Draft Legislative Reform (Epping Forest) Order 2011 - Regulatory Reform Committee Contents

4  Consultation

12. The MPS carried out a public consultation as part of the planning application process. This consultation ran from 25 August - 16 September 2010, and covered the overall proposals concerning the MBDC. A statement of community involvement comprised part of the planning application, and the Executive Summary has been annexed to the ED.[11] As part of the MPS consultation an email response was received from John Cryer MP, who represents the Leyton and Wanstead constituency. In his response he raised queries around the temporary nature of the MBDC, the location of the site and the consultation process. He has emphasised that the Order must be temporary, must set no precedent, and must undergo full Parliamentary scrutiny.[12]

13. The planning application was submitted to Redbridge Borough Council on 26 November 2010. A period of consultation ran from 2 - 23 December 2010, during which statutory consultees responded, representations were made by local residents, and petitions objecting to planning consent were presented. On 24 February 2011, the Council's Regulatory Committee unanimously approved planning consent subject to a number of conditions.[13]

14. The statutory consultation under section 13 of the LRRA, on the proposed use of a LRO was launched by means of a Written Ministerial Statement to the House of Commons on 16 September 2010.[14] The consultation paper was made available through the Home Office website and copies were sent to specific interest groups.[15] Additionally statutory bodies were consulted either directly, or through previous MPS discussions.[16] The consultation closed on 9 December 2010, a period of 12 weeks. The Department have explained that their consultation was focused principally on the LRO itself, and therefore it asked the following three specific questions:[17]

  • Given that the use of Wanstead Flats is essential to ensuring the safety and security of the 2012 Olympic and Paralympics do you agree that a Legislative Reform Order is the best way to amend the Epping Forest Act 1878 in order to allow a one-off, time specific temporary construction on a small part of Wanstead Flats?
  • Do you agree that specific provision which is time and purpose limited to the 2012 Games is the best of the three options set out on page 14-15 [of the Consultation Document: the use of a Compulsory Purchase Order, a permanent amendment to the 1878 Act, or a time-limited amendment to the 1878 Act]?
  • Do you agree that there are no costs to the private or third sector from this proposal?

The Consultation Document

15. The Consultation Document set out the background to the Government's proposals, explained why a LRO was required, set out the Department's view of how the proposal met the pre-conditions of the LRRA and provided the consultation questions reproduced in paragraph 17 above. A number of questions arose which might have been avoided had more attention been paid to the wording of the document.

16. The Consultation Document stated that "section 34 of the [Epping Forest] Act creates a criminal offence of making a new enclosure of land in the Forest without such enclosure being authorised by the Act".[18] It then states in Part 3: Legal Analysis that "removing the criminal offence in section 34 [...] is removing a burden (a criminal sanction) within the meaning of the [LRRA]".[19] It is on this basis, and a supplementary provision to enable the Corporation to grant permission for the construction of a MBDC, that the Department made its case that a LRO should be used.

17. The ED explains that during the course of the consultation it emerged that section 34 of the 1878 Act had lapsed.[20] Section 34 makes it a criminal offence if any person encloses land in Epping Forest "after the expiration of the present session of Parliament, and before the making of the final award of the arbitrator".[21] The consultation responses explain "[t]he offence therefore expired with the final award of the arbitrator. By the 1878 Act Sir Arthur Hobhouse (the arbitrator) had a maximum of 2 years to complete his work, but this was extended to 4 years by the Epping Forest Amendment Act 1880. Thus the offence lapsed on the statute book from some point in 1882. There is no other amendment of the 1878 Act extending the duration of s.34 and making it perpetual".[22]

18. The ED therefore asserts that the criminal offence relating to enclosure arises under byelaws made under section 36 of the 1878 Act. The Department goes on to explain why the initial error did not require further public consultation:

The Government's proposal for the use of the LRO remains the same: a temporary amendment to the 1878 Act to permit the MPS to proceed lawfully in building the deployment centre. The principles of how Epping Forest and Wanstead Flats should be protected in law remain the same, as do the practical issues and potential impacts for local people. The Government does not believe that consultees in general were disadvantaged by the point at issue, or that consultees would have responded differently or raised substantially different objections had the consultation focussed around, for example, section 36 rather than section 34 of the 1878 Act.[23]

