Environmental Liability Directive (2004/35/EC)

The Directive seeks to prevent and correct environmental damage to:

• habitats and species protected by European Community (EC) law;
• species or habitat on a site of special scientific interest;
• water resources; and
• land contamination which presents a threat to human health.

Key features

Scope

The Directive does not cover all types of damage to the environment. It only covers ‘environmental damage’ which is one or more of:

• damage to protected species and natural habitats or in a site of special scientific interest;
• damage to water; and
• land damage.

The Directive introduces two types of liability:

• fault-based liability for environmental damage to protected species and natural habitats from all other occupational activities; and
• strict liability for environmental damage, caused by a range of 'occupational activities' (described in Annex III of the Directive).

Reporting environmental damage

Operators have to take immediate steps to prevent damage or further damage and to notify the enforcing authority.

Role of enforcing authority

The authority must establish if it is ‘environmental damage’ and identify a responsible operator.

Existing liability regimes in the UK

A number of legal systems already exist in the United Kingdom which provide for the remediation of environmental damage. Remediation is the term used to cover the measures, or package of measures needed to restore the environment under these regimes. Action is taken by public authorities such as local authorities or the Environment Agency. They can require damage is put right by those responsible or put the damage right themselves and then recover the costs from those responsible.

The Regulations will add to existing environmental protection legislation. Current legislation includes:

• the Environmental Protection Act 1990;
• the Water Resources Act 1991;
• the Wildlife and Countryside Act 1981; and
• the Control of Major Accident Hazards Regulations 1999.

The above legislation still applies and where they impose additional obligations to these Regulations they will still need to be complied with.

Visit: Department for Environment Food and Rural Affairs (DEFRA) (external link)