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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Seiont, Gwyrfai and Llyfni Anglers' Society, R (on the application of) v Natural Resources Wales & Ors  EWHC 3578 (Admin) (17 December 2015)
Cite as:  WLR(D) 554,  PTSR 505,  EWHC 3578 (Admin)
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QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
B e f o r e :
| The Queen on the application of
SEIONT, GWYRFAI AND LLYFNI
|- and -
|NATURAL RESOURCES WALES
|- and -
|DWR CYMRU CYFYNGEDIG
trading as DWR CYMRU WELSH WATER
FIRST HYDRO COMPANY LIMITED
THE WELSH MINISTERS
David Forsdick QC and Gwion Lewis (instructed by Bircham Dyson Bell LLP)
for the Defendant
Richard Kimblin (instructed by Aaron & Partners LLP) for the First Interested Party
The Second Interested Party did not appear and was not represented
Richard Gordon QC and Tom Cross (instructed by Legal Services Department,
Hearing dates: 24-25 November 2015
Further written submissions: 2-5 December 2015
Crown Copyright ©
Mr Justice Hickinbottom:
The Factual Background
i) Lack of spawning grounds. Historically, Llyn Padarn charr migrated upstream to spawn on the north-western littoral areas of Llyn Peris. The hydro-electric works, to which I have referred, not only damaged or destroyed particular spawning beds, they prevented any upstream migration by fish to the smaller lake. Charr have subsequently spawned on the banks of the Afon y Bala but, it seems, with significantly less success. Steps continue to be taken to improve the available spawning grounds; but, in the meantime, since 2011 a programme of restocking Llyn Padarn with fry and parr has been undertaken. That programme continues.
ii) High level of nutrients in the water. Charr require water that is cold, and high in dissolved oxygen ("DO"). The amount of phytoplankton in lakes is influenced by various nutrients in the water, of which phosphorous has the greatest influence on primary productivity. Phosphorous in lakes is largely derived from sewage. High levels of nutrients from sewage can accelerate reproduction and thus increase the phytoplankton biomass – sometimes rapidly and dramatically, in the form of an algal "bloom". As each alga is short-lived, this can give rise to a substantial amount of dead organic matter in the water, particularly in the hypolimnion, i.e. the lower depths where the water is non-circulating and thus always relatively cold even in summer months. The decomposition of this matter consumes oxygen from the water, which can reduce the DO level.A body of water that is lacking in plant nutrients and high in levels of DO is called "oligotrophic". When it is rich in nutrients and low in levels of oxygen, it is called "eutrophic". Whilst naturally oligotrophic, it is thought that Llyn Padarn became eutrophic many years ago, because of the discharges of sewage into the lake; and the charr population has suffered as a result.
i) the statement of Nina Jones dated 26 June 2015: Ms Jones is an Environmental Policy Manager with Dwr Cymru; and
ii) the statement of Peter Daldorph dated 25 June 2015: Mr Daldorph is a consultant in strategy, assessment and management in the water industry.
Their evidence, so far as relevant to this claim, is briefly as follows. None is challenged.
"28. There are three stages to the treatment of effluent in the STW.
29. In the primary stage all flows enter a new balancing tank. They are then screened before being passed into the old balancing tank. The balancing tanks even out the flows. Thereafter all flows are passed forward into the primary settlement tanks where typically around 50% of the solid matter will settle out. The effluent receives its first dose of ferric as it passes into these primary tanks.
30. Settled primary effluent then overflows from the primary tanks to two distributor chambers whence the primary effluent is sent to the four biological filters. At this secondary stage biological treatment occurs as bacteria in the filters digest the biological content of the effluent. The effluent passes from these filters to the humus tanks.
31. There are four small and one large humus tank. The effluent receives a second small dose of ferric to assist settlement in these tanks. At this point the effluent in most STWs would be classed as secondary treated and ready for discharge. However at Llanberis the effluent goes through an additional (tertiary) process.
32. From the humus tanks the treated effluent is passed through four sand filters to remove any residual suspended matter including precipitated phosphorous. At present, there is also an additional BluePRO sand filter which was originally installed as a trial to evaluate the efficiency of this technology as an additional innovative method of further reducing phosphorous content of the final effluent. This can process up to 14 litres of treated effluent per second. The trial was successful and a second BluePRO sand filter will be installed. This system will be fully commissioned and operational for 31 March 2016.
33. Once the treated effluent is passed through this three stage process, it is discharged through the final effluent channel. The quantity of the final effluent being discharged is monitored by an 'Mcerted' flow meter which can measure flow in l/sec or mł/day. 'Mcerted' means that the meter accuracy is independently audited. In addition there is a sampling point where samples of final (tertiary tested) effluent can be collected and tested visually on site or sent for laboratory analysis."
That is the process for fully treated sewage. The process is compliant with the relevant discharge consents.
"22. The Llanberis Village SPS is the terminal SPS for the main part of the village, and hence takes most of the effluent flow from the town. There are two rising mains from this terminal SPS to the STW.
(1) The dry rising main – this is used to pump the base level of the town's sewage to the STW where it passes via the inlet works into the balancing tanks.
(2) The storm water rising main – this is used to prevent flooding when rainfall causes levels in the public sewers to rise. This storm water is also pumped to the STW where it passes into four storm water storage tanks.
23. The dry weather flow main can transfer flows at a rate of up to 20 litres per second. At the STW, the effluent in the dry weather flow main is screened and balanced before it passes through the full treatment process.
24. In dry weather, only the dry weather flow main operates. During times of heavy rainfall when the dry weather flow main is pumping at 20 litres per second (i.e. at full capacity), the storm water main automatically starts to transfer the storm water to the STW. The storm water main can transfer flows at a rate of up to 80 litres per second.
25. The effluent from the storm water main goes direct to the four storm water tanks at the STW which hold a total of 150mł of storm water. When incoming flow reduces sufficiently, the effluent stored in the storm water tanks is pumped into the balancing tank before it passes through the full treatment process.
26. Effluent from the storm water storage tanks will only discharge directly into Afon y Bala if
(1) the dry weather flow main is pumping base flow of 20 litres per second, and
(2) the storm tanks are full to capacity and thus overflowing.
There is a flow meter on the storm water tanks so that the overflow rate can be measured in l/sec or mł/day.
27. The Claimant's case notes that discharges from the storm water tanks are of untreated sewage. In fact, the storm water effluent undergoes a settlement stage before discharge and is highly diluted at the point of discharge."
The amount of settled storm water discharge is therefore dependent upon the amount of storm water load, but also the capacity of the holding tanks. Over time, at Llanberis STW, that capacity has increased.
The Legal Background
The Habitats Directive
"… terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural."
"(1) For Special Areas of Conservation, Member States shall establish the necessary measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative and contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the site.
(2) Member States shall take appropriate steps to avoid, in the Special Areas of Conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive…
(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site…, the competent authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public…".
"In agreement with each Member State concerned, the Commission shall identify, for sites of Community importance for which co-financing is sought, those measures essential for the maintenance or re-establishment at a favourable conservation status of the priority natural habitat types and priority species on the sites concerned, as well as the total costs arising from those measures."
Article 1(e) and (i) define "conservation status of a natural habitat" and "favourable conservation status" in terms essentially repeated in article 2(4) of the Environmental Liability Directive, quoted below (at paragraph 69(iii)).
The Wildlife and Countryside Act 1981
The Water Framework Directive
"(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water…
(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4…
(iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive [i.e. by 2015], in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4…".
"37. … [T]he ultimate objective of [the WF Directive] is to achieve, by coordinated action, 'good status' of all EU surface waters by 2015.