19. A further issue to emerge from the consultation is that whilst it focused initially on the use of the LRO to remove a criminal sanction, the Government, after considering the responses, concluded that the LRO should also address the issue of an obstacle to efficiency. Again the Government is satisfied this does not change the substantive issues set out in the consultation process.[24]

20. Whilst it is unfortunate that the Consultation Document contained an avoidable error, we do not believe this should inhibit the progress of the draft Order. What needed to be consulted on under section 13 of the LRRA in this case is the proposal to utilise the area for the intended purpose, and the proposal to enclose part of Wanstead Flats and erect a MBDC on it was unaffected by which provision of the 1878 Act was in question.

Adequacy of consultation

21. A further feature of the consultation that caused comment, is whether the specific questions identified were broad enough to count as a real consultation. For example, there was no attempt to assess whether or not consultees were persuaded that Wanstead Flats should be used for the intended purpose at all. Rather than invite views on these matters, the Department seems to have taken for granted the MPS's assessment of what they needed, their criteria for choosing a location, and the conclusion that only one location is suitable. That, in effect, closes off an area for consideration.

22. Through written questions from us to the Department the process of site selection has become clearer.[25] The MPS began their assessment of sites in the North-East London area in October 2009, aided by CgMs consultants. The Government is content that the MPS carried out a full, objective and detailed site selection process using clear selection criteria. At this stage there was no local consultation. The Department says this was due to commercial sensitivity. In late 2009, the Wanstead Flats site was identified as "the only possible option".[26] There then followed a habitat survey on the site in December 2009 to ensure there was no potential adverse impact on the area directly, and that all environmental protection was provided.[27] As alternative sites did not meet the requirements of the operational plan it was considered unnecessary and a poor use of public money to conduct habitat reports on these. In June 2010, speculation regarding the proposal first appeared in the media and political stakeholders were first briefed. This was followed by the MPS consultation and Home Office LRO consultation. As part of the MPS consultation, certain alternative sites were proposed by local people and were considered against the selection criteria.[28]

23. A question posed in the Consultation Document includes the statement that Wanstead Flats is "essential to ensuring the safety and security of the [...] Games". We asked how the Department concluded that the site was "essential" rather than desirable or suitable, to which they responded:

A detailed site selection process concluded that Wanstead Flats was the only suitable location for such a centre. There were no feasible alternative sites that would have warranted consideration through the consultation process. While some consultees raised concerns in principle about alternative sites [...] any specific proposals for alternative sites were considered.[29]

We note that the word "essential" has not been used in the ED or the responses to questions, where words such as viable, feasible and suitable are used instead.

24. We additionally asked why the Department considered there had been statutory consultation complying with section 13 of the LRRA 2006, given that alternative sites and the criteria for choosing a location were closed off from comment. The Government explained that it was satisfied that Wanstead Flats was the only viable option based on the application of the site selection criteria. The Government therefore consulted on the best means to achieve the legislative change to allow, temporarily, for the construction of the MBDC on Wanstead Flats. The Department states:

Opening up the terms of the consultation to include discussions on alternative sites would potentially include many open spaces in London and those living and working near them. This would generate much nugatory discussion and alarm about sites which had already been determined to be less suitable than Wanstead. There is also a risk of moving the focus away from the firm proposal about the use of Wanstead Flats and misleading those likely to be most affected about the best avenues to raise objections. For these reasons the terms of the consultation were set carefully to facilitate discussion with those most affected.[30]

25. The fact that the Department has taken for granted the MPS's conclusion that Wanstead Flats is the only suitable location does no harm if there is legislation to state — in effect — if the police say they need X, the need for X has to be taken for granted, but we are not aware of such legislation. The London Olympic and Paralympic Games Act 2006 vests responsibility for planning for the Olympics in the Olympic Delivery Authority (ODA), and section 6 deals with security, but does not fulfil the above proposition:


(1) In exercising its functions the Olympic Delivery Authority shall have regard to the importance of ensuring—

(a) the safety of individuals participating in or attending London Olympic events, and

(b) the security of property.

