Riki Therivel evidence
The purpose of S19 of the Acquisition of Land Act 1981 is to ensure that people who currently use public open space (which I will shorten to ‘parks’) are not disadvantaged by the compulsory purchase of park land. So people who currently use a park should not be disadvantaged by its loss. The act requires exchange land to be provided for any park land taken by CPOs, and sets out two criteria for this: the exchange land should be 1. no less in area, and 2. equally advantageous.
There is no legal definition of advantageousness, but case law suggests that the distance that people have to travel to the exchange land is a consideration, also whether the exchange land is already in public use. The exchange land doesn’t have to be the same type of land as the park land taken, but it should provide a similar or better level of ‘advantageousness’. Other dimensions of advantageousness could include how safe and easy it is to access and use the exchange land; whether the exchange land would have characteristics, and allow for uses, that the current parkland has and that are particularly valued by its users; and whether the exchange land would be much more fragmented, and so harder to use, than the park land.
Madam inspector, you asked us to minimise the number of people presenting objections at this inquiry. My discussion is in four parts. First, I will summarise the Sec. 19 objections that are not represented at this inquiry. Second, I will make general points about the EA’s process of identifying and choosing exchange land. Third, I will present my objection to Jewson’s Field being used as exchange land. Finally, I would like to highlight a concern about what might be called “leftover islands of parkland”. Patricia Murphy will then discuss the exchange land for the other sites.
First, in terms of the Sec. 19 objections not represented at this inquiry
There were 23 timely objections. The 19 that are not represented today objected on the basis that the exchange land would not offer an equivalent level of advantageousness, that some of the exchange land is already in public use, and that the exchange land would not have the same level of biodiversity and attractive landscape. Now, S19 is about ‘advantageousness’ not biodiversity, but some people may visit park sites specifically because of the habitats they provide. For instance a fisherman would not find a nicely-mown field to be equally advantageous to a pond. People also objected to the lack of consultation, the short timescale for consultation, the old-fashioned nature of the consultation, and the (in their words) patronising dismissal of objections. More widely, they object to the lack of consideration of alternatives and the cost of the scheme.
An additional important objection arrived too late to be formally considered here, from Kennington Parish Council, who represent two of the five S19 sites: Kendall Copse and Kennington Ponds. BTW local residents call them ponds not pools. The parish council says that it was only made aware of the S19 issue on Thursday of last week, which confirms other objectors' points about problems of consultation. Patricia Murphy will be talking more about this.
Second, in terms of the process of identifying and choosing exchange land
Table 14 of .11 riteria forexchangeland Table 14 of CD2.11 sets out the criteria for assessing the suitability of exchange land for the five park sites. Mr. Thorne already stated during the main CPO inquiry that he himself has devised Table 14. These criteria are not a standard, approved approach that has been used elsewhere. There is no problem with that in principle but…
Table 14 does not include a key criterion for exchange land, a key component of ‘advantageousness’ identified in guidance and case law, namely whether the land is already used by the public for recreational purposes. Although it looks like this might be covered under the criterion ‘current use’ it isn’t. For instance, Mr. Thorne describes the current use of Jewson’s Field as ‘abandoned grazing land’. The guidance and case law are clear that land which is already used by the public for recreation cannot usually be used as exchange land, since this would reduce the amount of recreational land, and this would be disadvantageous to the persons concerned. This key concept is not reflected in Table 14.
Mr. Thorne has applied the ‘location’ criterion in Table 14 inconsistently, in different ways for different sites. For Kendall Copse and Kennington Ponds, he uses the distance from where people come, so from Kennington Village. For Grandpont, he uses the distance from where people come and the distance from where the park land would be taken. For Seacourt Nature Park, he uses the edge of the park, not where the park land would be taken or where people come from. Nowhere in the documentation does Mr. Thorne explain why he has done this. This inconsistent use of criteria seems unprofessional and open to bias.
Table 14 has no ‘red flags’ which eliminate sites that are clearly too small or clearly would not be equally advantageous, which are the two legal requirements for exchange land. So in theory, this could allow all options for a site to not meet legal requirements but still pass through the appraisal process.
Mr. Thorne has also confirmed that no member of the public was involved in identifying exchange land, assessing the exchange land options or choosing the preferred options, despite the fact that it is the public for which the exchange land should be ‘equally advantageous’.
So I have a whole series of concerns about how the option sites were identified, appraised and chosen.
Third, in terms of my objections to the EA using Jewson’s Field as exchange land for Seacourt Nature Park
Madam inspector, I was hoping to show you these things in more detail on site, but hopefully my video will give an idea of 1. the range of recreational activities that take place on Jewson’s Field, and 2. the fact that they are happening all over the field.
Video shown here
So now that we have revisited Jewson’s Field, I would like to rebut Mr. Thorne’s arguments for why Jewson’s Field is appropriate exchange land.