38. The environmental objectives that the Member States are required to achieve are specified in article 4(1) of [the WF Directive].
39. That provision imposes two objectives that are separate, although intrinsically linked. First, in accordance with article 4(1)(a)(i) of [the WF Directive], the Member States are to implement the necessary measures to prevent deterioration of the status of all bodies of surface water (obligation to prevent deterioration). Second, pursuant to article 4(1)(a)(ii) and (iii), the Member States are to protect and restore all bodies of surface water with the aim of achieving good status by the end of 2015 at the latest (obligation to enhance).
40. The origin of those two objectives is apparent from the drafting history of [the WF Directive]. So far as concerns in particular the obligation to prevent deterioration of the status of surface waters, the provisions at issue, in their initial version, could be interpreted as allowing bodies of water classified above 'good status' to deteriorate to that class once [the WF Directive] was adopted. It is for that reason that the European Parliament proposed an amendment enabling a distinction to be drawn between the obligation to achieve 'good status' and that of preventing any deterioration by the insertion in article 4(1) of the Directive of a new indent laying down the latter obligation separately."
"17. 'Surface water status' is the general expression of the status of a body of water, determined by the poorer of its ecological status and its chemical status.
18. 'Good surface water status' means the status achieved by a surface water body when both its ecological status and its chemical status are at least 'good'.
21. 'Ecological status is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V.
22. 'Good ecological status' is the status of a body of surface water, so classified in accordance with Annex V.
23. 'Good ecological potential' is the status of a heavily modified or an artificial body of water, so classified in accordance with the relevant provisions of Annex V.
24. 'Good surface water chemical status' means the chemical status required to meet the environmental objectives for surface waters established in article 4(1)(a), that is the chemical status achieved by a body of surface water in which concentrations of pollutants do not exceed the environmental quality standards established in Annex IX and under article 16(7), and under other relevant Community legislation setting environmental quality standards at Community level."
"The values of the biological quality elements for the surface water body type show low levels of distortion resulting from human activity, but deviate only slightly from those normally associated with the surface water body type under undisturbed conditions."
"Moderate" status is defined as:
"The values of the biological quality elements for the surface water body type deviate moderately from those normally associated with the surface water body type under undisturbed conditions. The values show moderate signs of distortion resulting from human activity and are significantly more disturbed than under conditions of good status."
Water failing to achieve moderate status is classified as "poor" or "bad".
"There are slight changes in the composition and abundance of planktonic taxa compared to the type-specific communities. Such changes do not indicate any accelerated growth of algae resulting in undesirable disturbance to the balance of organisms present in the water body or to the physicochemical quality of the water or sediment.
A slight increase in the frequency and intensity of the type-specific planktonic blooms may occur."
Therefore, status is to be assessed as "good" only where there is no indication that accelerated growth of phytoplankton will result in "undesirable disturbance" either to the balance of organisms present in the water body or to "the physicochemical quality of the water or sediment".
"Temperature, oxygen balance, pH, acid neutralising capacity, transparency and salinity do not reach levels outside the range established so as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements.
Nutrient concentrations do not exceed the levels established so as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements."
Similarly, for heavily modified water bodies, "good ecological potential" is defined as follows:
"The values for physicochemical elements are within the ranges established so as to ensure the functioning of the ecosystem and the achievement of the values specified above for each of the biological quality elements.
Temperature and pH do not reach levels outside the ranges established so as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements.
Nutrient concentrations do not exceed the levels established so as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements."
i) Total phosphorous ("TP"): We are here concerned with the phosphate-content, not of discharges, but of the surface body of water itself. Reflecting paragraph 1.2.2 of Annex II to the WF Directive itself, the standard for TP in freshwater lakes is dependent upon mean depth of the lake. Table 5 in Part 2 of the Directions provides that a "deep" lake is one of over 15m mean depth, and a "shallow" lake is one of between 3 and 15m mean depth. Paragraph 7 and table 11 provide that the "good" threshold value in a low alkalinity body of water (such as Llyn Padarn) is that the annual mean TP concentration must be below 10µg/l for a shallow lake and 8µg/l for a deep lake. Llyn Padarn has a mean depth of 14.2m, and thus falls (just) into the "shallow lake" category; although, as I understand it, since 2012 NRW has measured TP levels for Llyn Padarn against the deep lake threshold of 8 µg/l, on the basis that, although by definition the lake is "shallow", the waters of Llyn Padarn are in places stratified so that it has some deep lake characteristics.
ii) Dissolved oxygen ("DO"): Paragraph 6 and table 7 in Part 2 of the 2010 Directions appear to provide that the "good" threshold value for DO for a salmonid mixed (rather than fully stratified) freshwater lake such as Llyn Padarn – modified or unmodified – is 7mg/l as a mean value for the whole water column in the months of July and August. However, it appears that NRW used 4mg/l as a mean value for the hypolimnion (see, e.g., paragraph 120 of the 2014 decision document), and it seems to be common ground that that was an appropriate DO threshold to adopt. In the event, the precise DO threshold is not vital, because it is common ground that the DO level has fallen short of the threshold level since 2007 and continues to do so.
"[T]he concept of 'deterioration of the status' of a body of surface water in article 4(1)(a)(i) of [the WF Directive] must be interpreted as meaning that there is a deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the Directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole."
It explained (at ):
"A different interpretation of that concept would… deter Member States from preventing deterioration of the status of a body of surface water within a status class. Since classification of a body of surface water depends on the poorest value of the applicable parameters, all the other values could be reduced without that having legal consequences."
"As set out in article 174 of the Treaty, the Community policy on the environment is to contribute to pursuit of the objectives of preserving, protecting and improving the quality of the environment, in prudent and rational utilisation of natural resources, and to be based on the precautionary principle and on the principle that preventative action should be taken, environmental damage should, as a matter of priority, be rectified at source and that the polluter should pay."
Thus, the WF Directive introduces the principle that, where preventative action is not possible, environmental damage should be rectified at source and "the polluter should pay".
"Member States will not be in breach of this Directive when:
- failure to achieve good ground water status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or ground water is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or
- failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities
and all the following conditions are met
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water
(b) the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under article 13 and the objectives are reviewed every six years;
(c) the reason for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body cannot for reason of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option."
I shall return to that article when I deal with Ground 3 (see paragraphs 163-165 below).
The Environmental Liability Directive
"… to establish a framework of environmental liability based on the 'polluter pays' principle, to prevent and remedy environmental damage."
"(2) The prevention and remedying of environmental damage should be implemented through the furtherance of the 'polluter pays' principle, as indicated in the Treaty and in line with the principle of sustainable development. The fundamental principle of this Directive should therefore be that an operator whose activity has caused the environmental damage or the imminent threat of such damage is to be held financially liable, in order to induce operators to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liabilities is reduced."
"(13) Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors."
"(15) Since the prevention and remedying of environmental damage is a task directly contributing to the pursuit of the Community's environmental policy, public authorities should ensure the proper implementation and enforcement of the scheme provided for by this Directive."
"(18) According to the 'polluter pays' principle, an operator causing environmental damage or creating an imminent threat of such damage should, in principle, bear the costs of the necessary preventative or remedial measures. In cases where a competent authority acts, itself or through a third party, in the place of an operator, that authority should ensure that the cost incurred by it is recovered from the operator. It is also appropriate that the operators should ultimately bear the cost of assessing environmental damage and, as the case may be, assessing an imminent threat of such damage occurring."
