Case No: CO/7143/2011 IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT B E T W E E N: THE QUEEN (On the Application of MICHAEL JOHN PELLING) Claimant -andSECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant -andCOMMISSIONER OF THE METROPOLITAN POLICE First Interested Party -and-

CITY OF LONDON CORPORATION Second Interested Party -andKEVIN BLOWE Third Interested Party _________________________________________________ AMENDED SKELETON ARGUMENT ON BEHALF OF THE FIRST INTERESTED PARTY __________________________________________________ For hearing: 5th and 6th December 2011 Time estimate: 1 ½ days Essential Reading: 

Grounds of Claim B1 Tab 1 pages 7 to 15 together with the new amended Ground of Claim B2 Tab 21 p324



This Skeleton Argument and Skeleton Argument of the Defendant



Claimant’s Statement of Facts B1 Tab 1 p16



Witness Statement of Ms Ramani B2 Tab 16

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

Witness Statement of Paul Regan B2 Tab 6



First, Second and Third Witness Statements of AC Allison B2 Tab 7, Tab 12 and Tab 13

Time for Reading: 2 hours Introduction 1. The Claim seeks a quashing order of the Legislative Reform (Epping Forest) Order 2011, S.I. 2011/1761 (“the LRO”) which was made on the 18th July 2011 pursuant to section 1 of the Legislative Reform Act 2006 (“the 2006 Act”). 2. This skeleton argument is lodged on behalf of the Interested Party (“the Commissioner”). The Commissioner contests all of the grounds of Claim. He submits that the grounds of Claim are unarguable and that permission to apply for judicial review should be refused. 3. This skeleton argument in large part reflects the Commissioners Summary Grounds for Contesting the Claim. There is no need for the Court to read those grounds in detail in the light of this skeleton argument. 4. Permission to apply for Judicial Review was refused by Irwin J on 4th October 2011 (B2 Tab 26). Unusually lengthy and detailed reasons for refusing permission were set out. 5. This matter is listed for hearing on an expedited and rolled up basis following the Order of the Nichol J on 8th November 2011 (B2 Tab 27) after an application had been made by the Commissioner. The Claimant sought to have this order set aside on the 25 November 2011 before Bean J. His application was refused. The Grounds of Claim 6. It is difficult to identify precisely the points raised in the grounds of Claim. The following grounds of Claim have been identified in an attempt to assist the Court, with each ground having a number for ease of reference: Ground 1 – The consultation exercise undertaken by the Defendant in relation to the LRO was contrary to the requirements of section 13 of the 2006 Act because: a)

there was a failure to consult local residents

b)

there was a failure to consult commoners;

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Ground 2 - The consultation exercise undertaken by the Defendant in relation to the LRO was contrary to the Consultation Code of Practice because the consultation exercise was not “designed to be accessible and clearly targeted at the people the exercise was intended to reach” Ground 3 – The consultation exercise undertaken by the Defendant in relation to the LRO was a sham and unfair in that it: a)

did not provide the information necessary to enable those consulted

to respond meaningfully; and b)

was “legally incoherent” in that it did not identify any burden that

needed to be removed or reduced. Ground 4 – The consultation exercise undertaken by the Defendant in relation to the LRO unlawfully did not allow for those consulted to raise issues regarding the potential to provide the police facility elsewhere. Ground 5 – A document that presented the case regarding a lack of alternative sites for the Police facility was only made available towards the end of the consultation period, thereby providing the Claimant with inadequate time to respond to its contents which is unfair and contrary to the Code of Practice on Consultation. Ground 6 – The justification for the Order presented to Parliament was different to that identified in the consultation process. In making the Order without further consultation the Defendant erred in law in that she: a)

acted contrary to section 13(2) of the 2006 Act; and/or

b)

those consulted were unlawfully deprived on the ability to make

representations on the justification for the Order that was presented to Parliament. Ground 7 –It was contrary to a statement in the Consultation paper to the effect that controversial LROs would not be approved. The LRO was controversial. Background 7. London will host the Olympic Games in 2012. This will require one of the largest policing deployments in UK history involving over 10,000 officers on peak days. As part of the policing of the Olympic Games the Metropolitan Police Service (“MPS”) identified a requirement for Muster, Briefing and Deployment Centres (“MBDCs”). Such centres provide facilities to allow officers to be gathered at the start of their

