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


Annex: Response by the Home Office to written questions


Q 1  To what extent have previous large events in North East London required extraordinary policing? How have the Metropolitan Police Service (MPS) co-ordinated their operations under these circumstances?

The London 2012 Olympics is the largest peacetime safety and security event for which there is no precedent in UK policing. There have been no previous events of this scale in North East London.

The largest comparable event in London is the Notting Hill Carnival with some 6,000 officers deployed on the busiest day, mainly in one set geographic area. The use of a Muster, Briefing and Deployment Centre (MBDC) is a tried and tested process at this event for managing the briefing and feeding of this large number of officers providing efficiency, value for money and consistency of briefing.

The Games creates the unique challenge of managing a large number of officers from across the MPS and outside London to provide the numbers and skills for the security operation. In order to manage the three main Olympic zones the MPS will be requiring three MDBC sites, of which Wanstead will be the largest.

Q 2  Why has the Department decided to use a Legislative Reform Order (LRO) to achieve their aim? Was any consideration given to using primary legislation instead?

Full consideration was given to the use of primary legislation.

However this was dependent on an appropriate legislative vehicle being available to contain this provision which would achieve Royal Assent sufficiently in advance of the start of the 2012 Games. There was only Home Office legislative vehicle (the Police Reform and Social Responsibility Bill) which planned to have Royal Assent in time.

However, the flagship policy in this Bill, the creation of directly elected Police and Crime Commissioners, requires the Bill to achieve Royal Assent in time for all the necessary preparations for elections to be held in May 2012. Since this provision was most likely to make any public Bill hybrid - with the extra time that this would mean was required for the passage of the Bill- it was not desirable to try to include these provisions in a Home Office Bill. There did not appear to be any other appropriate legislative vehicle.

A Private Bill was considered, but this would have relied on the resources of a private sponsor rather than the Government to take forward, and may have struggled to obtain Parliamentary time.

Using an LRO to remove a burden which jeopardises the delivery of safe and secure Olympic and Paralympic Games was therefore the preferred option and in keeping with the purpose of the 2006 Act.

Q 3  The Open Spaces Society suggest the aim of the LRO may be achieved through section 36 (3) (c) of the London Olympic Games and Paralympic Games Act 2006. Was this considered?

The Home Office responded specifically to the Open Spaces Society's suggestion in the terms below, and the Society has not responded on this point:

'You also ask whether powers under s 36(3)(c) of the London Olympic Games and Paralympic Games Act 2006 might be used as an alternative to an LRO. Section 36 (3) refers specifically to the purchase of land, rather than any temporary use of the land. Page 13 of the consultation paper discusses non-legislative options, and discards the idea of purchase of the land as disproportionate given that the police requirements are only temporary. While not mentioned in the paper as such, the provisions of the 2006 Act would fall outside the scope of our proposals.'

Q 4  Does the Explanatory Document (ED) fully take into account all of the concerns raised by those who responded to the consultation document?

The Government has sought to respond fully to all of the main concerns raised during the consultation process.

The Explanatory Document sets out details of the Home Office consultation and summarises the concerns raised as follows:

  • the proposals setting a precedent that would open the way for future development of the area;
  • the MBDC remaining in the longer term;
  • lack of transparency and information over alternative sites;
  • ensuring £170,000 payment in lieu of rent benefits the local area in terms of facilities for children or environmental improvements.

The Document sets out the Government's responses to these concerns. It also deals with an additional issue which emerged: the fact that the criminal offence relating to enclosure of land on Epping Forest actually arises under byelaws made under section 36 of the Epping Forest Act 1878 rather than section 34 - as asserted in the consultation questions - which has lapsed. On this point, the government is satisfied that the validity of the consultation was not affected (see question 10).

The vast majority of the consultation responses fell into one of the areas outlined above. Some specific issues were also raised, for example the question of the potential use of the London Olympic Games and Paralympic Games Act 2006 raised by the Open Spaces Society (see question 3), which were dealt with through direct correspondence.

Q 5  Annex E to the ED explains that four key drivers determined the timing of the public consultation. Please set out a clear timetable showing the dates when decisions were finalised on each of the each four key drivers, and when each separate consultation (LRO, Met Police, planning application process) began and ended.