"This Directive shall only apply to environmental damage or to an imminent threat of such damage caused by pollution of a diffuse character, where it is possible to establish a causal link between the damage and the activities of individual operators."
" 'damage' means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly."
i) "Natural resource" is defined as "protected species and natural habitats, water and land" (article 2(12)).
ii) "Natural resource service" is defined as "the functions performed by a natural resource for the benefit of another natural resource or the public" (article 2(13)).
iii) In its turn, "protected species and natural habitats" is defined in article 2(3):" 'protected species and natural habitats" means:(a) the species mentioned in article 4(2) of Directive 79/409/EEC [i.e. "the Wild Birds Directive"] or listed in Annex I thereto or listed in Annexes II and IV to [the Habitats Directive];(b) the habitats of species mentioned in article 4(2) of [the Wild Birds Directive] or listed in Annex I thereto or listed in Annex II to [the Habitats Directive], and the natural habitats listed in Annex I to [the Habitats Directive] and the breeding sites or resting places of the species listed in Annex IV to [the Habitats Directive]; and(c) where a Member State so determines, any habitat or species, not listed in those Annexes which the Member State designates for equivalent purposes as those laid down in these two Directives."
" 'environmental damage' means:
(a) damage to protected species and natural habitats, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I;
Damage to protected species and natural habitats does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of [the Habitats Directive] or Article 9 of Directive 79/409/EEC [the Wild Birds Directive] or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation.
(b) 'water damage', which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in [the WF Directive], of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies;…
(c) 'land damage', which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms."
i) It was rightly common ground before me that "environmental damage" as defined in article 2(1) is a subset of "damage" as defined in article 2(2).
ii) As I have indicated, "protected species and natural habitats" is defined in article 2(3) (see paragraph 67(iii) above).
iii) "Conservation status", of both habitats and species, is defined in article 2(4) in essentially the same terms as article 1(e) and (i) of the Habitats Directive, as follows:" 'Conservation status' means:(a) in respect of natural habitat, the sum of the influence acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within, as the case may be, the European territory of the Member State to which the Treaty applies or the territory of a member state or the natural range of that habitat.The conservation status of a natural habitat will be taken as 'favourable' when:– its natural range and areas it covers within that range are stable or increasing,– the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and– the conservation status of its typical species is favourable as defined in (b).(b) in respect of a species, the sum of influences acting on the species that may affect the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member State to which the Treaty applies or the territory of a member state or the natural range of that species.The conservation status will be taken as 'favourable' when:– population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats,– the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and– there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis."Therefore, "environmental damage" to habitats protected by the Habitats or Wild Birds Directives is defined as any damage (as defined in article 2(2)) that has "significant adverse effects" on reaching or maintaining the favourable conservation status of the relevant habitat, which is in its turn dependent upon the conservation status of relevant species being favourable.
iv) Importantly for the purposes of this claim, "baseline condition" is defined in article 2(14) as follows:"… the condition at the time of the damage of the natural resources and services that would have existed had the environmental damage not occurred, estimated on the basis of the best information available";and "recovery" is defined in article 2(15) as:"… in the case of water, protected species and natural habitats the return of the damaged natural resources and/or impaired services to baseline condition…".
"The competent authority shall require that the preventative measures are taken by the operator…";
and, by article 6(3), where environmental damage has occurred:
"The competent authority shall require that the remedial measures are taken by the operator."
I shall consider these provisions in more detail when I deal with Ground 6 (see paragraphs 167-175 below).
"Remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation, where:
Primary remediation is any remedial measure which returns damaged natural resources and/or impaired services to, or towards, baseline condition;
Complementary remediation is any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services;
Compensatory remediation is any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect;
Where primary remediation does not result in the restoration of the environment to its baseline condition, then complementary remediation will be undertaken. In addition, compensatory remediation will be undertaken to compensate for the interim losses…".
The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009
i) NRW is the enforcing authority (regulation 10(2)), and thus the "competent authority" for the purposes of the EL Directive.
ii) Unless otherwise defined in the Regulations, the definitions within the EL Directive apply. For example, "damage" is not defined; and so the definition in article 2(2) (quoted at paragraph 66 above) applies.
iii) By virtue of regulation 2, "natural habitat" is defined in terms of the habitats protected by the Habitats and Wild Birds Directives. "Natural resource" is defined as habitats and species protected by those Directives, "species and habitats on [an SSSI]", water and land.
iv) "Environmental damage" is defined in regulation 4:"(1) … '[E]nvironmental damage' is damage to –(a) protected species or natural habitats, or [an SSSI],(b) surface water or groundwater,(c) marine waters, or(d) landas specified in this regulation.(2) Environmental damage to protected species or natural habitats or [an SSSI] means damage of a kind specified in Schedule 1.(3) Environmental damage to surface water means damage to a surface water body classified as such pursuant to [the WF Directive] such that –(a) a biological quality element in Annex V to that Directive,(b) …(c) a physicochemical quality element listed in Annex V to that Directive,changes sufficiently to lower the status of the water body in accordance with [the WF Directive] (whether or not the water body is in fact reclassified as being of lower status)…".The words in the last parentheses of course presaged the conclusions of the Weser case.
v) Schedule 1 further defines "environmental damage" for the purposes of regulation 4. Paragraph 1 provides:"In the case of protected species or natural habitat (other than damage on [an SSSI] to which paragraph 4 applies) the damage must be such that it has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat…".
vi) Paragraph 4(1) of Schedule 1 provides that, in the case of an SSSI, the damage must be to the species or habitat notified under section 28 of the 1981 Act, or species or habitats protected under the Habitats or Wild Birds Directives. It continues, in paragraph 4(2)"The damage must have an adverse effect on the integrity of the site (that is, the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats or the levels of populations of the species affected)."
vii) Paragraph A1.11 of guidance upon the application of the 2009 Regulations and English equivalent, issued jointly by the Welsh Ministers' predecessor (the Welsh Assembly Government) and the parallel authority responsible for England (the Secretary of State for the Environment, Food and Rural Affairs) in November 2009 ("the 2009 Regulations Joint Guidance"), suggests a two-stage approach to this "site integrity effects test":"The first step in assessing whether there is a site integrity effect is to determine whether the activity has affected relevant species or habitats, by referring to Annex 6 of this guidance and the relevant citations…. If relevant species have been affected, the next stage is to determine whether the effect is severe enough to be 'site integrity effect'."
viii) By regulation 8 of the 2009 Regulations, it is said that the Regulations do not apply to damage that took place before the coming into force of the Regulations; or damage that takes place after that date but is caused by an incident, event or omission before that date; or to damage caused by an incident, event or omission after that date if it derives from an activity that took place before that date.
ix) Regulations 13-16, reflecting article 5 of the EL Directive, provide for the prevention of environmental damage. Regulation 13 is particularly relevant to Ground 6, and is set out below in that context (see paragraph 171).
x) Regulations 17-23 deal with remediation. Again directly reflecting the EL Directive – and its concept of "baseline condition" – paragraph 3 of Schedule 4 Part 1 expressly states that:"The objective of remediation is to achieve the same level of natural resource or services as would have existed if the damage had not occurred";and, in paragraph 4 of that same part, there are provisions for primary and complementary remediation which mirror the provisions of the EL Directive to which I have referred. Regulation 18 requires an enforcing authority which decides that there is environmental damage to notify the relevant operator(s) of any activity that caused the damage that the damage caused was environmental damage, the operator's activity was a cause of it, and that the operator is required to submit proposals for measures to ensure remediation will be achieved ("a liability notice"). Once those proposals have been received, under regulation 20, the authority must serve a remediation notice on the operator that specifies (amongst other things) "the measures necessary for remediation of the damage, together with reasons" (regulation 20(2)(b)).