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shifts, so that they may be briefed together and so that they may be deployed in the most efficient way. They have been used for other large scale events such as the Notting Hill Carnival. 8. The MPS identified that the requirement could best be achieved using three geographically based purpose-built temporary MBDCs: one in North-east London to serve the Olympic Park, Victoria Park and Stratford; one in the South-east to serve Greenwich including the O2 Centre, the Excel centre and Woolwich barracks; and one in the West to serve the central and west London venues. 9. After a review of potential available open land sites, in consultation with the Corporation of the City of London the MPS identified the Fairground area of a part of Epping Forest known as Wanstead Flats as the only suitable location for the NorthEast London MBDC which could meet operational needs. This part of Wanstead flats is already used for a funfair and separately for a circus for typically 3 times each year, generally during late summer and early autumn and usually for 10-12 days each.

It is also the location of the annual London Borough of Newham November

Bonfire event – see the photographs exhibited to AC Allison’s Third Witness Statement. 10. The Wanstead Flats MBDC will be the largest of the three MBDCs. It involves the creation of a temporary facility. The site will be used as an MBDC for 90 days but because of need to sow grass seed and undertake other remedial works during the best advantageous growing periods after use, full site restoration will be undertaken after the 90 day occupancy period. Enclosure of the site would not exceed 90 days. The MBDC will comprise a mixture of tents and marquees, mobile cooking and sanitary units, portacabin offices and temporary stables with associated stores, equipment containers and electricity generating equipment. It will be enclosed by a lightweight solid panel steel fence painted Royal Park green. 11. The Epping Forest Act 1878 contains provisions which prevent the enclosure of any part of the Epping Forest. Its provisions would therefore preclude the enclosure of the site and prevent its use as an MBDC. 12. A Legislative Reform Order pursuant to the Legislative Reform Act 2006 was therefore sought in order to obtain amendment to the 1878 Act to allow the enclosure of the Wanstead Flats site for a temporary period of up to 90 days for the purposes of providing the MBDC. After the expiry of the 90 days period the full existing provisions of the 1878 Act would return into force.

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13. It is this Order which is the subject of challenge in these proceedings. Epping Forest Act 1878 14. Section 7 of the 1878 Act prohibits the enclosure of the Epping Forest (see B3 Tab 1). This includes the site at Wanstead Flats. Legislative Reform Act 2006 15. Under Section 1 of the Legislative Reform Act 2006 (“the 2006 Act”) (see B3 Tab 2) a Minister may by Order (hereinafter referred to as an “LRO”) make any provision which he considers would serve the purpose of removing or reducing any “burden” resulting directly or indirectly from any legislation. A “burden” is defined to mean any of the following: a. A financial costs b. An administrative inconvenience c.

An obstacle to efficiency, productivity or profitability; or

d. A sanction, criminal or otherwise, which affects the carrying on of any lawful activity. 16. A “provision” under Section 1 of the 2006 Act may be made by amending or repealing any enactment: section 1(7) of the 2006 Act. 17. To make an LRO a number of “pre-conditions” set out in Section 3(2) of the 2006 Act must be satisfied. The Claimant has not alleged in the grounds of Claim that any error of law arose in the Defendant’s determination that these pre-conditions were satisfied. 18. To make an LRO under Section 1 of the 2006 Act there are also a number of procedural requirements set out in Section 12 of the 2006 Act (see B3 Tab 2). 19. Section 12 of the 2006 Act provides: “(1) An order under this Part must be made by statutory instrument. (2) A Minister may not make an order under this Part unless– (a) he has consulted in accordance with section 13; (b) following that consultation, he has laid a draft order and explanatory document before Parliament in accordance with section 14; and

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(c) the order is made, as determined under section 15, in accordance with– … (ii) the affirmative resolution procedure (see section 17)…”

