Closing submission to Public Enquiry for the Ferry Hinksey Trust and OFEG

OXFORD FLOOD ALLEVIATION SCHEME CPO INQUIRY

Introduction

1. The Trustees of the Ferry Hinksey Trust (“the Trust”) and the Oxford Flood and Environment Group (“OFEG”) have shown through their evidence to this inquiry that there has been inadequate consideration given to alternatives to the CPO scheme. This is of fundamental importance.
2. The Trust & OFEG agree that flood alleviation works are needed in Oxford. Recent events reinforce this. But they need to be the right works.
3. It is for the EA to show that their proposals are the right works. They have not done so. In short, the Trust & OFEG have shown through their evidence to this inquiry that there has been inadequate consideration given to alternatives to the CPO scheme.
4. This is of fundamental importance, since it is for the EA to demonstrate that there is a compelling case in the public interest justifying the compulsory acquisition of land. It is a feature of this high threshold to justify compulsory acquisition of private land that proper consideration must be given to whether the purpose for which the acquiring authority is proposing to acquire the land could be achieved by any other means
5. This is not just to ensure that the Trust’s land is not taken absent it being shown that the necessary compelling case in the public interest is made out by the EA. There are also significant public interests in avoiding:
   • the expenditure of huge amounts of public money on the wrong scheme;
   • the significant environmental harm to Hinksey Meadow and environmental harms to the Trust 's land;
   • the significantly greater levels of construction traffic impacts (which would be lessened without a need to transport away all the land required to construct the proposed channel); and
   • the inevitable and avoidable changes to the landscape and current recreational use of the western floodplain.
6. As Mr Carpenter emphasised in answer to the Inspector’s questions, when one considers the proportionality of examining at least one other no-channel alternative to the same degree as the CPO scheme, and balancing the relatively minimal cost of doing so against the £24 million cost (at least) of constructing the proposed channel in the western floodplain, the obvious answer is quite simply that not enough has been done to interrogate alternatives.  

The guidance relating to the selection of options

5. The guidance relied upon by the EA, the FCERM-AG Guidance (6, “the Guidance”) sets out a process whereby scheme options are refined through the identification of a long-list of options, which are subsequently reduced to a short-list. That process, as Mr Harding agreed (XXn = in cross-examination), can involve combining and refining options to improve their outcomes (Guidance, §8.8). It was through this process of refining options that a no-channel alternative was capable of being identified, refined and properly assessed against the CPO Scheme.
6. This is not however what happened. None of the four no-channel potential alternatives assessed by Mr Carpenter in his evidence were identified as part of the scheme development process undertaken by the EA. That is, the no-channel potential options did not form part of the long-list or short-listing process, as the CPO scheme moved from outline appraisal (scheme outline case) to detailed appraisal (outline business case) and draft full business case.
7. Appendix Q (the Oxford FAS – Western Conveyance Channel Review, 29) came along after the OBC had been completed. As Mr Harding agreed, it was not an exercise which sought to refine and test the flood defences in this option. Appendix Q removed the channel from the CPO scheme design (in scenario A1, just in North Hinksey Meadow, and in scenario A2, between Seacourt Stream to Old Abingdon Road), and simply then assessed the effectiveness of these two scenarios without seeking to refine, adapt or introduce any other flood defence measures different to those designed for the CPO scheme.
8. The outputs of Appendix Q, in Mr Harding’s words, were purely economic. That is, they were outputs designed to assess the relative economic performance of the alternatives against the CPO scheme using the same inputs as the CPO scheme. The Appendix Q analysis was in this respect entirely self-serving. It was inevitable that its two alternative scenarios would perform less well as against the CPO Scheme in terms of flood alleviation. It can be reasonably anticipated that any flood defence scheme which has a component removed will perform less well.
9. This is all the more so when it is appreciated, as indeed the EA have sought to emphasise, that the CPO scheme has gone through a process of refinement to optimise each part of the scheme as against the other parts. It is a scheme that in other words needs to be looked at on the basis that each of its parts is designed in a way which works best with the other parts. That is just a matter of sensible design and engineering.
10. It must follow, as indeed Mr Carpenter’s evidence (XiC) explained, that in respect of the two no-channel scenarios examined in Appendix Q, there was no exploration of possible alterations, additions or combinations to improve either of these scenarios. On the basis of the Guidance, however, if either of the two no-channel scenarios examined in Appendix Q were identified in the long-list to short-list process, or indeed any other no-channel options, such optioneering would have been undertaken.
11. That is, there would have been examination of whether, among other matters, the flood defences optimised for the CPO Scheme could be altered, added to, or combined in order to achieve better flood alleviation outcomes. The effect of all this is to put the no-channel alternatives at a disadvantage. While the two scenarios considered in Appendix Q necessarily perform less well, the fundamental points is that the potential for there being a no-channel alternative is dismissed by the EA before any optioneering is even undertaken.