xi) An operator has a right of appeal to the Welsh Ministers against a liability notice (regulation 19) and against a remediation notice issued by the enforcing authority (regulations 20-21).
xii) If an operator fails to take steps to prevent or remedy environmental damage in accordance with these provisions (including by failing to comply with a remediation notice), he commits a criminal offence (regulations 13(3), 14(3) and 20(4)).
xiii) By regulation 29, an interested party may notify the appropriate enforcing authority of any environmental damage which is being, or has been, caused or of which there is an imminent threat (regulation 29(1)). The notification has to be accompanied by a statement explaining the way in which the notifier will be affected by the damage, or the reason he has a sufficient interest; and sufficient information to enable the enforcing authority to identify the location and "the nature of the incident" (regulation 29(2)). The enforcing authority must consider the notification and inform the notifier of any action, if any, it intends to take (regulation 29(3); and must, before taking any decision, give the operator an opportunity to submit comments (regulation 29(4)). However, regulation 29 (3) and (4) do not apply if "in the opinion of the enforcing authority the information provided does not disclose any environmental damage or threat of environmental damage…" (regulation 29(5)(b)).
The Regulation of Water and Sewerage Services
The Claimant's Notification, NRW's First Decision and the First Judicial Review
"In particular, the loading of phosphates has grown to such an extent that this is no longer an oligotrophic or nutrient-free water body and is deteriorating.
The phosphate inputs have caused environmental damage to the habitat and to the fishery – including to the unique population of genetically distinct Arctic charr. This is also a SSSI which has been so designated partly due to the presence of this species.
Our members' fishing has suffered as a consequence of the pollutions. In fact, the standard of the angling for salmon and sea trout has now plummeted and continues to be in free fall."
It was said that "environmental damage had been caused by discharges of sewage pursuant to regulation 4 of the Regulations"; and "although damage has taken place before the coming into force of the Regulations, damage continued to occur from the time at which the Regulations came into effect and [NRW] has substantial evidence of discharges of sewage since then". NRW were asked to "act to prevent further damage to the environment as well as remediating damage that has already been caused".
"[NRW] should make sure that Dwr Cymru does not delay in sorting out all the misconnections to the sewer, stop infiltration, introduce complete treatment for storm-related sewage or start to separate surface run-off water from sewage which flows to treatment at the works in Llanberis. That way they will ensure that the lake has at least a chance of recovering."
"This is due to the weight of evidence of a change in status in the phytoplankton quality element in the 2012 assessment. The change in status is directly attributable to the algal bloom in 2009. The [Llanberis STW] has been identified as the source of the nutrients that caused the bloom."
However, it continued that, following that bloom:
"In 2010, NRW imposed a regulator-initiated permit variation. The permit variation reduced phosphate limits from 1.6 to 1.0 mg/l. NRW considers that thus far, the measures implemented by the operator to comply with the revised permit limits should result in the phytoplankton quality element achieving good ecological potential in the next WF [Directive] ecological status assessment in 2015. Other elements, notably [DO] are at less than good WF [Directive] status and lake modelling has identified that further reduction in nutrient levels entering the lake would enhance the protection afforded to the ecosystem supporting the species and habitats in the Padarn SSSI."
The decision document then set out the additional measures that Dwr Cymru had undertaken "intended ultimately to reduce the nutrient input into the lake".
i) The temporal reach of the 2009 Regulations. Article 19(1) of the EL Directive required implementation by Member States by 30 April 2007. The 2009 Regulations came into effect only on 9 May 2009; and, in line with the 2009 Regulations, NRW only considered environmental damage occurring after that date. On 18 June 2009, the European Court of Justice held that the United Kingdom was in breach of its obligations under the Directive, by reason of its late implementation (Commission of the European Communities v United Kingdom (2009) Case No C-417/08). In the first judicial review, it was contended that NRW consequently erred in only considering damage that had occurred since 2009, rather than 2007.
ii) Incorrect approach to "baseline condition". It was contended that NRW erred in not considering the correct baseline condition, i.e. the condition as at 2007. In relation to this ground, it was said (at paragraph 90 of the Grounds of Claim in the first judicial review) that the baseline condition "is that which would prevail without the damage in question and not, therefore, the condition which prevails because of some prior damage, whether because of the incorrect cut-off date or otherwise".
iii) The failure to secure preventative measures. It was contended that, whilst giving a power to NRW to require preventative measures to be taken, the 2009 Directions wrongly fail to impose a duty on NRW to do so.
"In its fresh consideration, [NRW] will also take into account all environmental damage caused by an emission, event or incident taking place after 30 April 2007 if it derives from an activity which started before that date but which was not finished before then."
NRW's Second Decision
i) The TP mean for 2007-13 was 8.09µg/l (paragraph 302), and for 2011-13 was 7.9µg/l (paragraph 305). TP had exceeded the threshold level set by the 2010 Directions of 10µg/l for shallow lakes – into which category Llyn Padarn falls – in 2009, and that was due to discharges from the Llanberis STW which caused the algal bloom that year (paragraph 367). That was the subject of the second liability notice issued to Dwr Cymru, with the 2014 decision document. Otherwise, the TP level had neither (a) exceeded the 10µg/l limit, nor (b) worsened since April 2007. Levels had fallen from 8µg/l to 6µg/l in the years 2012 to 2014 (paragraph 308 and table 4). NRW concluded that "there is no threat of imminent environmental damage occurring as a result of nutrient enrichment" (paragraphs 51 and 370).
ii) With regard to DO, it was accepted that, each year from 2003 to 2013, DO levels in the hypolimnion fell to below the target level of 4 µg/l in the summer months. On the basis of scientific data, the document proceeded on the basis that the lower DO tolerance range for charr was 2.3-3.1µg/l. Even at the higher of those levels and at the times of the lowest recorded DO levels, the charr's available habitat in Llyn Padarn, whilst restricted, was nevertheless at least 6m. The document concluded that (a) there was no evidence of a decline in DO levels since April 2007 (paragraph 160), (b) the levels of DO were not such as to exclude charr from the hypolimnion (paragraph 144) and (c) there was insufficient evidence of any demonstrable change in charr habitat volume since April 2007 (paragraph 145).
iii) All other biological and physicochemical elements used in the WF Directive classification were, at least, of "good" ecological potential/status.
iv) There had been no evidence of a decline in charr population in Llyn Padarn since April 2007 (paragraph 163).
v) There had been no demonstrable impact from the activity of Dwr Cymru on charr habitat since April 2007 (paragraph 146).
The Grounds of Claim
Ground 1: "Environmental Damage" in the context of Natural Habitats: Under the EL Directive, NRW erred in its approach to "environmental damage" to the SSSI, as a habitat, by restricting that term to a worsening of the environmental situation.
In its fully developed form, this ground involves the contention that (i) in making the 2009 Regulations, the Welsh Ministers had exercised their power under article 2(3)(c) of the EL Directive, to determine that all SSSIs in Wales be designated as habitats for equivalent purposes as those laid down in the Habitats Directive, SSSIs enjoy the same protection as habitats protected under that Directive); and (ii) in respect of such sites, the site integrity test for damage found in paragraph 4(2) of Schedule 1 to the Regulations must be ignored because it runs counter to the test for protection from damage that applies to habitats protected under the Habitats Directive. In considering the environmental damage to the Llyn Padarn SSSI, NRW therefore erred by applying the site integrity test.
Ground 2: Standard of Proof: NRW erred in the standard of proof it adopted in respect of the issue of environmental damage.