(2) In particular, the Authority shall hold such consultations as it considers appropriate with—

(a) the Commissioner of Police of the Metropolis, and

(b) the chief constable for any area within which a London Olympic event is to take place.[31]

26. We accepted that the response did not of itself negate the legitimacy of the consultation, for we considered it likely that the MPS site selection criteria arose in the course of consultation with the ODA. We therefore asked in a follow up question to what extent the ODA, responsible under s.6 of the London Olympic and Paralympic Games Act 2006, accepted the assessment of the MPS that use of the particular location is essential for safety and security. The response stated, "The [...] ODA do not have any statutory responsibilities around the MDBC which is principally an operational matter for the police service".[32] It was explained that in the exercise of the ODA's functions relating to preparing for the Games, premises, facilities and transport, they have worked closely with the MPS, Home Office, Centre for Protection of National Infrastructure and other bodies. The ODA have additionally been kept informed of work on the MDBC. In light of the Committee's question, the Government asked the ODA specifically to comment. They have confirmed that they have no views on the proposal.

27. We believe that the wording contained in the Consultation Document is potentially deficient. The use of Wanstead Flats was stated as "essential", whereas it is more appropriately described as suitable or desirable. We believe that if Wanstead Flats were not used, the policing of the North-East Olympic Zone would still take place, but through the use of a MBDC that is less effective. We contend that the Department overstated the case for the preferred location at the outset of the consultation.

28. We conclude that the consultation process was poorly conceived. This has raised unnecessary worries among local residents and interested parties. The consultation took place nearly a year after Wanstead Flats was identified as the preferred site, it was limited to rule out comment on alternative sites, and it contained a factual error over the criminal sanction. These were all unfortunate lapses. They indicate a lack of thorough design and preparation by the Department. Furthermore, the fact that local residents were first informed about the proposals through speculation in the media took control of the consultation away from the Department and the MPS. This gave the unfortunate impression both that the process was a "done deal", and that a LRO was being used as the easiest way to reach the desired solution. The flawed process may well serve to taint the enjoyment of the Games for those local residents who opposed the proposal, and also add to the cynicism that much of the public have towards the choreography of high profile planning applications.

29. We consider the fact that the MPS are clear that they need the site for policing the Olympics is a persuasive, but not conclusive reason for the narrow form of consultation. The MPS have no statutory function in relation to the Olympics, nor do the Department's responses to questions indicate that the ODA have reached the same conclusion.

30. We further conclude that the Department has shown that direct responsibility for the MBDC lies with the MPS as a police operational matter. The site criteria used were formulated as part of this responsibility and assessment against these found that Wanstead Flats was the only site to meet all the criteria. Nonetheless, given the general nature of the consultation, we consider that it would have been more appropriate if the Consultation Document had taken this assessment as a starting assumption which the Department expected to adopt unless persuaded otherwise. As it stands, it is arguable whether or not the consultation was adequate.

Consultation responses[33]

31. The Department's consultation on the draft LRO generated 31 responses. Of these, 18 were against the proposal, eight were broadly supportive and five were ambivalent.[34] The Department has sought to address in the ED the main points to emerge from the consultation under the following headings.

  • Fear that the proposals would set a precedent for future development
    • The security requirements for the Games are wholly exceptional and constitute no precedent whatever for future development on Wanstead Flats. Additionally, it is not foreseen that there would be any circumstances in which something similar on Wanstead Flats would be required.
  • Lack of information as to alternative sites
    • The site evaluation criteria have been published as part of the planning application, and shows that no other site meets all the relevant criteria
  • Doubt as to whether the LRO would last 90 or 120 days
    • The MPS have confirmed the site is only required for 90 days, and this limitation is written into the draft LRO
  • Doubt that the £170,000 payment to the Conservators would be forthcoming, and would be used appropriately