The four key drivers are so interlinked that rather than trying to separate them out, the Government considers that it would be more helpful to set out the timeline as a whole.

As noted below (see question 6) Wanstead Flats was identified as the only possible option in late 2009. The habitat survey that was undertaken did not suggest any particular obstacles with that site.

This was followed by discussions within Government about the most suitable legislative method (see question 2) and with the Corporation of the City of London, as the custodians of Epping Forest. The City of London Corporation's Epping Forest and City Commons Committee formally considered the initial proposal on 8th March 2010 and gave a favourable response.

Matters were delayed by purdah and the general election in May 2010. The issue was considered by the new Ministers shortly after the election and Home Office Ministers gave their consent to the Legislative Reform Order route in June 2010.

It then took a few weeks to prepare and print the necessary documents. The Government also decided to avoid launching the consultation in the height of the summer holiday season and when Parliament was not sitting. The Government consultation was therefore launched in September 2010.

In summary, the MPS consultation on the overall proposals ran from 25th August to 16th September 2010, though press statements and letters to local councillors and organisations were issued over June and July 2010.  Within this, the consultation centred on five public exhibitions at different locations within the Wanstead area, on 25th August, 4th September, 9th September, 11th September and 16th September.

The Home Office consultation on the proposed LRO ran from 16th September 2010 to 9th December 2010.

The Planning application was submitted to Redbridge Borough Council on 26th November 2010, consultation ran from 2nd December to 23rd December 2010, and the application was considered by their Regulatory Committee on 24th February 2011.

Q 6  The habitat report, web-linked in Annex A of the ED, page 20, is dated December 2009. The earliest date given for consultation in the ED is June 2010 (Annex E, page 29). Why was a habitat report on Wanstead Flats produced so far in advance of consultation? Were similar reports prepared for the alternative sites?

When the site selection process determined that Wanstead Flats was the best site for the MBDC it was recognised that the area was important to local people and groups, and that environmental protection would be a significant concern. The habitat survey was undertaken to ensure no impact on the area directly. The proximity of the proposed centre to a SSSI was taken into account and a margin built in to ensure its perimeter was located well away from this area. The site survey provided information on site impact. A meeting was organised specifically for local environmental/wildlife groups to address their specific concerns.

Similar reports were not conducted on other sites as these did not meet the requirements for the operational plan. To conduct habitat reports on these areas would have been unnecessary and would not have represented good use of public money.

Q 7  Annex H of the ED sets out the site selection process. When did CgMs Consulting begin their assessment of sites? Were local people given the opportunity to input into this review of alternative sites?

The assessment of sites in the North East London area began in October 2009. CgMs was commissioned by the MPS to help prepare the planning application. There was no local consultation at that stage due to issues around commercial sensitivity. However, alternative sites proposed by local people during the consultation process in 2010 were considered and reviewed against the set criteria.

Q 8  In the consultation responses, Save Wanstead Flats state, "it is our contention that the search for alternative sites was, at best, cursory and that having settled upon Wanstead Flats, the Metropolitan police have sought to mould its selection criteria to fit only one outcome. This decision is the only reason why a Legislative Reform Order is now under consideration". What is the Department's assessment of this statement?

The Government is content that the MPS carried out a full, objective and detailed site selection process. Twenty nine sites were initially examined using clear selection criteria: size suitability; direct access from an A road; and clear area not subject to topographical or natural features. Four areas met these requirements and were then further examined using nine detailed criteria:

  • Assurance of availability in 2012
  • Suitable to deploy horses
  • No natural hazards, e.g. risk of flooding
  • Secondary access
  • Heavy vehicle access
  • To have or be able to install secure boundary with access control
  • Limited impact on local activities and recreational use
  • Relationship to other land uses
  • 24/7 access

Only Wanstead Flats met all nine of these requirements.

A number of alternative sites proposed during the consultation were also examined as part of the selection process.

Q 9  Why did the Department decide not to wait until the end of the site selection process to consult on the LRO?

The site selection process had concluded that Wanstead Flats was the only viable option for the MBDC when the consultation process on the LRO began in September 2010.