Ground 3: "Environmental Damage" in the context of Water: Under the EL Directive, NRW erred in its approach to "environmental damage" to Llyn Padarn itself, as a surface water body, again by restricting that term to deterioration of a relevant element.
Ground 4: Numbers etc of Fish: NRW erred in failing to take into account a material consideration, namely "composition, abundance and age structure of fish fauna", i.e. the charr.
Ground 5: The Effects of the Power Station NRW erred in its approach to damage caused by the hydro-electric power station, in proceeding on the basis that there was no – or, at least, no adequate – evidence to link any particular damaging "emission, event or incident" since April 2007 to the power station.
Ground 6: The Duty to Require Preventative Measures: The 2009 Regulations failed properly to implement the EL Directive, because article 5 of the Directive requires "preventative measures" to be taken in relation to environmental damage; but the 2009 Regulations give NRW only a power to require such measures.
"(g) In any event, when it comes to the SSSI (of which the charr is a designated conservation feature) the 'baseline condition' for reference purposes should be the undamaged status of the SSSI. At present, as above, it is well below that status. In respect of nutrient enrichment it is being maintained at that degraded level (something which NRW's erroneous focus on 2009 damaged state as providing the 'baseline' leads it to think is acceptable) by the ongoing pollution in play here. If pollution load was removed (or even drastically reduced) then over time, the charr population and its habitat, and thus the SSSI, would gradually recover to the true 'baseline condition'. A significant and adverse environmental pressure on it would be released.
(h) The [Dwr Cymru] pollution is at the very least holding water quality at a steady – worse – level rather than allowing it to recover. That, in itself, is ongoing 'environmental damage', which NRW has failed even to address. But the situation is actually deteriorating when the information on [DO] and charr is taken into consideration."
Second, Mr Wolfe relied upon paragraph 27 of Mr Hughes' statement of 8 February 2012, quoted in paragraph 80 above, which again referred to steps which Mr Hughes considered ought to be taken to "ensure that the lake has at least a chance of recovering".
The Claimant's Case on Causation
"33. … [T]he lake is becoming 'eutrophic' (or nutrient-rich) because treated and untreated sewage entering the lake contains substantial quantities of phosphates which increase the [TP] levels in the water.
34. Those increased levels of nutrients create conditions that can (and do) significantly increase the growth of algae from what would naturally be in the water. That increase in algal growth in turn reduces water quality because, when algae die, they sink to the bottom of the lake and decompose. As this process happens, it in turn depletes the level of oxygen in the water (known as [DO]), upon which the charr depend for survival. The impact is greater with higher levels of nutrients and it is not necessary for there to be a visible and dramatic bloom (such as occurred with the toxic bloom of 2009) for this to happen to varying degrees each year.
35. That, in turn, limits the suitability of the lake for Arctic charr."
This case as to mechanism was maintained: it is, in essence, repeated in paragraph 16 of Mr Wolfe's skeleton argument.
"There is a historical issue with nutrient levels in the lake that were known to originate from the [Llanberis STW] discharges. Whilst the nutrient levels themselves are not considered to affect the charr adversely, they have an indirect effect in that they have the potential to affect the habitat by causing a blue-green algal bloom, as seen in 2009. This in turn has the potential to lower dissolved oxygen levels in the bottom layer of the lake…".
Ground 1: "Environmental Damage" in the context of Natural Habitats
The 2014 decision document
i) Regulation 4 defines "environmental damage" to include damage to protected species or natural habitats, or an SSSI (paragraph 72).
ii) Within an SSSI, to be "environmental damage", by paragraph 4(1) of Schedule 1 to the 2009 Regulations, damage must be to a Habitats or Wild Birds Directive protected habitat or species, or to a habitat or species notified under section 28 of the 1981 Act. The only relevant species was charr (although, for the sake of completeness, I should add that the 2014 decision document considered all other notified and protected species, finding that there was no environmental damage in respect of any, a conclusion that is not disputed) (paragraph 75).
iii) Furthermore, by paragraph 4(2) of the same schedule, the damage "must have an adverse effect on the integrity of the site (that is, the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats or the levels of populations of the species affected)" (paragraph 76).
iv) The decision document then refers to, and applies, the two-stage procedure set out in paragraph A1.11 of the 2009 Regulations Joint Guidance (quoted at paragraph 74(vii) above).
v) First, it considered whether there had been any adverse effect on a relevant species in terms of (e.g.) reduction in the area of habitat, structure, function or quality of habitat, or the physical, chemical, hydrological or biological processes that support the relevant habitats or species (see paragraphs 81 and 95). In line with the requirements of the Consent Order schedule (and, of course, the EL Directive itself), in doing so, it considered the effects of all emissions from Llanberis STW after April 2007.
vi) In respect of charr, NRW conducted a detailed assessment (paragraphs 96-133), and concluded that, since April 2007, (a) there had been no demonstrable reduction on charr habitat area or volume (paragraphs 136 and 145), (b) there had been no demonstrable impact from the activity of Dwr Cymru as an operator on charr habitat in the SSSI (paragraph 146), including in respect of DO and TP levels (paragraphs 147 and 160), and (c) no decline in charr population could be demonstrated with any statistical certainty, and there was no (or, at least, no sufficient) evidence that any post-April 2007 emission, event or incident linked to the economic activities of any operator had caused any decline in the charr population (paragraphs 151 and 163).
vii) Having concluded that there was no post-2007 adverse impact on the habitat, water or charr as a result of Dwr Cymru's discharges from the Llanberis STW into Llyn Padarn, it was unnecessary to proceed to the second, site specific stage of the exercise (paragraph 166).
The Claimant's Submissions
i) If and insofar as regulation 4(2) of the 2009 Regulations purported to make habitats and species that were subject to the protection of the Habitats and Wild Birds Directives subject to a lesser standard of protection if they also fell within an SSSI – by requiring damage to satisfy the site integrity test – it failed properly to transpose the Directive and was unlawful. It must be read up to require the higher level of protection for those habitats and species protected by the two Directives, whether inside or outside an SSSI.
ii) In making the 2009 Regulations, the Welsh Ministers had exercised their power under article 2(3)(c) of the EL Directive, to determine that all SSSIs in Wales be designated as habitats for equivalent purposes as those laid down in the Habitats Directive. Having designated SSSIs in that way, it was not open to the Welsh Ministers then to apply to SSSIs a different test or standard for environmental damage from that specified by the EL Directive for protected habitats and species (Riksskatteveret v Soghra Gharehveran Case C-441/99 (18 October 2001)).
iii) Therefore, in assessing environmental damage to the SSSI, NRW was wrong to apply the site integrity test.
iv) If the SSSI was so designated, then (a) the water in Llyn Padarn, (b) the SSSI as a whole "as a defined 'natural habitat'" (see paragraph 51(c) of Mr Wolfe's skeleton), and (c) the charr as a notified species for SSSI purposes, were each a "natural resource" under regulation 2(1).
v) By article 2(2) of the EL Directive (effectively incorporated into the 2009 Regulations, which do not otherwise define the term), "damage" means "a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly".
vi) Mr Wolfe submitted that different terms – "adverse change" and "measurable impairment" – have been used for a purpose. He accepts that "adverse change" connotes and inherently requires a worsening or deterioration. It was unclear to me whether he maintained in any form the submission that the environmental situation of one of the natural resources – the water, the SSSI and/or the charr – had "adversely changed" or worsened since April 2007. But, in any event, he submitted that "impairment" was conceptually wider, not being limited to the situation where there has been an adverse change or worsening, but rather including something which prevents or decelerates recovery from an already-damaged state.