20. In effect the Claim alleges that the LRO was ultra vires because the Minister had not consulted in accordance with section 13 as required by Section 12(2)(a) of the 2006 Act. The Claim does not allege any breach of section 12(2) (b) or (c) of the 2006 Act. 21. Section 13(1) of the 2006 Act provides (so far as is relevant): “If a Minister proposes to make an order under this Part he must– (a) consult such organisations as appear to him to be representative of interests substantially affected by the proposals; (b) where the proposals relate to the functions of one or more statutory bodies, consult those bodies, or persons appearing to him to be representative of those bodies; (d) in such cases as he considers appropriate, consult the Law Commission…; and (e) consult such other persons as he considers appropriate.” (emphasis added)

22. Section 13(2) of the 2006 Act provides: “If, as a result of any consultation required by subsection (1), it appears to the Minister that it is appropriate to change the whole or any part of his proposals, he must undertake such further consultation with respect to the changes as he considers appropriate.” (emphasis added)

23. It is submitted by reference to these statutory provisions that: a. Section 13(1) of the 2006 Act provides discretion exercisable by the Minister as to who should be consulted. This is apparent from the use of the phrases “appears to him” and “as he considers appropriate”. Consequently, the exercise of that discretion is only challengeable on Wednesbury grounds b. There must be a change to the “whole or any part of” the “proposals” in order for the duty under section 13(2) of the 2006 Act to apply. A change to the justification for proposals which remain substantially unaltered does not give rise to a duty to re-consult pursuant to section 13(2) of the 2006 Act.

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The Consultation Process and the Proposed LRO 24. The MPS engaged in widespread consultation regarding its proposals for Wanstead Flats (see AC Allison WS B2 Tab 7 p 74 paragraph 25) including: a. The printing of 6,000 flyers (see B2 Tab 10 p 171); b. Of these, some 4,900 flyers were posted through the letter boxes of local households closest to the site as part of the consultation process between the 16th and 18th August 2010; c.

The remaining 1,100 leaflets were delivered to households and distributed locally in public areas by the Safer Neighbourhood Teams;

d. Fliers were made available at Leytonstone Library and handed out at Housing Association offices with a further 200 being distributed form Wanstead police station to community facilities within Wanstead; e. The flyers invited the public to public exhibitions in August and September 2010. The dates of these were 25th August 2010, 4th September 2010, 9th September 2010, 11th September 2010, 16th September 201; f.

The flyers referred to a website (www.wanstead-mbdc.co.uk) at which details about the proposals were available and provided a phone number for a consultation hotline (see B2 Tab 10 p176 and following);

g. The website was first available from 11th August 2010. On the “home page” of that website specific mention was made of the Epping Forest Act 1878 and the proposal to make an LRO and that a separate consultation exercise would be conducted (see B2 Tab 10 p187). h. On the website page heading “Have Your Say” it was stated (see B2 Tab 10 p187): “We are in discussion with the Government about how it might be possible to make the necessary legislative changes to enable the temporary briefing centre to be built in the summer of 2012. The intention is that any change in the law would also be temporary. The Home Office are carrying out a separate consultation regarding the temporary change. This can be found at www.homeoffice.gov.uk/publications/consultations”

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i.

A dedicated phone line was set up to provide an opportunity to leave comments and questions about the proposals;

j.

Over 300 personal letters were sent to local residents, political stakeholders and interested groups including Save Wanstead Flats in August 2010;

k.

The exhibitions contained a display panel which explained under the heading “Home Office Consultation” (see B2 Tab 10 p220): “The Epping Forest Act 1878 specifies the preservation and management of Epping Forest, including ensuring that the land is kept unenclosed and unbuilt on. We are in discussion with the Government about how it might be possible to make the necessary legislative changes to enable the temporary briefing centre to be built in the summer of 2012. Any change to the Epping Forest Act would also be temporary and would be likely to be accompanied by a further consultation process”

l.

At the public exhibitions comment cards were available. 274 comments were received. Of these 45 comments were submitted in relation to the proposal for an LRO.