Q 10  Paragraph 3.2 of the ED explains that an issue emerged during consultation that the criminal sanction arises under section 36 of the 1878 Act, not section 34. When did this issue first arise, and what factors were considered in deciding that further public consultation was not necessary?

It became apparent during the consultation, towards the end of September 2010, that the criminal sanction under section 34 of the 1878 Act had lapsed and that the sanction was now created by byelaws made under section 36 of the Act.

The Committee might like to be aware that the byelaws are available online at http://217.154.230.195/NR/rdonlyres/75920B02-E28A-45FD-8D40-94CAD0A25449/0/Byelawscancopy.pdf.

On balance, it was decided that this did not fundamentally affect the validity of the consultation. The specifics around which section of the Epping Forest Act 1878 created the criminal offence did not change the fact that the Government was proposing to remove that criminal offence and associated restrictions in the Act to enable the Met to use the area for their MBDC. On this basis, the Government did not consider that further public consultation was necessary.

Q 11  Paragraph 3.1 of the ED lists the 3 specific questions contained in the consultation document. The first question begins "Given that the use of Wanstead Flats is essential to ensuring the safety and security of the 2012 Olympic and Paralympics ...". How did the Department reach the conclusion that the site was 'essential' rather than desirable or suitable? Why did the consultation close off the issue of alternative sites from consideration?

The London 2012 Games will require one of the largest policing deployments in UK history, involving over 10,000 officers on peak days. It is vital that arrangements are made to for briefing and deploying this large number of officers. MBDCs are a tried and tested way of doing this and have been used for other large scale events such as the Notting Hill Carnival. 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 (see question 4) any specific proposals for alternative sites were considered (see questions 7 and 8).

Q 12  Given that alternative sites, and the criteria for choosing a location were closed off from comment in the consultation document, why does the Department consider that there has been statutory consultation complying with section 13 of the Legislative and Regulatory Reform Act 2006?

As noted above (see question 11) the Government was satisfied, on the basis of advice from the Metropolitan Police Service, both that an MBDC was operationally necessary and that, following the application of detailed site selection criteria, Wanstead Flats was the only viable option.

Accordingly, the Government consulted on the best means to achieve the legislative change which would allow, temporarily, for the construction of the MBDC on Wanstead Flats. Detailed steps were taken to ensure that those organisations and groups most likely to be directly affected by the proposals were informed of, and invited to participate, in the consultation. As noted above (see question 5), there were other opportunities for affected organisations and individuals to express a view.

Section 13 of the 2006 Act requires the Minister to consult those likely to be 'substantially affected by the proposals'. 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.

Q 13  A consultation response asserted at several points that the consultation is fundamentally flawed. It stated "no purpose for the LRO within the meaning of s.1(2) of the 2006 Act is presented in the [consultation] document", and then claims this renders any LRO illegal. What is the Department's assessment of this claim?

The introductory paragraphs to Part 3 of the consultation document refer to the purpose of the LRO within the meaning of section 1(2) of the 2006 Act which is to "remove or reduce any burden, or overall burdens resulting directly or indirectly for any person from any legislation". On page 12 of the document (under the heading "legal analysis") the Government made clear that it considered that removing the criminal offence which would attach to the enclosure of land was "removing a burden within the meaning of the 2006 Act". The Government therefore refutes the assertion that no purpose within section 1(2) of the 2006 Act was presented and equally refutes the assertion that the LRO is unlawful in any way.

Q 14  A consultation response asserted that a LRO would not assure the MPS that they would be able to operate a Muster, Briefing and Deployment Centre on Wanstead Flats. It states this is because the Commoners of Epping Forest can exercise their common law right to abate a nuisance at any time, and therefore the LRO would be disproportionate. What is the Department's assessment of this claim?

The Government does not consider that the operation of the MBDC on Wanstead Flats for a limited period of time will amount to a public nuisance such as can lead to an action by the Commoners of Epping Forest. A public nuisance must amount to an unreasonable interference with the public's right to property and the Government has ensured that the provisions in the LRO are strictly limited in terms of the place in which the Centre can be constructed, the time for which it can be enclosed and the maximum space which it can take up. The Government is therefore of the view that this is far from being an unreasonable interference with the public's right to property and is not disproportionate.

