Very serious cases of water pollution, land contamination and damage to biodiversity are classed as environmental damage, and dealt with through the Environmental Liability Regulations.

Most cases of pollution and damage will be covered by other legislation. For example, if you cause a less serious water pollution incident, you may be issued with a notice to remedy the pollution or be prosecuted.

The Environmental Liability Regulations require businesses to take action to prevent environmental damage and to clean up any damage that they cause, known as remediation.

If you carry out any of the strict liability activities listed in the regulations and you cause environmental damage, you will have to prevent further damage and/or remedy the damage even if you were not at fault or negligent; there are some exceptions. Strict liability activities include:

  • waste management operations needing a permit or registration - such as collecting, transporting, recovering and disposing of waste and hazardous waste
  • operating landfill sites
  • managing extractive mining waste
  • making discharges to surface water and groundwater that require an authorisation
  • abstracting and storing water in a way that requires a licence
  • activities involving dangerous substances, pesticides and biocides
  • transporting dangerous and polluting goods
  • activities involving genetically modified organisms
  • activities requiring a pollution prevention and control permit
  • importing and exporting waste
  • carbon capture and storage.

You are liable if your activity caused or is likely to cause environmental damage. You must prevent or remediate the damage. The regulations do not apply to any environmental damage that occurred before:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

Environmental damage to water

Pollution of the water environment is classed as environmental damage if it is serious enough to have a significant effect on the status of the water body in terms set by the European Union (EU) Water Framework Directive, eg changing the ecological status of surface water from good to moderate or poor, or causing a failure to improve status. You can find information on the EU Water Framework Directive definition of ecological status on the Europa website.

Europa: Water Framework Directive

If you pollute the water environment in a way which isn't serious enough to be classed as environmental damage you can still be prosecuted, under other regimes, if you:

  • cause harm to human health
  • damage natural ecosystems
  • interfere with drinking water, recreational activities and any other use of the water environment
  • cause pollution.

For more information, see our guideline: Preventing water pollution.

Environmental damage to land

Land contamination, e.g. contamination by fuels or other toxic chemicals, may be classed as environmental damage if there is a significant risk that it could cause harm to human health.

Environmental damage to biodiversity

Biodiversity damage is classed as environmental damage if it causes:

  • a significant harmful effect on the conservation status of an EU protected species - e.g. bats, freshwater pearl mussels - or natural habitat - e.g.┬áNatura 2000 sites
  • a harmful effect on the ecological structure and function of an area of special scientific interest, e.g. manure spreading on protected grassland (in Northern Ireland only).

You can find out if your activities take place in or near a protected area:

Exemptions from the Environmental Liability Regulations

The regulations do not apply to any environmental damage that occurred before:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

There are a number of other exemptions.

If you cause environmental damage that is exempt from the Environmental Liability Regulations you can still be prosecuted under other legislation.

Further information

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