Failure to consider no-channel alternatives

12. What then are the reasons offered by the EA for not applying the Guidance to examine at least one other no-channel alternative to the same degree as the CPO scheme? It is said that it is either disproportionate to do so, or that it is not reasonable to do so (because it is reasonable on the EA’s case to discount a no-channel alternative without fully investigating whether it could achieve similar, or even better, flood alleviation).
13. So far as proportionality is concerned, Mr Harding agreed (XXn) that the direction in the Guidance about proportionality required consideration of the implications of any proposal (see the Guidance at §3.1.3(2), page 15), and that those implications in this matter necessarily include the compulsory acquisition of land. He further agreed that the compulsory acquisition of land – the compulsory taking of a person’s property rights – should be given substantial weight.
14. The proportionality assessment that was accordingly required was one which considered the allocation of some limited additional resources on the one hand (these being the resources of some further investigations / optioneering of options which do not (see further below) require the compulsory acquisition of land), as against the substantial weight given to the avoidance of compulsory acquisition of land on the other hand.
15. As Mr Carpenter explained in answer to the Inspector’s question, the cost of investigating these potential alternatives is a fraction of the £24 million that would be saved if they demonstrated that a channel (and its costs) were not required to deliver flood alleviation benefits in Oxford. Mr Carpenter’s further point was that, of course, these £24 million of costs for excavating the channel and moving and locating the displaced earth, could be well in excess of that figure.
16. There is a further and also significant point. Ms Formoy confirmed (XXn) that the EA did not in its economic analyses put a cost on (or monetise) the disbenefits of the CPO scheme relating to the damage to habitats (of principal concern here is of course Hinksey meadow, but there is also environmental harm to the Trust’s land), changes to landscape and current recreational use, and construction traffic impacts (which plainly will be much worse if there is a channel to be excavated). These impacts would, or at least are much more likely to, be entirely avoided by a no-channel alternative. Exactly because these matters were not monetised, any proportionality assessment should have factored in these matters as (significant) implications of the proposal.
17. A properly calibrated proportionality assessment should have decisively resulted in a conclusion that investigation of a properly optioneered no-channel option should have been undertaken.
18. So far as simply discounting a no-channel alternative is concerned, there are several reasons why that is a plainly unreasonable approach. First, the EA’s concerns about certainty and reliability in truth amounted not to an absolutist binary position that the CPO scheme is certain and reliable, and any no-channel option is uncertain and unreliable, but rather a position in which the EA judged the CPO scheme to be more certain and more reliable than the alternatives that have at this time been developed.
19. Mr Harding accepted (XXn) that he was not suggesting, for example, that the CPO scheme would be 100% certain and reliable. It must follow that the CPO scheme is in this sense also uncertain and unreliable. It is not promised to be infallible. Language is important here. In effect, the description of a no-channel alternative as “uncertain” should be understood as meaning “less certain than the CPO scheme”.
20. What is also important to again emphasise is that the no-channel alternatives reviewed in Mr Carpenter’s evidence are not put forward as fully worked-up alternative schemes. This is a point Mr Carpenter repeatedly emphasised (XXn). So the assessments of relative certainty and reliability have to be understood as comparing on the one hand something that has been refined, optimised and interrogated, compared to potential alternatives which have not been, and so which have unexplored opportunities to deliver similar benefits without the same disbenefits.
21. The fact that we are talking about relative assessments of certainty and reliability also necessarily begs the question of how such judgements about certainty and reliability are made. We say, in this regard, and on proper analysis, that the points on reliability and certainty overlap to a significant degree.
22. The CPO Scheme relies in higher flood events upon the inundation of the whole of the western floodplain. That is, the flood extent of the CPO Scheme is similar to that modelled for all the no-channel alternatives. This means that once the flood levels exceed both the primary and secondary channel, the CPO Scheme is relying upon the areas of the floodplain outside of these channels. As Mr Carpenter explained, therefore, floodplain flow conveyance is required to make the CPO scheme work outside of the two-stage channel, just as it is required to make a no-channel scheme work.
23. The EA’s flood model is considered fit-for-purpose for all flood events, including those that use the wider floodplain. Mr Carpenter’s evidence, therefore, was that if the flood model can predict adequate flow conveyance for the CPO scheme in the non-channel areas, then it would be able to do so for a no-channel alternative also. Mr Raynor’s evidence, it will be recalled, was that the flood model had gone through an exhaustive process of verification and calibration, had been reviewed by specialist experienced modellers at an independent consultancy company, and so can “effectively simulate flood events in Oxford” (proof, §9.11).
24. The differences in flood levels shown on the western floodplain between the CPO scheme and the potential (and, we emphasise, non-optimised) alternatives as shown on Table 4 of the EY report are typically 3 – 4 cm different. As Mr Carpenter explained, even bearing in mind the different flood event modelled by EY, the differences between flood levels (and extents) are small, and floodplain interventions are just as able to be undertaken if either the CPO scheme or one of the potential alternatives was in use.
25. Mr Carpenter properly accepted that the CPO scheme would allow the channel to be maintained and controlled by the EA. However:
    • As set out above, the CPO scheme also relies on the wider floodplain and the EA’s case is that they understand how flooding will operate on that wider floodplain, meaning that understanding could be applied to a no-channel alternative (which would continue to make use of existing watercourses);
    • In so far as the lack of a channel creates some higher level of risk of blockages in particular locations, it has to be remembered that the floodplain is up to 500m wide in places. It is important not to overstate the impact of a blockage or even several blockages across the floodplain, bearing in mind the EA’s confidence in its own flood model;
    • That flood model will have been based upon existing land practices. Those practices are capable of continuing in the future, including because as Mr Carpenter explained, landowners have no interest in increasing the flood risk on their land, meaning that there is every reason to believe that they will cooperate with the EA in the future in terms of best land management practice;
    • The EA’s case is that it will take positive steps to maintain the channel if the CPO scheme were to come forward. It is just as capable of taking positive steps to engage with land owners on best land management practice going forward. The ability to take such steps answers the EA’s assertion that it may need to acquire more land if there was a no-channel scheme;
    • Even on the basis of the EA’s case that there will be greater conveyance of floodwater over the western floodplain (though not greater than the pumped twin pipe potential alternative), on the basis that the flood extents remain the same, discounting the other no-channel alternatives without properly interrogating how flood depths and durations might be different and might be managed is not in the Trust & OFEG’s submission reasonable.
26. For all the above reasons, it simply cannot be said that the EA was right to summarily dismiss, as it did, the potential no-channel alternative canvassed in evidence before the inquiry without any proper investigation of how such potential alternatives might be optimised.
27. .Appropriate future investigations can take account of the recent flooding in Oxford, and can test both the CPO scheme and a properly optioneered alternative or alternatives against this latest event (be those alternatives one of those discussed in Mr Carpenter’s evidence, or raised by other parties to the inquiry). 

