Closing submission to Public Enquiry re Jewson’s field Riki Therivel

Closing submission to the Section 19 inquiry for the Oxford Flood Alleviation Scheme

Riki Therivel

26 January 2024

I have a PhD in strategic level environmental impact assessment. I am a visiting professor in impact assessment at two universities. I taught environmental impact assessment at Oxford Brookes University for 30 years. I have co-authored several books on impact assessment. I run an environmental consultancy that specialises in impact assessment. I was a Commissioner at the Infrastructure Planning Commission for two years.

1. Madam inspector, I assume that you have been under a lot of pressure to “get the flood scheme done”. I want to assure you that I, and indeed all the objectors I know, are in favour of most of the proposed scheme. However, whatever the flood scheme ends up being, it will be in place essentially permanently. It will affect Oxford for hundreds of years. It will impact on a historical landscape. It will affect a meadow that has been managed consistently for a thousand years. So we need the right flood scheme, not the one that can be ticked off the fastest. And that scheme has to be consistent with legislation, guidance, and legal precedent.

Jewson’s Field

2. I showed last week that the Section 19 (S19) component of the scheme, notably for Jewson’s Field, is inconsistent with these to a worrying extent. At this inquiry we are supposed to present evidence, facts. This is not what the EA’s land acquisition team, headed by Mr. Thorne, has been doing.

• The criteria that Mr. Thorne devised to compare site options do not cover whether the land is already used by the public, which is a key component of ‘advantageousness’ (S19/001, p.3; CD2.11 Table 14, pp. 27-28).
• Thorne used his own criteria inconsistently between sites (S19/001, p.3; e.g. CD2.11 Table 16, p.29 v. Table 18, p.32 under “location”).
• Distances were measured incorrectly (S19/5 p.3)[1].
• A statutory definition was made up (Thorne main inquiry evidence para. 14.27.3, p.74; ‘made up’ confirmed during Mr. Thorne clarification questions,16 Nov. 23).
• The concept of “impact equivalent loss” was made up (CD2.11, Tables 15 and 33, pp. 29 and 59; ‘made up’ confirmed during Mr. Thorne clarification questions, 19 Jan 24).
• Fencing was made up (Thorne main inquiry evidence, para. 14.27.2, p.74; S19/001, pp. 4-5).

3. All of these errors have acted to skew the EA’s analysis in favour of providing exchange land at Jewson’s Field rather than at a suitable site elsewhere.
4. Just to be clear, the test for exchange land is whether it meets the requirements of the Acquisition of Land Act 1981, not, as Mr. Turney was implying last week, whether it is the best available option. Jewson’s Field does not meet either of the act’s two criteria. First, much of the field has been used for a wide range of recreational activities for more than 20 years. For instance, Dr. Wogan-Browne (S19/010, p.2) explained what pleasure she gets from walking her dog around the field and seeing homeless people enjoying themselves on a homemade bench. And although sleeping there as a homeless person may not itself be ‘recreation’, certainly drinking, chatting and barbequeing is. And homeless people need greenfield recreation as much as the rest of us. The rest of Jewson’s Field acts as an attractive backdrop to these activities (Mr. Thorne (in Therivel XX, 19 Nov. 24) confirmed that open space land includes land that is not actively used by the public). The S19 guidance and case law are clear that land that is already extensively used for public recreation should not act as exchange land, as otherwise there would be a net loss of park land to the public, which would be disadvantageous to them (OX-002N-1a para. 80-81, p.31). That would be the case here.
5. And second, Jewson’s Field on its own would be too small, necessitating the use of obviously inappropriate land to get enough area (CD2.11 para. 7.5.4-75.7, pp. 33-34; OX-002N-1a para. 82, p.32; S19/001, pp. 5-6). I have found no example of this approach being proposed, much less permitted, anywhere else.
6. If the EA had done their homework, they would never have considered Jewson’s Field or Hinksey Meadow as exchange land.

Other exchange land sites

9. Patricia Murphy has highlighted problems with the other proposed exchange land sites.
10. The exchange land for Oatlands Recreation Ground would be an odd fragment of land, out of sight of the houses that back onto Oatlands Park, already biodiverse, next to a dangerous electrical compound and pylon, and accessible only by a narrow path (S19/008, pp. 3-6). It would be unsuitable for the people currently using Oatlands: children, their parents, the school, exercise classes (S19/008, pp. 3-6). It would be difficult for Oxford City Council to maintain it in usable condition as a playing area. It would also lose the potential for meadow restoration as outlined in the evidence of Catriona Bass and Dr King.
11. The residents of Kennington would lose two open space sites, with very different characters: a young community woodland and quiet shaded ponds. Kendall Copse was planted by local residents, who will thus have a particular attachment to it (S19/008, p.6). It would first be used as a construction site – you can imagine how heartbreaking that would be. It would then be broken up into fragments where it’s not clear that the remaining bits owned by Oxford City Council would actually remain accessible to the public (S19/005, pp.11-12, notably p.12 long blue strip of land at top right). Exchange land should be provided for any land that would be in Oxford City Council ownership but permanently fenced off, as otherwise the public would lose out on park land area.
12. Kennington Ponds is a priority habitat and, contrary to the University’s assertions (S19/018), it is used by local residents, albeit sporadically[2].
13. As exchange land for these two sites, Kennington residents would get park land at Egrove. There is nothing wrong with park land, but the land at Egrove would be less diverse, dominated by the busy A423, and would include a fragment around a bus stop that I can’t see anyone actually using (S19/5, p.12, bottom right by ‘drain’). It wouldn’t replace the biodiversity that local residents value, particularly at the ponds. And the EA has made no suggestion for how to carry over to Egrove the personal elements of Kendall Copse, for instance that some trees have been planted in memory of loved ones.
14. Finally, the land that the EA would take at Dean’s Ham may not be actively used by the public, or used only in ways that are not detectable on sporadic site visits. However that land is part of a wider park and wildlife corridor. It sets a context for other activities, and so should have exchange land provided for it, as the EA proposes to do but other parties are challenging. Mr. Thorne himself agreed (in XX by Stretton, 19 Jan 24), however, that the public would be unlikely to walk to, and in, the bit of proposed exchange land at Eastwyke Farm.

