article 2(2) of the Directive, and Ôenvironmental damageÕ being a subset of Ôdamage, H the same denitional restriction applied; that the restricted denition of ÔdamageÕ conformed with the underpinning principle of the Directive that the polluter should pay; that, therefore, the claimants case that the continuing sewage discharges were hindering the return of the lake to an environmentally acceptable state was incapable 1 Parliament and Council Directive 2004/35/EC, art 2(2): see post, para 66. ' 2016 The Incorporated Council of Law Reporting for England and Wales 506 R (Seiont Anglers’ Society) v Natural Resources Wales (QBD)[2016] PTSR of amounting to damage giving rise to liability under the Directive; and that, A accordingly, the defendant had been right when assessing the claimants notication to restrict its consideration of ÔdamageÕ to deterioration or worsening of the environmental situation as a result of something done by the water authority, which was determinative of the claim (post, paras 131, 133, 135, 139, 146, 176—180). Per curiam. In making the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 to include provision for sites of special scientic interest (SSSIs), the Welsh Ministers did not make a determination that all Wales SSSIs B should be designated for purposes equivalent to those laid down in Council Directive 92/43/EEC (the Habitats Directive), such that the provisions of Parliament and Council Directive 2004/35/EC on environmental liability which apply to protected habitats and species apply equally to SSSIs and species that inform their designation as SSSIs. The 2009 Regulations, properly construed, provide for parallel provisions for SSSIs and protected habitats and species under the Habitats Directive and Council Directive 79/409/EEC (the Wild Birds Directive) (post, para 128). C The following cases are referred to in the judgment: Bund fr Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland (Case C-461/13) EU:C:2015:433, ECJ CILFIT Srl v Ministry of Health (Case 283/81) EU:C:1982:335;[1982] ECR 3415, ECJ Commission of the European Communities v United Kingdom (Case C-417/08) D EU:C:2009:384;[2009] ECR I-106*, ECJ Riksskatteverket v Gharehveran (Case C-441/99) EU:C:2001:551;[2001] ECR I-7687, ECJ No additional cases were cited in argument. The following additional cases, although not cited, were referred to in the skeleton E arguments: Fratelli Costanzo SpA v Comune di Milano (Case 103/88) EU:C:1989:256;[1989] ECR 1839, ECJ Levy v Environment Agency [2002] EWHC 1663 (Admin); [2003] Env LR 11 Marks & Spencer plc v Customs and Excise Comrs (Case C-62/00) EU:C:2002:435; [2003]QB866;[2003] 2 WLR 665;[2002]STC1036;[2002] ECR I-6325, ECJ R v Parole Board, Ex p Watson [1996] 1 WLR 906;[1996] 2 All ER 641,CA F R v Tynedale District Council, Ex p Shield (1987) 22 HLR 144 R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20;[2003] 1 FCR 266;[2002] Lloyds Rep Med 148,CA R (Assura Pharmacy Ltd) v NHS Litigation Authority [2007] EWHC 289 (Admin) R (Campbell) v General Medical Council [2004] EWHC 1301 (Admin) R (Daly) v Secretary of State for the Home Department [2001] UKHL 26;[2001] G 2 AC 532;[2001] 2 WLR 1622;[2001] 3 All ER 433, HL(E) R (Edwards) v Environment Agency (No2) [2005] EWHC 657 (Admin); [2006] Env LR 3;[2005] JPL 1576 R (Roberts) v Secretary of State for Communities and Local Government [2008] EWHC 677 (Admin); [2009] JPL 81 R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] EWCA Civ 1291; 2006 1 3315 [ ] WLR ,CA H CLAIM for judicial review By a claim form the claimant, Seoint, Gwyrfai and Llyfni AnglersÕ Society, sought judicial review of the decision of 12 December 2014 of the defendant, Natural Resources Wales, that, save for an algal bloom in 2009, no other ' 2016 The Incorporated Council of Law Reporting for England and Wales 507 [2016] PTSR R (Seiont Anglers’ Society) v Natural Resources Wales (QBD) Hickinbottom J A environmental damage had occurred or was imminent at Llyn Padarn, a freshwater lake, as a result of the discharges from a sewage and waste water treatment works operated by Dwç r Cymru Cyfyngedig (trading as Dwç r Cymru Welsh Water). That decision had been made in response to an environmental damage notication made by the claimant on 7 February 2012 under regulation 29 of the Environmental Damage (Prevention and 2009 1 2015 B Remediation) (Wales) Regulations .On May , Patterson J directed that the application for permission to proceed with the claim be listed with the substantive claim to follow, if granted. The rst to third interested parties, Dwç r Cymru Cyfyngedig, the Welsh Ministers and First Hydro Co Ltd, respectively, were served with the proceedings. The facts and grounds for judicial review are stated in the judgment, post, paras 5—25 and 79—91. C David Wolfe QC (instructed by Fish Legal, Leominster) for the claimant. David Forsdick QC and Gwion Lewis (instructed by Bircham Dyson Bell LLP) for the defendant. Richard Kimblin (instructed by Aaron & Partners LLP, Chester) for the rst interested party. D Richard Gordon QC and Tom Cross (instructed by Legal Services Department, Welsh Government) for the third interested party. The second interested party did not appear and was not represented. 17 December 2015. HICKINBOTTOM J handed down the following judgment. E Introduction 1 This claim raises the important issue of whether, for the purposes of Parliament and Council Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L143,p56) (Ôthe Environmental Liability Directive), Ôenvironmental damageÕÕ includes the prevention or deceleration F of recovery from an existing, already-damaged environmental state; or whether it is restricted to a deterioration from an existing state. 2 The Seiont, Gwyrfai and Llyfni AnglersÕ Society, the claimant, is an unincorporated association which holds shing rights in respect of Llyn Padarn, Gwynedd. In this claim, it seeks to challenge the decision of Natural Resources Wales (formerly the Environmental Agency Wales) (NRW) G dated 12 December 2014 on the claimants notication to it that environmental damage had been caused by discharges into Llyn Padarn from the Llanberis Sewage and Waste Water Treatment Works (ÔLlanberis STW) operated by the rst interested party (Dwç r CymruÕÕ) (Ôthe 2014 decision document). NRW determined that, save for an algal bloom in 2009 which resulted in a drop in the ecological status of the water in Llyn Padarn, no other environmental damage had occurred or was imminent as a result of H such discharges. The claimant contends that NRW made that determination on the basis of an incorrect interpretation of Ôenvironmental damageÕÕ and, if the correct legal approach had been adopted, NRWs conclusions as to damage (and, thus, the remedial measures it required Dwç r Cymru to make) would, or may, have been di›erent.