The following five letters give an example of the public consultation process from December 2010. It shows the outcome from a public consultation by Thames Water to Wandsworth residents in Putney Church to the establishment of the legal arguments from both sides, being Ofwat / EA / Defra and, initially, Justine Greening MP's technical sub-committee which eventually grew into BGIET.
Subject: Justine Greening MP – Thames Tunnel Working Group (1 of 5)
Justine Greening MP – Thames Tunnel Working Group
Justine has asked me to get in touch with the group to let you know she has arranged a Thames Tunnel Working Group to place on Thursday 18th October at the Ranelagh Sailing Club (The Embankment, Putney, London, SW15 1LB) starting at 19.30. Richard Aylard and Phil Stride from Thames Water will be attending and the meeting will be an opportunity to have an update from Thames Water on the latest plans as well as ask questions. If anyone has any specific questions they would like to raise with Thames Water please can you email them to myself and Justine by 10th October, and we will follow up with Thames Water before the meeting as usual.
Justine also wanted to highlight to residents the current Section 48 publicity period which gives a further chance to review updated construction proposals, ahead of application for Planning consent. This review period comes to an end on 5th October 2012. Further information can be found online at http://www.thamestunnelconsultation.co.uk/2012/07/13/finalised-thames-tideway-tunnel-plans-published/ and the documents relating to our local sites can be found here http://www.thamestunnelconsultation.co.uk/document-library/timeline-view/ .
On 20th October 2012 Graham Stevens wrote: (2 of 5)
Please thank Justine for giving us the opportunity to present the possibility of an alternative to the Thames Tunnel proposal. Sorry it got a bit chaotic, but it shows people care what will happen to them.
We will take up your offer to circulate our different approach to the CSO problem; showing it has none of the disruption on the scale a mega-project like the Tunnel causes. At the same time solving all the other main environmental problems of London; drought, floods, air pollution, with energy security as a bonus. This is why so many other european and world cities are choosing the Blue-Green route.
The Judgement of the European Court of Justice, C-301/10 of 18 October 2012, which Thames Water announced at the meeting finds the UK guilty on all counts, including not considering the best technical knowledge not entailing excessive cost in designing their tunnel, in breach of Annex1(A) to Council Directive 91/271/EEC of 21 May 1991.
Chair, Justine Greening's Thames Tunnel Working Group- Technical Subcommittee.
On 9th Nov 2012, at 10:59, firstname.lastname@example.org wrote: (3 of 5)
1. Your email of 20 October 2012, misinterpreted the recent judgement by the European Court of Justice in relation to the UK's implementation of the Urban Waste Water Treatment Directive.
2. It is correct to say that the UK Government lost the case, but incorrect to say that there was any finding that the UK Government had not considered best technical knowledge, not entailing excessive cost.
3. Paragraph 90 of the judgement states that in April 2007 the UK Government decided to carry out the works proposed by the independent Thames Tideway Strategic Study report of November 2005. This referenced in particular the construction of a new underground tunnel and noted that its "costs cannot be regarded as disproportionate, given that the United Kingdom has already taken the decision to implement them".
4. The judgment clearly increases the urgency of delivering the Thames Tideway Tunnel. It states that a member state "cannot secure dismissal of [an] action merely because the activities and works which will, in future, cure the failure to fulfil obligations are underway” (paragraph 91).
5. The Court accepted that works are underway and that, had those works been completed within the required timescale, it is considered that the Court would have dismissed the action against the UK.
6. The judgement does not address the issue of fining the UK for failing to satisfy certain of the Directive’s requirements. It would be for the Commission to determine whether it wants to bring a separate case, in respect of fines, against the UK. There is no doubt that the risk of such a case being brought will increase if there is significant delay in delivering the tunnel.
On 25th February 2013 Graham Stevens wrote: (4 of 5)
Now the Planning Act 2008 Guidance on the pre-application process, January 2013, has been published, perhaps it is time to answer your letter.
1. The ECJ Judgement found the UK guilty of non compliance with the Urban Waste Water Treatment Directive on all counts. It is true the court was persuaded by UK lawyers submitting that 'the United Kingdom decided to opt for the single 30 km tunnel’, but that was clearly misinforming the court as the UK has not decided until planning consent has been granted. Is it the Minister or London residents participating in your public consultation who decide?