Public consultation

13. More widely, I am concerned about the severe lack of public consultation on the S19 CPOs. In its response to objections about this (S19/008, S19/010, S19/011, S19/015, S19/021, S19/021, S19/023), the EA describes what it did to post notices, list plot numbers, and refer people to websites, for precisely three weeks shortly before Christmas (S19/4 Sec. 4, pp. 5-7). It is difficult to imagine anyone who saw the notices or newspaper ads being able to easily decode what they were about. The EA also suggests that its consultation on the overall scheme acted as a partial proxy for a proper S19 consultation.
14. Although the EA may have followed the letter of the law, it clearly did not fulfil the aim of consultation – to consult local residents and interested parties. This can be seen by the fact that people living directly adjacent to where the Oatlands bund would go knew nothing about the bund or proposed exchange land for it; Kennington Parish Council only found out about the proposed exchange land for Kendall Copse and Kennington Ponds too late for their evidence to be included in the S19 inquiry; and the consultation process did not identify any of the five or more people who regularly visit Kennington Ponds[3]. Turney argued (during Therivel evidence, 19 Jan. 24) that the EA was simply the agent of the Dept. for Levelling Up, and that limitations with the S19 consultation should be taken up with that department. However, it is appalling that, in all the years that the EA has been so-called consulting on the scheme, it didn’t manage to discuss S19 exchange land with a key parish council that represents 4,000 people, or knock on the door of the people who would be living directly adjacent to the scheme.
15. Thorne himself admitted (at XX on 19 Jan 24) that the EA would not consider any alternative exchange land sites put forward by objectors, even though the EA’s counsel himself was asking for such alternatives last week (Turney XX of Darbyshire, Miles, Therivel and Murphy on 19 Jan 24). To me, this is a snapshot of what the S19 public consultation process has been like: it looks like consultation but it acts like the EA simply telling us what will happen.

Conclusions

16. Madam inspector, I have been pointing out problems with Jewson’s Field to the EA since 2016. My objections are not unexpected. So the list of ‘concerns’ that I raise here points at best to a lack of professionalism by the EA. It actually feels more like a systematic attempt to hammer home a S19 process towards a pre-determined answer, one that was reached eight years ago and now needs shoring up with increasingly outré arguments.
17. Shoring up an earlier decision, rather than revisiting it with an open mind as new evidence comes to light, also feels to me like the EA’s overall approach to the scheme. Many years ago the EA got set on one path – Jewson’s Field, a channel - and it has since then kept going on and on with it rather than stepping back to do a reality check. Is Jewson’s Field really the right exchange land for Seacourt Nature Park, given all the accumulated evidence against it? Is a flood scheme involving a channel really the best alternative in light of accumulated evidence about the sensitivity of the local environment, the channel’s severe impacts and very limited benefits, and other alternatives? Applying the Wednesdbury test to this context, would a reasonable person acting reasonably today come to the same conclusions as the EA?
18. I have spent weeks researching and refuting points made by a government body funded by all our taxes, a body that should be honest, professional and impartial. My colleagues have also spent huge amounts of time on this, supported by hundreds of donations and the 5294 people who have signed a petition to protect Hinksey Meadow[4]. We all care deeply about our local environment. We all want a flood scheme for Oxford, but this is the wrong one.
19. Madam inspector, we are all aware that, if you do not confirm the CPO, this will further delay flood alleviation in Oxford. But pressure to get something done is not a good reason to permit the wrong scheme. Delays to the scheme so far have been because of structural works on a bridge, new legal requirements, and the EA trying to push through a scheme that is too damaging and too expensive. If there was no channel, if proper exchange land was provided, I and many others wouldn’t be here.

Mr. Thorne and his team wield a lot of power – to take people’s land from them and change their lives - and I think the legislation, and court cases interpreting that legislation, rightly make them accountable for doing this properly. They haven’t done so

[1] Please note that this provides the correct distance to Bulstake, not 381m as in my S19 objection. I am able to update my evidence as further information comes to light!

[2] Evidence from 5 Kennington residents – Sylfest Muldal, Julie Furze, Rachel Locklin, Martin Cuddy, Paul Gamble - not received in time for the S19 inquiry. BBOWT have also confirmed that they carried out work at Kennington Ponds in 2012 and 2013.

[3] None of these provided timely evidence at the inquiry as they did not know about it in time.

[4] https://www.change.org/p/save-hinksey-meadows-from-the-destructive-channel-in-the-oxford-flood-alleviation-scheme