Q 15  Paragraph 1.1.16 of the ED states planning consent from the London Borough of Redbridge has been granted. Please outline any conditions placed on the planning consent.

Planning consent was grant by the Regulatory Committee of the London Borough of Redbridge on 24th February 2011. The following conditions were placed on the planning consent:

  • The development hereby permitted shall only be carried out and completed strictly in accordance with the submitted plans hereby approved.
  • No development or works relating to the Muster, Briefing and Deployment centre hereby approved shall commence on site before 23rd June 2012.
  • All structures and fencing associated with the Muster, Briefing and Deployment Centre hereby approved shall have been dismantled and removed from the site by 21st September 2012 and the restoration of the site to have commenced.
  • Prior to the commencement of the development hereby approved, a scheme for the restoration of the site shall have been produced by the applicants in consultation with the City of London Corporation, submitted to the Local Planning Authority and approved by the Local Planning Authority in writing. The scheme for the restoration of the site shall include proposed measures to restore any vegetation which has been adversely affected by the development and a timetable for the restoration of the site to its former use as open space.
  • The development hereby approved shall only take place in accordance with a programme of archaeological works as set out in a written scheme of investigation which is to be submitted to and approved in writing by the Local Planning Authority prior to the commencement of work. The archaeological works as approved shall only be carried out by a suitably qualified investigating body acceptable to the Local Planning Authority.
  • No goods shall be delivered to, nor loaded or unloaded at the site outside the following times: 0800-1800 Mondays - Fridays and 0800-1400 Saturdays and Sundays
  • No construction or dismantling activity shall take place at the site outside the following times: 0700-1900 Mondays-Fridays, 0800-1600 Saturdays and 1000-1600 Sundays
  • And no heavy machinery associated with construction or dismantling activity shall be used at the site outside of the following times: 0800-1800 Mondays-Fridays and 0800-1300 Saturdays
  • Before the development hereby permitted commences at the site, a scheme shall be submitted to and approved in writing by the Local Planning Authority describing the means by which construction activity at the site and construction traffic to and from the site shall be controlled. The scheme shall include measures for:

i)  construction traffic routes

ii)  booking systems

iii)  consolidated or re-timed trips

iv)  secure, off-street loading and drop off facilities

v)  using operators committed to best practice, demonstrated by membership of TfL's Freight Operator Recognition Scheme (FORS) or similar

The development shall be carried out and completed in accordance with the approved scheme.

  • Before the development hereby permitted commences at site, a scheme for the management of police traffic associated with the Muster, Briefing and Deployment centre shall be agreed between the applicants and Transport for London. The scheme shall be submitted to the Local Planning Authority and approved in writing prior to the commencement of development at the site.
  • Disposal of animal waste material: All horse dung and straw from the stables area within the site is to be removed from the site and properly disposed of.
  • Prior to the commencement of the development hereby approved, details of the location of and acoustic housing of proposed generators shall be submitted to and approved in writing by the Local Planning Authority. Details of reduction in noise achieved by acoustic housing shall also be submitted.
  • Any fuel storage tanks, WCs or other potentially polluting materials shall be placed on impermeable surfacing and surrounded by bunds.
  • Before the use hereby permitted commences at site, details of the proposed extraction systems to be installed on the site shall be submitted to and approved in writing by the Local Planning Authority. The measures as approved shall then be retained at the site in accordance with the approved drawings.
  • The Metropolitan Police Service has indicated that it is happy to accept all of these conditions.

Q 16  Paragraph 1.1.17of the ED states that the MPS will pay the City of London Corporation £170,000 for use of the land. Please explain how this sum was agreed?

The MPS will pay a rent for use of the land for the specified period during the London 2012 Games. The sum of £170,000 was reached in agreement with the City of London Corporation, who are the trustees of the land. It was based on independent valuations and assessments of the specific area by Corporation of London surveyors and MPS Surveyors.

This money will be used by the City Corporation to improve facilities. Part of the consultation process allows the local community to make specific suggestions as to what this might entail.

