Tag Archives: Environmental Law

Liability under the Environmental Liability Directive

The case of Seiont, Gwyrfai And Llyfni Anglers’ Society v Natural Resources Wales [2016] required the Court of Appeal to consider the meaning of the concepts of “damage” and “environmental damage” in Directive 2004/35/EC on environmental liability as it applies to the prevention and remedying of environmental damage (“the Environmental Liability Directive”).

The anglers said the Environmental Liability Directive imposed liability “not only for pollution that makes the existing environmental situation worse, but also for pollution, such as continuing emissions [whose effect] is to retard or prevent the natural recovery of the environment from damage previously inflicted upon it.”

The court said this was impossible to reconcile with the unmistakeable purpose of the Environmental Liability Directive, which embodied the “polluter pays” principle.

“…the obvious intent and effect of those provisions is to require an operator not to cause the condition of the environment to fall below the condition it would have been in at the time of, and but for, his action or failure to act – its “baseline condition”. They do not require the operator to go further, by taking steps to remedy pre-existent damage to the environment – whether damage to natural resources or damage to natural resource services – or by ensuring or securing the improvement of such natural resources or natural resource services from their “baseline condition”. They do not bite upon the acts or omissions of an operator the effect of which is merely to cause the environment not to improve or improve as fast as it otherwise would, or – as [the anglers’ barrister] said in argument – to slow its “potential” improvement.”

“…. the concept of “damage” in article 2(2) of the Environmental Liability Directive, … means a measurable deterioration in the existing state of the “natural resource” or the “natural resource service” in question. Both a measurable “adverse change” in a “natural resource” and a measurable “impairment” of a “natural resource service” involve a measurable deterioration to that “natural resource” or “natural resource service”, as the case may be, from its “baseline condition”, as defined in article 2(14). Where the “impairment of a natural resource service” is concerned, this concept of “damage” applies, through the definition of “natural resource services” in article 2(13), to any “impairment” to “the functions performed by a natural resource for the benefit of another natural resource or the public”. The concept of “environmental damage” in article 2(1), where it concerns “(a) damage to protected species and natural habitats …” and “(b) ‘water damage'”, imports and depends upon that concept of “damage”. This, I believe, is the only interpretation of the concepts of “damage” and “environmental damage” compatible with the other relevant provisions of the Environmental Liability Directive.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planners’ juxtaposition of waste transfer station and new housing allocation not unreasonable

In Corrie, R (on the application of) v Suffolk County Council & Ors [2014], Hopkins Homes objected to the County Council’s planning application for a waste transfer station (“WTS”).

The case strongly indicates the reluctance of courts to impinge on the freedom of planning decision takers to take what some might find counter intuitive decisions.

Hopkins Homes claimed that the facility would have a negative impact on the quality and character and amenity of an area to the south zoned for future residential development and stated that the establishment of the WTS at Rougham Hill, Bury St Edmunds would be completely incompatible with the proposed residential development on that site. The juxtaposition of the main entrance to the new development to the waste facility would affect the saleability and viability of the project. The proposed WTS would negatively impinge on the amenity of future occupiers through noise, air quality, visual amenity and traffic generation.

While the officer’s report of the Borough Council did not envisage that the existing household waste recycling centre (“HWRC”) would contribute negatively to the site, that did not take into account the larger WTS facility contemplated in the County Council’s planning application. It would not be compatible with a high quality, new neighbourhood. Moreover a statutory consultee, the Environment Agency, had pointed out to the Borough Council that the nuisance factors mentioned above were likely to be a source of complaints from residents.

The claimants said no reasonable planning authority could conclude that the development “would not prejudice the urban extension proposed in the St Edmundsbury Vision 2013 draft Development Plan Document” it being the case that another 1,250 homes would inevitably result in new dwellings being closer to the facility site than the existing dwellings; that the County Council had information from Hopkins Homes that the planning application would result in a sterilisation of at least part of the strategic housing site; and that the County Council had no information as to the environmental and amenity impacts on the occupiers of the dwellings proposed for the strategic housing site. Hence the planning permission was unlawful both for failure to take into account material considerations and for having arrived at a “Wednesbury” unreasonable conclusion on the material that had been taken into account.

The legal test applied by the High Court was whether the inquiry made by the Council was so inadequate that no rational planning authority could suppose that it had sufficient material available upon which to make its decision to grant planning permission.

Here it had not been irrational of the County Council not to undertake a formal assessment of the noise impact of the facility on the new development. Nor could the court find that it was irrational for the County Council to conclude that granting planning permission for the new waste facility would not prejudice the potential housing development when:

– the plans for the new housing were so very “broad brush” and it was not certain exactly where the new houses would be;

– there was no Master Plan and still no application for planning permission for the new housing development, albeit that Hopkins Homes anticipated submitting one by the end of the year;

– an official plan showed a proposed green barrier between the waste facility and the housing. There was to be some employment along with the housing. That might be located along the border with the facility, as paragraph 111 of the planning officer’s report had suggested;

– the waste facility was assessed as having no impact on the existing housing 200m away. There was no Master Plan to suggest that the new housing would be any closer than that existing housing to the green barrier. Also, on the other side of the proposed WTS was the already heavily used and noisy A14 trunk road; and

– it could not be said that the County Council had failed properly to have regard to planning policies. The officer’s report to the planning committee had expressly referred to Policy NE5 of the St Edmundsbury Replacement Local Plan 2016 and PPS10. Also, the officer’s report had referred to the urban extension i.e. the new housing, and the potential impact of the new waste facility on it.

In all those circumstances, the planning committee’s decision had not been irrational, nor could its planning judgment be challenged.

Other grounds for challenge were dismissed also and the application for judicial review dismissed.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.