First, Mr. Thorne identified three options as possible exchange land for Seacourt Nature Park. Two of those – Hinksey Meadow and Jewson’s Field – should immediately have been eliminated from further consideration. Hinksey Meadow is so obviously wrong that it shouldn’t even need to be defended, but I’ll do that later in my presentation. And Jewson’s Field should have immediately been eliminated because it is too small, and because Mr. Thorne has known since 2016 that it is already in public recreational use. This really only leaves one of Mr. Thorne’s three original options as being reasonable, namely Bulstake Close. There are other sites nearby that Mr. Thorne could also have identified and appraised1, but he didn’t. I think that he should re-open his search to include these other sites. 1 E.g. land to the north of the P&R
Mr. Thorne then uses as distance criteria the distance from the edge of Seacourt Nature Park, whereas at the other sites he used, or also used, the distance from where the park’s users are coming from and the distance from where the parkland is being taken. He has given no explanation for why he has done this.
If Mr. Thorne had used his own criteria in the same way that he has applied them elsewhere, the entrance to Seacourt Nature Park on the Botley Road is actually closer to Bulstake Close than it is to Jewson’s Field: 412m v. 452m. This is according to DEFRA’s own GIS system. Bulstake Close would emerge as the preferred option.
Mr. Thorne agrees that at least one path goes through Jewson’s Field which local residents have been using for 20+ years. But he argues that people simply, and only, ‘cut through’ Jewson’s Field, and that ‘cutting through’ does not meet the ‘statutory definition’ of public recreation. Except that he already confirmed in November that there is no such statutory definition. Of course, people ‘cut through’ parks and fields and woodlands all the time, for instance when walking their dog through Seacourt Nature Park to reach Hinksey Meadow. Mr. Thorne’s own evidence, and ours, shows that most of the people who supposedly ‘cut through’ Jewson’s field are dog walkers. Walking the dog falls squarely under the heading of ‘recreational activity’, not under some kind of new non- recreational activity category – “to cut through”.
The video we have just seen, the site visit we went on, the aerial photos presented in Mr. Thorne’s own evidence, and multiple surveys show that Jewson’s field has been used for lots of other recreational activities.
This slide shows a survey that I carried out this last December, and again confirms this. People walk the dog, walk with friends or by themselves, take photos, pick berries, run, make videos, clear litter, feed birds, camp, drink, picnic, scythe and who knows what else in Jewson’s Field. These are all recreational activities. And survey after survey shows that they have been taking place for 20 or more years, to the point when they have become permissive access.
This map, which is at p.7 of my evidence, shows where some of these things have been taking place, both recently and over the past 20+ years. Walking is in yellow, camping in blue, blackberry picking in red, bird feeding in orange, photography in green. These activities cover most of the field, not just the main path. And the rest of the field provides an attractive setting for these activities, just as parts of Seacourt Nature Park provide a setting for people walking on its paths.
In his rebuttal to my evidence, Mr. Thorne suggests that Jewson’s Field does not afford ‘roughly equivalent’ recreational access to Seacourt Nature Park, and that I have not provided evidence for this. Mr. Thorne keeps finding new and creative ways to try justify the unjustifiable. My figure provides exactly the evidence that Mr. Thorne says I haven’t provided: it shows the types of activities carried out in Jewson’s Field and their locations. Mapping them in comparison against the land that would be taken at Seacourt Nature Park looks like this:
The orange lines are the paths through Seacourt Nature Park that would be affected by the S19 land take. The yellow lines are paths through the proposed exchange land. If anything, the proposed exchange land has been providing a wider range of recreational activities and a similar range of paths to Seacourt Nature Park, although admittedly it is used by fewer people.
Then Mr. Thorne argues that Jewson’s Field is fenced in, and could easily be fenced in again, preventing public access.
He started this years ago by suggesting that the only access to Jewson’s Field was essentially by squeezing through a little gap in a fence. After I pointed out that there is actually no fencing for 80m on the Seacourt Nature Park side of Jewson’s Field, Mr. Thorne managed to find two ancient mossy horizontal posts, one of which we saw in the video, and some barbed wire fencing. When stretched out, these cover 6.5m of the 80m western boundary of the site. 6.5m out of 80. Madam inspector, I’m assuming that you, like me, didn’t notice this fencing or, if you did, you did not find that it suggested a significant attempt to keep local residents out of the field.
Mr. Thorne has not commented on what is clearly an unlocked pedestrian gate on the other end of the field. Of course, any piece of land could be fenced in, but Jewson’s haven’t done so despite knowing that this inquiry was coming up. Jewson’s aren’t here today, objecting to my objection. Mr. Thorne admits that the main path through Jewson’s Field is in regular public use, and so needs to be removed from the area of land in Jewson’s Field that can be used as exchange land. Obviously that land would need to be provided elsewhere – presumably at Hinksey Meadow – and I can understand why Mr. Thorne would wish to minimise this. So Mr. Thorne has decided to apply a novel concept called “impact equivalent loss” to the path through Jewson’s Field. Now this only comes up in footnotes at Tables 15 and 33 of CD2.11 which is 346 pages long, and so might easily pass under the radar. It’s the bit highlighted in yellow in the slide.