vii) Mr Wolfe relied upon "measurable impairment" to two natural resource services.
viii) First, he submitted that the charr perform a natural resource service in the form of a function for the benefit of the habitat, so that a measurable impairment of the charr – in the sense of decelerated improvement in their environmental position, as a result of sewage discharges impacting on DO levels – is relevant environmental damage, if and insofar as it reduces that benefit (paragraph 53 of his skeleton argument). However, (a) this submission did not feature in Mr Wolfe's oral submissions; (b) it is counterintuitive to consider the charr as a natural resource service to its habitat, rather than vice versa; and (c) insofar as it is not a circular argument, in my view this submission does not add to the second submission he made, which was focused on water – and, in particular, the DO element of it – as a natural resource serving a beneficial function for the charr.
ix) Second – and with more vigour – Mr Wolfe submitted that the continuing discharges from the Llanberis STW limit (and, therefore, "impair") the DO which remains at less than "good" status; which in turn impairs (a) the water as a natural resource, by slowing down its progress to "good" environmental "status" and (b) the SSSI as a natural resource, by slowing down its progress to "favourable" conservation status as a natural habitat. By virtue of article 2(4)(a) of the EL Directive, the conservation status of a habitat is "favourable" only when the conservation status of its typical species is "favourable" as defined in article 2(4)(b). The deficient DO level hampers the charr from attaining "favourable" conservation status, and thus hampers the SSSI habitat from attaining such status.
x) Thus, focusing on the water – and, in particular, DO – Mr Wolfe submitted that there is, therefore, "damage" in the form of "measurable impairment of a natural resource service". That damage is environmental damage under article 2(1)(a) because it has "significant adverse effects on reaching… the favourable conservation status of [relevant] habitats or species". Here, again, Mr Wolfe submitted that the terminology used is important, "adverse effects" including, not simply worsening, but also a deceleration of improvement.
xi) In considering "environmental damage" under the EL Directive, the relevant question for NRW was, therefore, whether the impairment of the function which the water performs for the charr (i.e. the provision of DO) is potentially having significant adverse effects upon the progress of the SSSI (as, in effect, a protected habitat) or the charr (as, in effect, a protected species) towards "favourable" conservation status. NRW erred in not asking itself that question. Had it considered that question, NRW would (or, at least, may) have answered it positively, and made directions to Dwr Cymru in respect of preventative and remediation measures accordingly.
xii) If, contrary to his primary submission, the Llyn Padarn SSSI did not benefit from the same protection as a habitat protected under the Habitats Directive, Mr Wolfe submitted that, in paragraph 1(1) of Schedule 1 to the 2009 Regulations, with reference to protected habitats or species, damage is defined in terms that it "must be such that it has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat…", so that "significant adverse effect" there clearly included both deterioration of an environmental position but also deceleration of its improvement. "Adverse effect" in paragraph 4(2) must have the same connotation. That is reflected in paragraph A1.22 of the 2009 Regulations Joint Guidance which, under the heading "Recovery potential", states (in what Mr Wolfe described as a rare insight into the true interpretation of "damage"):"In some cases species or habitats on a site may already be in a poor condition or severely damaged and an emission, event or incident may further damage them or prevent them from recovering. Such cases should not automatically be excluded. Consideration should be given to the extent to which it affects their recovery potential as well as the timing, scale and severity of the effect." (emphasis added).
xiii) Therefore, in considering "environmental damage" under paragraph 4(2) of Schedule 1 to the 2009 Regulations, the relevant question for NRW was whether the impairment of the function which the water performs for the charr (i.e. the provision of DO) is potentially having an adverse effect on the coherence of the ecological function that enables the SSSI naturally to sustain charr levels, "adverse effect" here again including the prevention or deceleration of recovery. He submitted that, again, had it considered that question, NRW would (or, at least, may) have answered it positively, and made directions to Dwr Cymru in respect of preventative and remediation measures accordingly.
i) In the context of the EL Directive, is the Llyn Padarn SSSI a "habitat" such that the environmental damage test for protected habitats in the EL Directive applies to it?
ii) Does "damage" as defined in the EL Directive (and, by incorporation, the 2009 Regulations) include the prevention or deceleration of recovery from an existing, already-damaged environmental state; or is it restricted to a deterioration or worsening from an existing state?
iii) On the basis of the true construction of "damage" and the evidence before it, did NRW err in concluding that, other than the 2009 algal bloom, no environmental damage has been caused to the SSSI as a habitat from post-30 April 2007 discharges from Llanberis STW?
The Designation of SSSIs for the purposes of Article 2(3)(c) of the EL Directive
"The Welsh Ministers being designated for the purposes of section 2(2) of the European Communities Act 1972 make these Regulations under the powers conferred by that section as read with paragraph 1A of Schedule 2 to that Act.
The Regulations make provision for a purpose mentioned in section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and it appears to the Welsh Ministers that it is expedient for the Community instruments referred to in these Regulations to be construed as references to those instruments as amended from time to time."
"… at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision —
(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;…"
i) The first consultation paper on options for implementing the Directive (jointly published by both Governments in November 2006) expressly raised that as an option (paragraph 3.17, and Part B).
ii) After the consultation responses had been received, the Welsh Government reported to the House of Commons Environment, Food and Rural Affairs Committee, that:"Officials are considering an extension to the scope of the EL [Directive] implementing regulations, so that they protect the animals, plants and habitats within SSSIs for which those SSSIs have been designated, as well as EU protected habitats and species. This is in line with Defra's policy."
iii) That Committee reported in its 2006-7 Session Report that, in response to the consultation and the United Kingdom Minister's comments on that response:"The Minister failed to make a convincing case for not extending the scope of the EL [Directive] so that, as well as protecting EU-based biodiversity, it covers nationally-protected species and habitats too. We recommend that the [UK] Government should exercise its discretion to include nationally-protected species and habitats within the scope of the [EL Directive]. In so doing it would be able to trade off any criticism of 'gold-plating' against the gains arising from a better and more consistent implementation of the Directive."
iv) The signature submission to the relevant Welsh Minister (the Minister for Environment, Sustainability and Housing) by his officer, dated 8 April 2009, refers to the exercise of simply powers "to implement the Directive in Wales" (paragraph 11), which was reflected in the attached draft Explanatory Note, in the form finally adopted which I have already quoted.
"… [I]n the [2009 Regulations], the Welsh Ministers elected to make use of the option given by article 2(3)(c) to include within the scope of the domestic provisions transposing the [EL] Directive 'any habitat or species, not listed in [the Annexes to the Habitats and Wild Birds Directives] which the Member State designates for equivalent purposes as those laid down in these two Directives'. In other words, the inclusion, within the scope of the [Regulations] of damage to species protected in a SSSI…".
i) The preamble also refers to "the purposes of section 2(2)" of the 1972 Act, and also to "the powers conferred by that section" (both in the plural); and, in any event, does not refer to the particular purpose of section 2(2)(a).
ii) The reference to "a purpose" is expressly in the context of section 2(2), and paragraph 1A of schedule 2 to, the 1972 Act. Paragraph 1A provides:"Where –(a) subordinate legislation makes provision for a purpose mentioned in section 2(2) of this Act,(b) the legislation contains a reference to a [EU instrument] or any provision of a [EU instrument], and(c) it appears to the person making the legislation that it is necessary or expedient for the reference to be construed as a reference to that instrument or that provision as amended from time to timethe subordinate legislation may make express provision to that effect."Mr Gordon submitted that the passage in the preamble relied upon by Mr Wolfe had simply been taken from paragraph 1A(1)(a), to mark that the pre-condition of the exercise of that power had been satisfied.