Q 17  Following your response to question 12, to what extent does the Olympic Delivery Authority, responsible under s.6 of the London Olympic and Paralympic Games Act 2006, accept the assessment of the Metropolitan Police Service that use of the particular location is essential for safety and security?

The Olympic Delivery Authority (ODA) do not have any statutory responsibilities around the MDBC which is principally an operational matter for the police service. Section 6 of the 2006 Act places a requirement on ODA to consider security in the exercise of its own functions. Those functions (according to Section 4 of the 2006 Act) relates to preparing for the Games, premises and facilities and transport.

In this case, there is no proposal to acquire land or build facilities on a permanent basis with which the Authority could provide assistance.  While facilities for the police and emergency services are being provided at the Olympic Park, one of the purposes of the MBDC (mentioned in the Need Case Site Selection and Decision Process document) was that site for the MBDC should be 'outside of a 1000 metre post-incident exclusion zone from the Olympic Park and its environs'.

In carrying out its functions under section 4 of the 2006 Act, the ODA has worked closely with the MPS, the Home Office, the Centre for Protection of National Infrastructure (CPNI) and other bodies to ensure a safe and secure London 2012 Olympic and Paralympic Games. This includes, for example, ensuring that facilities for the Games are designed and build to appropriate security standards.  The ODA have been kept informed of work on the MDBC, but in the light of the Committee's interest the Government have asked them specifically for their views and they have confirmed that they have no views on this proposals.

Q 18  Further to Annex C of the ED, which statutory bodies were consulted in compliance with the consultation duty in section 13(1)(b)? In particular do these include the Verderers of Epping Forest and Epping Forest and Commons Committee?

The Home Office is satisfied that the duty under section 13(1)(b) to consult with statutory bodies whose interests are affected by the proposed legislation has been discharged, either directly or through the Metropolitan Police Service discussions with the main bodies concerned.. The MPS secured agreement to the proposals in principle with the City of London Corporation as the statutory authority for Epping Forest, and the MPS and Home Office have maintained close contact with the Corporation over the course of this work. The City of London Corporation's Epping Forest and City Commons Committee formally considered the initial proposal on 8th March 2010 and had no objections. The Verderers of Epping Forest are represented on this Committee. The MPS have also consulted with the officers and political representatives from the London Boroughs of Redbridge, Newham and Waltham Forest, Transport for London, the Greater London Authority, the (then) Government Office for London (GOL), English Heritage, Natural England and the Environment Agency, as well as local Members of Parliament. The Home Office has also maintained contact with local authorities and MPs. No formal objections to the proposals were received from statutory consultees during last year's consultations.

Q 19  What inquiries has the Home Office made as to the rights of common that might subsist over Wanstead Flats and what was the outcome?

General provisions on Rights of Common are set out in the Law of Property Act 1925. This provides that the powers under section 193 of the Act (Rights of the Public over Common and Waste Land) are subject to any Act or scheme for the regulation of land.

For these purposes, the 1878 Act is an Act which regulates Epping Forest. Therefore to the extent that the 1925 Act provisions apply to Epping Forest, the 1925 Act provisions are subject to the 1878 Act. With the amendment proposed through the LRO, the 1878 Act will enable an enclosure to be temporarily put up on Wanstead Flats;   this means that the 1925 Act is subject to that provision. To the extent that the 1925 Act is not compatible with the 1878 Act, the 1878 Act, as the specific Act which regulates Epping Forest, will prevail.

Section 5 of the 1878 Act provides for certain rights of common to continue in relation to Epping Forest. These rights are the rights of common of pasture and of common of mast or pannange for swine. Under the proposed LRO, these rights would be subject to the new draft section 52A of the 1878 Act.

Section 33 of the 1878 Act also confers on the Conservators of Epping Forest the right to regulate the various rights of common over the Forest. For example section 33(1)(x) enables the Conservators to regulated the time and conditions during which the rights of common of mast or pannage of swine can be exercised and section 33(1)(xii) makes it clear that the rights of common in Epping Forest can be subject to rules and orders not inconsistent with this Act. This provision clarifies that the rights of common are not an absolute provision, to be exercised freely at any time and place within the Forest, but rather subject to reasonable exercise within the overall provisions of the 1878 Act.


 
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