Case law: Defining damage under the EU liability directive

11th February 2016

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  • Natural resources ,
  • Biodiversity ,
  • Ecosystems ,
  • Pollution & Waste Management ,
  • Prevention & Control



A recent case in the High Court highlights the scope of 'damage' under the Environmental Liability Directive.

In R (on the application of Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2015], the High Court ruled on the scope of ‘damage’ under the Environmental Liability Directive (ELD).

In this case, the society notified Natural Resources Wales (NRW) that discharges into a freshwater lake, Llyn Padarn, from the Llanberis sewage and wastewater treatment works was causing environmental damage. Llyn Padarn is a site of special scientific interest (SSSI) and home to a genetically distinct species, Salvelinus alpinus, known as Arctic charr. NRW decided there had been no damage to any relevant species, SSSI or surface water at Llyn Padarn.

The society challenged NRW’s decision, arguing that the regulator had incorrectly considered only damage that occurred after 6 May 2009, which is when the regulations transposing the ELD came into force. However, member states had been required to implement the ELD by 30 April 2007, so NRW agreed it would also take into account damage caused to Llyn Padarn after that date.

The key issue for the court was whether ‘damage’, as defined in article 2(2) of the ELD, includes not only deterioration of the environmental condition, but preventing, limiting, decelerating or otherwise impairing the progression of any relevant element to the environment. The court held that damage was restricted to deterioration in the environmental situation and did not include the prevention of an existing, already damaged environmental state from achieving a level that was acceptable in environmental terms or a deceleration in such achievement.


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