2 'The Commission and the United Kingdom also disagree in relation to the significance that must be attributed to the concept of ‘best technical knowledge not entailing excessive costs’ (‘BTKNEEC’) which is prescribed in Annex I(A) to Directive 91/271. (Para 29)
3. As the pre-application process guidelines makes clear, for a project of this size and importance for Londoners, the UK is obliged to follow a demanding procedural process to comply with BTKNEEC in arriving at the best solution in consultation with all relevant parties.
4. During our 2 year participation in this consultation process, it has become clear to us, as Justine's Technical Subgroup and then as the Blue Green Independent Expert Team (BGIET), that this legal obligation has not been fulfilled.
5. The Judgement makes clear, in defining 'Environment', that 'The objective pursued by Directive 91/271 goes beyond the mere protection of aquatic ecosystems and seeks to conserve man, fauna, flora, soil, water, air and landscapes from any significant adverse effects of the accelerated growth of algae and higher forms of plant life that results from discharges of urban waste water.' (para 48)
6. As recent evidence shows and Thames Water knows, those technologies we have lumped together under 'Blue Green integrated utilities' are now potentially capable of providing London with health, clean air, water and waste treatment at the same time as stimulating local growth and decreasing local crime - see http://www.bluegreenuk.com. This surely provides a far better cost benefit for Londoners than the proposed Tunnel. As our experts agreed with you at our meeting on 2 August 2012, the problem is not a technical one, but one of political coordination of the 33 London Boroughs.
7. Since the Putney Church meeting of December 2010 where we discussed investigating potentially better solutions to Thames pollution than the Tunnel. It has subsequently become clearer through the meeting when our experts went through the Blue Green alternatives with Thames Water (August 2nd 2012) that, to be valid, the consultation process should compare the cost benefits of Tunnel and Blue Green solutions, developed equally to enable a fair and understandable choice by water bill payers.
8. The Judgement supports that approach; As the Court finds, at para 88, 'In order to establish whether, as the Commission submits in its complaint, the United Kingdom has failed to fulfil its obligations... the examination envisaged in paragraph 73 ('establish whether the United Kingdom has been able to demonstrate that the conditions for applying the concept of BTKNEEC were met.') should again be carried out.'
9. For compliance, when this exercise is carried out (para 62) 'the concept of BTKNEEC,... must,... be examined in the light of the objective of protecting the environment.' and '67... must be examined by weighing the best technology and the costs envisaged against the benefits that a more effective water collection or treatment system may provide.' This is the legal basis for the UK’s obligation to carry out an equally detailed study of the comparative benefits of a Blue Green solution to enable a democratic choice to be made.
10. We maintain that if this exercise is properly carried out Londoners will choose the solution which solves all their environmental problems of drought, flooding, energy, air and water pollution incrementally over time . All these may be addressed by integrating utility managment incrementally over time- Blue-Greening London.
11. From the ever increasing evidence from other countries faced with comparable problems, in particular from the Environmental Protection Agency in the USA, Blue Green can achieve compliance faster than the Tunnel (in 2023 at the earliest.) Hence Blue Green entails an incrementally less and less or cancelled risk of a fine. Blue Green starts cutting pollution from Day 1.
12. What is not mentioned in the Judgement, by limiting itself to 'not entailing excessive costs', is the economic potential of Blue Green to stimulate economic growth far greater than the Tunnel, as the performance report from Philadelphia shows (see Page 9 of this report), and as it has also done in Germany.
13. The acceptance of a tunnel solution in Para 90 and 20 is only stating Member States responsibility under Subsidiarity law to select and implement BTKNEEC through their own national procedures. EU only sets law, leaving the choice of compliance means to Member States - see paragraphs 90, 91 and 92.
14. Finally, due to UK delays from 1991, it is now impossible for the Tunnel solution to comply with EU Directives in time, only a Blue Green solution is capable of mitigating the huge fines about to be levied on the UK as a whole.
On 5th March 2013 Phile Stride (Thames Water) wrote: (5 of 5)
We have now submitted our application for development consent to the Planning Inspectorate. I appreciate the time you have taken to write to email and outline your views, however, at this stage in the process it would not be appropriate for me to respond to the points you raise. Should the application be formally accepted, all documents will be made available on the Planning Inspectorate website, and comments should be made directly to them at the appropriate time.
In view of the recent evidence showing the potentially massive opportunity to improve the quality of the London environment and ecosystems through Blue-Greening along the lines of successes seen in global cities, now is the time for a comprehensive study of the potential of Blue-Greening, in combination with traditional approaches, to provide a high value solution with multiple benefits and fully satisfy the EU Directives in the spirit as well as the letter of the Law.