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.
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.
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.
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. The
consultation paper was made available through the Home Office
website and copies were sent to specific interest groups.
Additionally statutory bodies were consulted either directly,
or through previous MPS discussions.
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:
- 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".
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]".
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.
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".
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".
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.
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.
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.
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".
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.
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.
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.
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.
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,
(b) the chief constable for any area within which
a London Olympic event is to take place.
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".
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
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.
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.
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
- 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
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.
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.
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.
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.
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.
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
11 ED, Annex E Back
See Annex, Q15 Back
HC Deb, 16 September 2010, col 62-3WS Back
ED, Annex C Back
See Annex, Q18 Back
ED, paragraph 3.1 Back
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
ED, paragraph 3.2 Back
Epping Forest Act 1878, section 34 Back
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
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
ED, paragraph 3.3 Back
Annex, Q5 and 7 Back
Annex, Q5 Back
The selection criteria are detailed in ED, Annex H - The need
case and site selection decision process, Metropolitan Police
Annex, Q11 Back
Annex, Q12 Back
London Olympic and Paralympic Games Act 2006, section 6 Back
Annex, Q17 Back
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
ED, paragraph 3.5 Back
ED, paragraphs 3.6-3.8 Back
ED, paragraph 3.8 Back
Annex, Q4 Back
Annex, Q13 Back
Annex, Q14 Back