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Court of Appeal refuses reference in a significant environmental case on the Environmental Liability Directive


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

The Court of Appeal has dismissed the Appellant’s appeal against Mr. Justice Hickinbottom’s judgment dismissing the Appellant’s application for judicial review in a significant environmental judicial review challenge relating to the Environmental Liability Directive (‘the Directive’).  Although directed to a decision of Natural Resources Wales, the challenge turned in part on whether or not the Welsh Ministers had correctly transposed the Directive into their domestic regulations.

The question at issue was the true meaning of ‘environmental damage’ in Article 2(2) of the Directive (which the claimants argued meant more than a deterioration of the aquatic environment). By the time of the appeal the Appellant submitted that the point was unclear and sought a reference to the CJEU. The Court of Appeal dismissed the appeal and refused to make a reference holding that it was clear that the Appellant’s construction of Article 2(2) was incorrect. The Court also rejected two other grounds of challenge.

The judgment appears here.

The Welsh Ministers who succeeded both below and in the Court of Appeal were represented by Richard Gordon QC instructed by the Welsh Ministers.