The potentially viable no-channel alternatives

 27  As we have explained, while the Trust & OFEG’s concerns led to the significant step of incurring the expense of obtaining modelling data, the resources of the Trust & OFEG are understandably limited. It is not possible for the Trust & OFEG, with their limited resources, to undertake the sort of refinement and optioneering work which has been done to the CPO scheme.

28. In any event, it is the EA’s job to demonstrate that there is a compelling case in the public interest for the acquisition of the Trust’s land, and as an aspect of that justification, that they have given proper consideration to whether the purpose for which they are proposing to compulsorily acquire land could be achieved by any other means.

27. While the Trust & OFEG’s case is that the potential alternatives discussed by Mr Carpenter are just that, i.e. potentials, the importance of not summarily dismissing these alternatives (nor for that matter the alternative advanced by OPT) is underscored by the modelling work by EY relied upon by Mr Carpenter. These results show that the lack of consideration given to potential alternatives is not just some theoretical objection. The modelling shows the potential for there to be similar beneficial effects from a no-channel scheme.
28. The modelling results presented by Mr Carpenter, as he explained, used the 1%AEP (2016) and not the 1% plus 11% used for the CPO scheme’s design. He properly accepted ( XXn) that what then was modelled in his evidence was a more frequent flood event. It remains the case, however, as Mr Carpenter explained, that the modelling results in his evidence allows a comparison to be drawn with the CPO scheme and the alternatives. Significantly, all the alternatives shown in the EY modelling show a reduction in flood extents compared to the baseline, and in places with alternative A2r (raised defences) show flood reductions compared to the CPO scheme (INQ/32).
29. The fundamental point that then arises so far as a no-channel alternative is concerned, is that the modelling that has been undertaken has either assumed that the same flood defences (aside from the channel) will be in place, or in the case of alternative A2r, that those same flood defences are in place but with their height extended vertically ("glass-walled), but not horizontally.
30. There is an inherent limitation in the potential alternatives analysed for this reason. The retained flood defences have been designed and optimised for the CPO scheme. There is an inherent bias if those same defences are used for another alternative without properly interrogating what defences are best for that alternative. The inquiry heard debate in XXn of Mr Carpenter and Mr Raynor regarding the scope to which the CPO scheme’s flood defences might be able to be amended, what potential limitations existed in respect of those amendments, and the potential effect of such amendments.
31. We say care is needed here. The Trust & OFEG do not purport to have fully worked-up alternatives, and have not investigated (as Mr Carpenter explained in XXn) whether there may for example be feasible engineering solutions which are capable of overcoming the limitations to the raising of certain flood defences (though Mr Carpenter considered this likely).
32. Mr Raynor agreed (XXn) that the same level of optimisation had not been carried out with any of the alternatives put forward by Trust & OFEG as had been carried out with the CPO Scheme. In ReXn he indicated that the design work for the CPO scheme should have explored whether the limitations of certain flood defences could have been overcome. But this does not answer whether it is technically feasible for such a solution to be developed.
33. That is, proper optioneering of a no-channel option, which does not rely upon a channel - but which also does not have the costs of such a channel - would be able to explore other engineering solutions that could result in additional or amended flood defences, including what might be described as other significant engineering solutions. We say “other significant engineering solutions” since the digging of a two-stage channel in the western floodplain is itself plainly a massive piece of work.
34. What Mr Carpenter’s evidence demonstrated was that the potential alternatives at the least warranted further investigation and optioneering, to see if additional or amended flood defences could be put in place with a no-channel alternative which could achieve the same or similar beneficial flood alleviation effects, without however the significant environmental cost of the CPO scheme, and the need for the compulsory acquisition of the Trust’s land.