I accept that those submissions have some merit; but, as I have indicated, in my respectful view, not that much force. Nor do I consider that the Explanatory Note – which is, at best, a mere summary of the main effect of the instrument, which cannot override the words of the instrument itself – to be of any great help. In my judgment, we need to look elsewhere for assistance.
i) Mr Wolfe submitted that the real question is "whether SSSIs are a 'natural habitat' within the meaning of the EL [Directive]" (see, e.g., paragraph 93 of his skeleton argument). However, whilst "natural resource" is defined in regulation 2(1) of the 2009 Regulations to include "species or habitats on [an SSSI] for which the site has been notified…", "natural habitat" is specifically defined in that same regulation as being restricted to habitats and species protected by the Habitats and Wild Birds Directives. It does not include SSSIs, or habitats or species thereon. Although Mr Wolfe appeared to pin his colours to the "natural habitats" mast, I accept that that in itself is not determinative. However, if, in making the 2009 Regulations, the Welsh Ministers had wished to designate SSSIs as habitats for equivalent purposes as those laid down in the Habitats Directive, they could – and, in my judgment, would – have simply included them in the definition of "natural habitat".
ii) Mr Wolfe laid weight on paragraph 4(1) of Schedule 1 to the 2009 Regulations. He submitted that a provision that made no distinction between damage to protected habitats and species on the one hand, and SSSI habitats and notified species on the other, was only consistent with a positive exercise of the article 2(3)(c) power which would have the effect of raising the level of protection for SSSIs as habitats to that of those protected under the two Directives. However, curious as the wording of regulation 4 may be, I do not consider that it assists Mr Wolfe on this issue of construction. Whatever is uncertain about regulation 4, it is clear from it that the Welsh Ministers intended to create a difference between the protection scheme for (i) SSSIs and (ii) protected habitats outside SSSIs. Whether the inclusion in the provisions relating to SSSIs of protected habitats and species that happen to fall into an SSSI is unlawful – which, submitted Mr Wolfe, it would be, as diminishing the European protection afforded to those species and habitat – is not here to the point. Whether that submission of Mr Wolfe's can be made good – and, I should say, that Mr Forsdick made shadow submissions which suggest that that point is at least arguable the other way (see footnote 9 in his skeleton argument) – is a matter that can be considered on another day, in another claim in which it might be relevant or even determinative. On that issue, I express no view.
iii) The materials produced by Mr Wolfe as to the consultation process etc are, at best, indeterminative. For example, although I accept that the House of Commons Select Committee made a contrary recommendation to which I have already referred, in the first consultation paper each Government identified its preferred option in respect of the article 2(3)(c) power as not to exercise it, but to "implement the EL [Directive] so that 'protected species and natural habitats' only includes EC protected species and habitats" (see page 55). As I have described, "natural habitat" is so defined in the 2009 Regulations. None of the documents to which I was referred by Mr Wolfe points firmly to the Welsh Ministers opting to designate all Wales SSSIs as "natural habitats" or equivalent for Habitats Directive purposes.
iv) Indeed, some of the documents appear to be strongly against the proposition that Mr Wolfe seeks to make good. For example, in paragraph 4.4. of the signature submission dated 8 April 2009 (see paragraph 119(iv) above), in speaking of the relevant domestic legislation (including the 1981 Act), the author told the Minister:"Legislation to protect and require remediation for damage to the environment already exists in the UK. In Wales, this legislation includes the Water Resources Act 1991, Part IIA of the Environmental Protection Act 1990, [the 1981 Act] and the Environment Permitting (England and Wales) Regulations 2007. In some respects, this legislation already fulfilled the policy requirements of the Directive. For example, operators who cause damage can be required to take steps to remediate that damage. Having carefully considered the options, the Assembly Government decided to make separate regulations which will supplement the existing legislation.It was considered inappropriate to 'gold plate' the Directive by extending all its requirements (for example, complementary and compensatory remediation) to all damage covered by existing legislation, some of which is well below the thresholds in the Directive. However, the Assembly Government was also reluctant to lose the protection provided by existing legislation which is not provided by the Directive, again because of damage thresholds. A consolidation of the two regimes was therefore not appropriate. Implementation by way of amendment to existing legislation would have been difficult to understand, and would not have fully transposed the Directive without freestanding regulations as well."That was authored very shortly before the 2009 Regulations were considered, and the Regulations appear to have been approved on that basis by the relevant Welsh Minister. It clearly envisages distinct regimes for SSSIs, and protected habitats. It does nothing to support the proposition that, in signing off the 2009 Regulations, the Welsh Ministers were intending to make a determination that all SSSIs in Wales should be designated as protected "natural habitats" for purposes equivalent to those laid down in the Habitats Directive. Indeed, it appears inconsistent with such a determination.
v) NRW's response to the letter before claim does not substantively assist Mr Wolfe's argument. That letter went on to say that, because the inclusion of the SSSIs was voluntary, the method by which they were protected was a matter for the Welsh Ministers' discretion. Having taken further advice, NRW does not stand by that legal analysis as to why there are distinct regimes within the 2009 Regulations for SSSIs and protected habitats/species; but supports the Welsh Ministers' analysis that, in including SSSIs in the 2009 Regulations, they were not exercising their powers under article 2(3)(c), but under section 2(2)(b) of the European Communities Act 1972.
"Damage" as defined in the EL Directive
"«dommages»; une modification négative measurable d'une resource naturelle ou une détérioration mesurable d'un service lié a des resources naturelles, qui peut survenir de maničre directe ou indirecte."
Mr Gordon's simple point was that, even without a translation, "une modification négative" (of a natural resource) clearly imports a worsening; as does "détérioration" (of a natural resource service) – and so, in the French version, the need for a worsening in respect of both natural resources and natural resource services is clear. The other translations he produced, he said, made the same point.
"The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria in Annex I…".
Annex I again makes clear that "baseline condition" is the environmental condition immediately prior to the deterioration in that condition caused by the relevant operator's activity. Although article 2(1)(a) itself refers to "significant adverse effects on reaching or maintaining the favourable conservation status", Annex I states that:
"The significance of damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data."
Those data are said to include:
"… the species' or habitat's capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition."
This therefore emphasises again that the "baseline condition" is the condition immediately before the deterioration caused by the operator's activity; and excludes the possibility that "damage" includes the concept of a deceleration of improvement. In any event, as Mr Wolfe accepted, "environmental damage" is clearly a subset of "damage"; and, for the reasons I have given, I am confident that "damage" excludes mere prevention or deceleration of improvement.
The NRW Decision on Environmental Damage to the SSSI
"Increased levels of nutrients in the water cause higher levels of algae including, but not limited to, overt "blooms". When those algae die, they fall to the bottom of the lake, where they decay. That decomposition uses up DO, the levels of which consequently decrease, particularly in the hypolimnion, the lowest part of the lake which is not affected by thermal movements in the summer. In the summer, the charr tend to occupy the hypolimnion. As a result of the reduced DO, the charr are adversely affected."