The footnote states that the site area of Jewson’s Field, about 11,000m2, is “reduced to reflect impacted exchange land area”, meaning the main path through Jewson’s Field. The path is 125m long, we agree on this, and Mr. Thorne has assumed that the path is 0.6m wide, so slightly narrower than a typical door. So he says that the area covered by the main path through Jewson’s Field is 75m2. And then, with no justification or explanation, the footnote says “A 10% impact equivalent loss… so 7.5m2 has been notionally removed”. So Mr. Thorne is saying that the area of the path through Jewson’s field, times 10%, should be provided for elsewhere. Now, I have looked far and wide to see where the concept of ‘impact equivalent loss’ comes from, the idea that one can arbitrarily decide that a particular recreational area is actually worth only 10% of that area, and haven’t been able to. I think that Mr. Thorne has made it up to reduce the amount of Hinksey Meadow land that would also need to be taken.
Finally, despite all this, Mr. Thorne concedes that Jewson’s Field is too small, and so proposes to take 742m2 of Hinksey Meadow as exchange land to make up for the deficit. He doesn’t even try to argue this on its merits, simply saying that Hinksey Meadow is agricultural land “where there may be some enjoyment by the public through the walking of the permissive paths”.
Now, this is Hinksey Meadow. Describing this as some farmer’s field that is encroached on from time to time at the farmer’s discretion is risible. Hinksey Meadow is a Local Wildlife Site that is being managed for biodiversity and public recreation by annual mowing and subsequent grazing by cattle for a few weeks. It has had full public access since 1997. The Oxford Preservation Trust web page for Hinksey Meadow starts by talking about it being an open green space essential for our health and wellbeing, and discusses the number of fritillaries on the meadow. There are six public entrances to Hinksey Meadow, with either stiles or pedestrian gates. None is locked. Every part of the meadow is, and has been, extensively used by the public for 27 years. The Oxford Flood Alliance itself, this is the body that is promoting the proposed flood scheme, in a blog of August of last year, states that Hinksey Meadow is an example of encouraging environmental initiatives: “Public access to these meadows has increased greatly in recent years. The area today is a mosaic of habitats of varying character, quality, and ecological value”2. 2 https://oxfordfloodalliance.org.uk/2023/08/12/changing-face-of-hinksey-meadows/
Again, I haven’t been able to find any precedent in legislation, guidance or case law for what Mr. Thorne is proposing: taking bits of obviously-wrong land to make up for an inadequate area of (in this case also-wrong) exchange land.
4. Finally, I mentioned “leftover islands of parkland”
The CPOs would not only permanently remove parkland from public use, the land in pink on the slide, which the Environment Agency are proposing to provide exchange land for. If the EA was minded to fence in its land, then this would additionally cut off bits of parkland from public use, the blue bits circled in red. These little islands of parkland surrounded by EA land would be owned by Oxford City Council, nominally as parkland, but would not be usable as parkland because they would be fenced off.
This is even more the case with Kendall Copse, where about 2600m2, most of an acre, would be inaccessible to the public if the EA land was fenced:
I have been in touch with Oxford City Council who responded that: “The Council intends to enter into a complex transaction with the EA and although not shown on this specific plan [the ones on the slides], is retaining rights of access where necessary”. Rights of access for the owner are not necessarily equivalent to access for local residents.
Madam inspector, if the CPOs for Seacourt Nature Park and Kendall Copse were granted, I would encourage you to include a clause requiring the land at these areas to remain unfenced, or else for the islands of parkland to be compensated for by exchange land elsewhere. Otherwise this would result in a loss of parkland for its users, which would again be disadvantageous and contrary to the purpose of Sec. 19.
Conclusion
So, to summarise, Jewson’s Field should never have been identified as an exchange land option. It is too small. It has been used for a wide range of recreational activities for more than 20 years. Most of the field has been used, and the rest acts as a setting for these recreational activities. Land at an obviously unsuitable site, Hinksey Meadow, would be needed to shore up any lack of land at Jewson’s Field.
Perhaps more importantly, the process of choosing Jewson’s Field as exchange land was fundamentally flawed. The wrong criteria were applied, and applied inconsistently. Distances were measured incorrectly. A statutory definition was made up. A category of non-recreational use, cutting through, was made up. A way of reducing recreational land by 90% was made up. A fence was made up.
Madam inspector, I think that these errors are so many, so severe, so vexatious, that I would like to ask for costs for the time I have had to spend researching and refuting them. I find it really worrying that this flawed work is coming from a government body that is meant to be professional and neutral and work on the public’s behalf, and one that is proposing to impose such significant impacts on so many people. I think that it puts the rest of the EA’s evidence in doubt. Thank you. I am now passing over to Patricia Murphy to discuss the rest of the exchange land sites.
Cross examination of Michael Thorne
You state in your proof of evidence para. 14.24 that “A number of Environment Agency site visits and visitor surveys of the land have not provided evidence of physical use of the land that can be regarded as recreational use”. But would picking berries leave traces behind? Picking litter? Exercising the dog? Camping? So do you agree that a lack of physical evidence of recreational use during a limited number of site visits is not at inconsistent with actual, significant, widespread use of the field by the public?
If Jewson’s could so easily repair the fence, why haven’t they done so?