Summary. The High Court has held that environmental damage is restricted to a deterioration of the existing state, and would not require the prevention or deceleration of the existing environmental situation.

Background. The Environmental Liability Directive 2004 (2004/35/EC) (the Directive) seeks to prevent and remediate environmental damage. It defines:

The Directive is implemented in Wales by the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (SI 2009/995) (2009 Regulations). Under the 2009 Regulations:

Facts. S was an unincorporated association which held fishing rights at a lake in Snowdonia which is a Special Area of Conservation.

The lake contained a unique population of Arctic charr, which was being, and had been historically, damaged by pollution from sewage and waste water treatment works. Pollution levels had improved significantly since the 1990s.

S notified RW that the discharge from its sewage works had caused environmental damage to an SSSI and to water, and argued that RW had failed to take measures to prevent and remedy the damage in accordance with the Directive.

RW found that the meaning of "environmental damage" was limited to a worsening of the environmental situation. S argued that the term also referred to the deceleration of improvement.

Decision. The court held that environmental damage under the Directive is restricted to the deterioration of an existing environmental state.

The baseline condition to which Article 2 refers as the condition which would have existed had the damage not occurred should not be interpreted to mean good condition. Restoration to the baseline level should not be taken to mean remediation to a good condition.

Comment. This is an important decision which marks the first time that the High Court has considered the Directive and its application in detail. Several points were made in relation to the objectives and implementation of the Directive through the 2009 Regulations, which will provide useful guidance for future reference.