The Court of Appeal has made a landmark ruling in an environmental case concerning Llyn Padarn in Llanberis.
It has dismissed an appeal by Seiont, Gwyrfai and Llyfni Anglers’ Society from the judgment of Mr Justice Hickinbottom on the meaning of “environmental damage” in the Environmental Liability Directive (ELD) and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (the Regulations) at Llyn Padarn.
Aaron & Partners, which represented Dŵr Cymru Welsh Water, said the case was the first to offer vital clarity on recent environmental legislation.
The dispute dates back to 2012 when the Anglers’ Society made a complaint to environmental regulator Natural Resources Wales (NRW) that there had been environmental damage caused to Llyn Padarn. The source of the complaint was an algal bloom in 2009 that was attributable, in part, to phosphates in the water at the lake, which is a Site of Special Scientific Interest (SSSI) because of its unique species of arctic char.
For years the lake has received treated wastewater discharged from the nearby village of Llanberis. In the modern era discharges have been regulated, with environmental permits becoming progressively stricter over time as to the levels of phosphates and other treatment by-products which may be discharged into the lake.
Following the bloom, NRW issued a notification to Welsh Water under the regulations which was quashed by the High Court in 2012. NRW issued a second notification in 2015. The decision alleged a drop in water quality (since recovered) but did not find any damage to the arctic char or SSSI.
NRW’s second notification was challenged by the Anglers’ Society, which claimed the regulator’s interpretation of environmental damage was too narrow. Welsh Water, First Hydro Company and Welsh ministers were joined as interested parties to the proceedings.
Mr Justice Hickinbottom was asked to decide if, under the ELD, “environmental damage” was limited to deterioration in the existing environmental condition of the lake or also included the prevention or suppression of the improvement of the lake to standards of water quality set in European legislation. He ruled that “environmental damage” meant a deterioration from the existing baseline and did not include a deceleration of the improvement to the environmental condition of the lake.
The Anglers’ Society appealed to the Court of Appeal. That appeal has been dismissed, with Lord Justice Lindblom agreeing with the original decision. He stated that the “baseline” before the damage occurs “is not set at some arbitrary date in the past, or at some arbitrary date in the future… it is deliberately fixed at the moment when the ‘damage’ occurs”.
The ruling also stated that as the Anglers’ Society had not specified a broader interpretation of environmental damage in their 2012 complaint, NRW was not obliged to consider damage of a “novel and entirely different type than that notified” by the Society.
“This case clarifies the meaning of environmental damage in respect of deterioration and impairment – as well as indicating the scope of the Regulations as applied to nationally designated sites such as SSSIs,” said Richard Forrester, partner at Aarons and an environmental law specialist. “It also highlights an important practical point about notification under the regulations where environmental damage is alleged. The appropriate authority is not required to assess the environmental damage on a broader basis than that notified by the complainant.
“The Environmental Liability Directive has never before been tested in England and Wales – so this case is at the cutting edge of statutory interpretation in environmental law.”
This article first appeared on wwtonline