The City of London Corporation has confirmed in public correspondence that the payment will be used to fund long-term lasting improvements to Epping Forest. This payment is additional to the cost of making good the site which will be borne separately by the MPS.[35]

The Department states in the ED that the consultation put forward a single, simple proposal, and the responses do not indicate that any changes to the substance of the proposal are required. They therefore conclude that consultation on wording of the draft LRO is not required.[36]

32. The ED addressed the main points emerging from the consultation in two bullet-pointed paragraphs. These grouped the issues into the four areas set out above, and did not address specific points. It was therefore necessary for us to ask the Department in a follow-up question whether the ED fully took into account all the concerns raised. Their response explained that specific issues were dealt with through direct correspondence with the consultee.[37]

33. There were two consultation responses which raised legal issues. The first asserted that "no purpose for the LRO within the meaning of s.1(2) of the 2006 Act is presented in the [consultation] document", and therefore any LRO would be illegal. The Department have explained that Part 3 of the Consultation Document refers to the purpose of the LRO, to "remove or reduce any burden, or overall burdens, resulting directly or indirectly for any person from any legislation". On page 12 of that document, the Government makes it clear that it considered removing the criminal offence which would attach to the enclosure of land was removing a burden within the meaning of the 2006 Act, and therefore they refute the assertion.[38]

34. A second response claimed that a LRO would not ensure the MPS could operate a MBDC because the Commoners of Epping Forest could exercise their common law right to abate a nuisance, and therefore a LRO would be disproportionate. The Government does not consider operation of the MBDC would amount to a nuisance. The provisions of the LRO are strictly limited in terms of the position, coverage area and duration of the Centre, and therefore this does not amount to being an unreasonable interference with the public's right to property, and is not disproportionate.[39]

35. In our view, the ED deals with the responses in a perfunctory manner. It would have been more helpful, transparent and open for the ED to have contained detailed information.

11   ED, Annex E Back

12   Ibid Back

13   See Annex, Q15 Back

14   HC Deb, 16 September 2010, col 62-3WS Back

15   ED, Annex C Back

16   See Annex, Q18 Back

17   ED, paragraph 3.1 Back

18   A consultation paper on the proposed use of a Legislative Reform Order to permit a temporary Police Muster, Briefing and Deployment Centre on Wanstead Flats to support the 2012 Olympic Games, 16 September 2010, p9 (Home Office) Back

19   Ibid. Back

20   ED, paragraph 3.2 Back

21   Epping Forest Act 1878, section 34 Back

22   Responses to a consultation paper on the proposed use of a Legislative Reform Order to permit a temporary Police Muster, Briefing and Deployment Centre on Wanstead Flats to support the 2012 Olympic Games, 20 January 2011, pp10-11 (Home Office) Back

23   ED, paragraph 3.4. Section 36 does not directly prohibit construction of the proposed MBDC. The direct prohibition is found in byelaw 3 of the Epping Forest Byelaws 1980, made under section 36. If the prohibition in the byelaw was removed, the MBDC could still not be constructed. This is because the Conservators have a duty, under section 7 of the 1878 Act, to keep the land unenclosed. Back

24   ED, paragraph 3.3 Back

25   Annex, Q5 and 7 Back

26   Annex, Q5 Back

27   http://www.met.police.uk/co/docs/WMBDC_Phase_1_Habitat_Report.pdf Back

28   The selection criteria are detailed in ED, Annex H - The need case and site selection decision process, Metropolitan Police Authority Back

29   Annex, Q11 Back

30   Annex, Q12 Back

31   London Olympic and Paralympic Games Act 2006, section 6 Back

32   Annex, Q17 Back

33   In formulating this Report we have taken into account two memoranda received by us after the draft Order had been laid. These are listed in the Appendix, see p29, and are available on the Committee's website. Back

34   ED, paragraph 3.5 Back

35   ED, paragraphs 3.6-3.8 Back

36   ED, paragraph 3.8 Back

37   Annex, Q4 Back

38   Annex, Q13 Back

39   Annex, Q14 Back

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Prepared 6 May 2011