The levels of nutrients (i.e. TP) were increased as a result of discharges from the Llanberis STW. There was no evidence that there has been significant discharge of phosphorous into Llyn Padarn from any other source.
i) The 2010 Direction set the threshold level of "good" status for TP in water at 10µg/l.
ii) That level is set under table 1.2.2 in Annex V of the WF Directive, which requires that the TP level is found to be "good" status only where the concentrations of TP in the water are such "as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements", including of course the values specified for phytoplankton (see paragraphs 50-1 above). In other words, the level for "good" status for TP in the 2010 Directions has been set to ensure that the acceleration of algae growth upon which Mr Wolfe's causal mechanism relies does not happen.
iii) As I have described (see paragraph 23 above), save for 2009 – the year of the algal bloom, when the mean annual TP level in the lake rose to 13µg/l – since at least 2006, the level has been "good", i.e. below 10µg/l; and, since 2009, it has been at or below 8µg/l. Therefore, save for the increase in TP levels which caused the algal bloom in 2009 (which was accepted as "environmental damage" in the 2014 decision document), since 2007 TP has been at a level which, as a result of the category definition, must have been assessed to be below that required to prompt the acceleration of algal growth to such a level that it would have an effect on the DO level or on any other relevant environmental factors. That assessment has not been challenged, nor properly could it be.
The Claimant is therefore unable to prove the (sole) causal mechanism upon which it relies; and, indeed, the sole mechanism that can be sensibly postulated.
i) Other than that which caused the 2009 algal bloom, the TP level (a) had not worsened and (b) had had no demonstrable effect on the charr habitat (see paragraph 147 of the 2014 decision document).
ii) There is no threat of imminent environmental damage occurring as a result of TP enrichment (i.e. TP levels) (paragraphs 51 and 370).
iii) There was no evidence of a decline in DO levels since April 2007 (paragraph 160).
iv) The levels of DO have not been such as to exclude charr from the hypolimnion (paragraph 144).
v) There was insufficient evidence of any demonstrable change in charr habitat volume (paragraph 145).
vi) No other biological and physicochemical elements used in the WF Directive classification had (a) worsened or (b) been less than "good" in ecological potential/status.
vii) There had been no demonstrable impact from the activity of Dwr Cymru on charr habitat (paragraph 146).
viii) There was no evidence of a decline in charr population in Llyn Padarn (paragraph 163). In any event, Ground 2 of the judicial review is not being pursued; and so that there is no challenge to NRW's finding that there is no clearly identifiable statistical decline in the charr population since 2007.
None of these findings is challenged. Consequently, if (as I have found) "environmental damage" is restricted to a worsening of the environmental situation, Mr Forsdick submitted that the Claimant's claim must fail on its facts.
"[T]he biological elements used in the WF [Directive] classification have returned to 'good' or 'high' status, although the [DO] physicochemical element of classification remains 'less than good' thus preventing the WF [Directive] status of the lake reaching 'good'. As discussed in this section the combination of continuing nutrient inputs into the lake with historic sediment loading would appear to be the factors limiting this element. Evidence suggests that the impact from historic sediments produced by eutrophication can take many years to return a lake into good DO status despite other trophic indices such as TP being good".
See also paragraph 371 to the same effect.
"[V]ery low oxygen levels in the deeper cooler waters will still impose a restriction in the area of preferred habitat suitable for these fish… The size of the available habitat to Arctic charr was particularly reduced during the month of September 2013…" (paragraphs 138 and 141 of the 2014 decision document)."
i) The decision document proceeded on the basis that "whilst the [TP] levels themselves are not considered to affect the charr adversely, they have an indirect effect in that they have the potential to affect the habitat by causing [an] algal bloom…" (paragraph 160).
ii) Other than the increase in TP which caused the 2009 algal bloom – which, the decision document found, resulted from discharges from Llanberis STW, a liability notice being issued in respect of that – TP levels have been and are of "good" status, and so, by definition, the concentrations of TP in the Llyn Padarn waters are such "as to ensure the functioning of the ecosystem and the achievement of the values specified above for the biological quality elements". Furthermore, the decision document concluded that there is no threat of imminent environmental damage occurring as a result of TP levels.
iii) The decision document proceeds on the basis that the mechanism relied upon by the Claimant as the sole mechanism for environmental damage in this case (i.e. increased TP levels causing accelerated algal growth, which in turn causes reduced DO as a result of lake floor decomposition) is, indeed, the only relevant mechanism that is potentially at work (see paragraph 160). But, in any event, although the DO level is less than "good" and there is evidence that charr generally prefer well-oxygenated water, there appears to me to be no specific evidence that the lower levels of DO have, in this case, led to any slowing of the return of the charr to acceptable environmental status by (e.g.) the lack of DO in the hypolimnion restricting their summer habitat.
iv) The evidence appears to be that a significant proportion of charr that have been introduced to the lake as parr or fry have matured to adult fish, with the result that the adult population is now increasing.
v) There is no evidence that the increase in phosphorous content of the water as a result of the STW discharges is having any adverse effect on the charr population; and, in an unchallenged finding, NRW concluded that "there has been no demonstrable impact from the activity of an operator [i.e. Dwr Cymru] on charr habitat in the [Llyn Padarn] SSSI since 30 April 2007" (paragraph 146).
Ground 1: Conclusion
Ground 3: "Environmental Damage" in the context of the Water Body
Ground 6: Measures
"[A]ny measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage"
"(1) Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventative measures.
(2) Member States shall provide that, where appropriate, and in any case whenever an imminent threat of environmental damage is not dispelled despite the preventative measures taken by the operators, operators are to inform the competent authority of all relevant aspects of the situation, as soon as possible.
(3) The competent authority may, at any time:
(a) require the operator to provide information on any imminent threat of environmental damage or in suspected cases of such imminent threat;
(b) require the operator to take the necessary preventative measures;
(c) give instructions to the operator to be followed on the necessary preventative measures to be taken; or
(d) itself take the necessary preventative measures.
(4) The competent authority shall require the preventative measures are taken by the operator. If the operator fails to comply with the obligations laid down in paragraph 1 or 3(b) or (c), cannot be identified or is not required to bear the costs under this Directive, the competent authority may take these measures itself."
"(1) An operator of an activity that causes an imminent threat of environmental damage, or an imminent threat of damage in relation to which there are reasonable grounds to believe will become environmental damage, must immediately –
(a) take all practicable steps to prevent the damage; and
(b) (unless the threat has been eliminated) notify all relevant details to the enforcing authority appearing to be the appropriate one.
(2) The enforcing authority may serve a notice on that operator that –
(a) describes the threat;
(b) specifies the measures required to prevent the damage; and
(c) requires the operator to take those measures, or measures at least equivalent to them, within the period specified in the notice.
(3) Failure to comply with (1) or a notice served under (2) is an offence."
i) Article 5(4) does not oblige the competent authority to require preventative measures to be taken by the operator: it obliges the authority to require "the preventative measures" to be taken. That is clearly a reference to "the necessary preventative measures" referred to in article 5(3), which the operator is bound to take under article 5(1) and which the competent authority may require the operator to take under article 5(3)(b) and (c).
ii) The construction proposed by Mr Wolfe would make the power in article 5(3)(b) otiose, because it would be swept up in the obligation to do the same thing in article 5(4).
iii) It may be unlikely in practice that an authority with responsibility for environmental matters will not require a polluting operator, who can afford to do so, to prevent or remedy damage it causes; but article 5(3)(d) makes clear that the authority may at any time "itself take the necessary measures" – no doubt recovering the costs thereof from the operator, if it can.
iv) Under the EL Directive, it is for the authority to identify what "the necessary preventative measures" might reasonably be; and, if it considers it appropriate, to notify the operator of what those measures are and that he must make them. Figure 4.1 of the 2009 Regulations Joint Guidance (upon which Mr Wolfe relied) does not suggest otherwise.
v) Regulation 13 of the 2009 Regulations requires the operator to take the measures notified by the authority as necessary, on pain of criminal sanctions.