Important environmental judicial review

17/12/15

Seiont, Gwyrfai and Llyfni Anglers’ Society v National Resources Wales (Welsh Ministers intervening)

Mr.Justice Hickinbottom gave judgment today in the Administrative Court in Wales in a significant environmental judicial review challenge relating to the Environmental Liability Directive (‘the Directive’).  Although directed to a decision of Natural Resources Wales, the challenge depended on whether or not the Welsh Ministers had correctly transposed the Directive into their domestic regulations. The first alleged error was applying a different and lower standard of environmental protection (a site integrity test) to a site of special scientific interest (here, a Welsh lake containing the Arctic Charr, a rare species of fish) to that mandated by the Directive (a conservation status test). Whether or not the Directive applied, depended on whether the Welsh Ministers had decided to implement the Directive in respect of the Arctic Charr by making a relevant ‘determination’ under Article 2(3)(c) of the Directive.

The second alleged error was a failure by the Welsh Ministers to give effect in its regulations to true meaning of ‘environmental damage’ in Article 2(2) of the Directive (which the claimants argued meant more than a deterioration of the aquatic environment).

The Welsh Ministers successfully resisted the challenge on the basis that: (i) there was no evidence of any determination on the part of the Welsh Ministers to bring the Arctic Charr within the scheme of the Directive; (ii) the Directive was ‘firmly focused’ on deterioration which - if it occurred - led to the need for remediation measures under the ‘polluter pays’ principle.

The judgment is here.