Lack of engagement

37. The Trust & OFEG’s complaint about lack of engagement is connected to the above matters. That complaint (see Ms Murphy’s and Mr Durham’s evidence) is that the EA did not properly engage with the Trust & OFEG on how no-channel alternatives might be further developed. That is, despite invitation, the EA declined to explore how a no-channel alternative or alternatives could be optioneered in order for there to be a fully worked up no-channel alternative against which the CPO scheme was able to be compared.
38. The XXn of Ms Murphy and Mr Durham provided no satisfactory answer to this core complaint. There is no dispute that the EA undertook multiple consultation events. But what matters in this context is specific and detailed engagement about potential alternatives. This was not done, and represents a failure given also all the matters set out above as to the need to have investigated potential no-channel alternatives further.

Ecological, recreation and amenity impacts

39. As we set out in Opening, the CPO Scheme will cause irreversible harm to precious, extremely rare, and valued environments, which have unique ecological and biodiversity characteristics, and which bring significant recreational and amenity benefits to the local community. Key among these environments is the MG4a grassland in Hinksey Meadow, which has been described as among the finest examples of the surviving habitat in the County, and possibly the UK. The Trust’s land also has important ecological, amenity and other value in its own right.
40. Ms Burt agreed (XXn) that the western floodplain is an area of particular recreational and amenity importance to residents of West Oxford, and that it is highly valued to local residents for the amenity and related health and well-being effects that are provided by access and use of the floodplain. Necessarily, this enjoyment would be severely curtailed during the construction of the CPO scheme, and once constructed, the Trust & OFEG say that the lowered and cleared channel will damage the character of the area both through the loss of irreplaceable meadow bio-diversity and through loss of tree cover. The historic byways will be lost, the ability to enjoy circular works and roam across the meadows will be severely curtailed by the channel, and it will be nearly a generation (20 – 30 years) before the proposed trees could in theory be properly established. 
41. The depth of feeling about this issue was plainly apparent from Ms Murphy’s evidence. The richness and variety of the ecology of the meadows, the way in which the meadows are enjoyed for their ecological richness and great amenity value, and the importance of the accessibility of this wonderful space in close proximity to West Oxford, were all eloquently and passionately expressed by Ms Murphy.
42. These are important considerations in their own right, and for the reasons set out by OPT, which the Trust & OFEG adopt. They are also important since we say they should have borne on the EA’s decision-making regarding the exploration of no-channel alternatives, and whether or not it was proportionate / reasonable to undertake further investigations of such alternatives. For all the reasons set out above, we say such investigations should have been undertaken.

Conclusions

56. For all the reasons set out above, and advanced in evidence at the inquiry, the EA has failed to show that there is a compelling case in the public interest such as to justify the confirmation of the CPO.

57. The Inspector and the Secretary of State are urged to provide a clear statement to the EA that a scheme such as this quite simply cannot be used as a basis to acquire land and cause the significant environmental and other harms described at the inquiry, without it being shown that this is the right scheme.

58. We therefore ask the Inspector to recommend to the Secretary of State that this Order not be confirmed, and ask the Secretary of State not to confirm this Order. 26 January 2024 Andrew Byass Landmark Chambers

26 January 2024

Andrew Byass

Landmark Chambers

See also 

https://www.hwa.uk.com/projects/oxford-flood-alleviation-scheme-cpo-inquiry/

Under Closing Submissions