25. Thus, prior to the commencement of the Defendant’s consultation exercise in relation to the proposed LRO on the 16th September 2010 the MPS had taken steps to inform local residents and others of the proposals generally and including the proposal for an LRO. Anyone interested in the LRO process would have been able to access the Home Office consultation via the website which specifically contained a link to the LRO consultation documents. 26. Further, the details available at the exhibitions and on the website included a description of what was proposed and photographs of a proposed site layout including an area for vehicles, operations area, briefing area, feeding area and horse section. The Frequently Asked Questions section of the website explained the rationale for the choice of the site (B2 Tab 10 p 188). It identified that the MBDC would occupy just a small area of the flats amounting to 3.5 hectares which is some 2% of the total area of Wanstead Flats (B2 Tab 10 p 193). 27. On the same day as the last exhibition was held, the 16th September 2010, the Defendant commenced consultation upon the proposed LRO with the publication of a consultation paper (B1 Tab 5).

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28. The consultation paper was sent to a Number of Community Groups (the list appears in Annex C of the Explanatory Document produced for Parliament by the Defendant – B1 Tab 3 page 45). This included the “Save Wanstead Flats” Group” which the Claimant had joined by this time. 29. The proposal contained in the Consultation Paper was set out on page 10 of that document (see B1 Tab 5 p107). It refers to a proposed amendment to the 1878 Act to enable the Corporation of London to grant permission to the MPS to construct and use a temporary centre. It would be limited to the unique policy need in the summer of 2012. No lasting powers would be conferred on any body and the Act would revert to its full protection at the end of the 120 day period. 30. At page 7 the Consultation Paper identified that (B1 Tab 5 p104 Top LH column): “Wanstead Flats is the only suitable site for the proposed North East centre that meets all the operational requirements required by the MPS.” 31. The document identified the features of the Wanstead Flats site that resulted in this conclusion in particular: a. It is a large, contained site; b. It is close to the Olympic Park and the new Westfield shopping centre through which a large percentage of visitors to the Park will transit; c.

It is close to Victoria Park where supporting Olympic events are taking place;

d. It is big enough to accommodate police requirements; e. It is not designated for any other Olympic use; f.

It is not too close to residential areas;

g. It has easy access to the road network; and h. It is close to the transport hub at Stratford. 32. On the 16th November 2010, as part of the documentation submitted with an application for planning permission for the MBDC to the London Borough of Redbridge, the MPS published a document entitled “The Need Case and Site Selection Decision Process” (see B1 Tab 3 p58 and following). This document was produced by CgMS consultancy, a firm of environmental and planning consultants. It was produced because the Wanstead Flats site lies within the Metropolitan Green Belt. As

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such Planning Policy Guidance Note 2 contains a presumption against inappropriate development unless “very special circumstances” are shown to exist that would outweigh the harm caused by inappropriateness. The document contended that there was no other suitable available site to meet the need for a temporary MBDC. Thus it concludes that the lack of an alternative site to meet the need for an MBDC should outweigh the inappropriateness of the proposed development (see B1 Tab 3 p p60 paragraph 1.4-5 of the CgMS document). 33. That document examined potential sites in two stages. The first stage applied the following criteria (B1 Tab 3 p68 and following): a. Site Size (approximately 3.5 ha); b. Location outside of a potential 1000m post incident exclusion zone of the Olympic park c.

Direct access from an A-Road; and

d. A clear area not subject to topographical or natural features 34. Twenty nine sites were initially identified, including Lady Trower Trust playing fields, put forward by the Third Interested Party. Of these sites, twenty five did not meet the criteria set out above (see B1 Tab 3 p70 paragraph 3.23 of the CgMS document). 35. The second stage examined the four remaining sites. These were assessed against a further list of criteria (B1 Tab 3 p 71 paragraph 3.25) including: a. Assurance of availability in 2012; b. Suitability to stable and deploy horses; c.

Lack of natural hazards e.g. flooding;

d. Availability of secondary access; e. Available of heavy vehicle access; f.

Ability to secure and control access to the site;

g. Limited impact upon local activities and recreational use; h. Relationship to other land uses; and i.

Availability of 24 hour access.

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36. Of the remaining four sites from the first stage, three sites failed against these criteria. Only the Wanstead Flats site did not fail. 37. A further ten alternative sites were put forward during the consultation process (although none of these were identified by the Claimant who has to this date not identified an alternative site that has not been considered already). These were: a. The Olympic Park; b. Hackney Marshes; c.

Police Station on Leytonstone Road;

d. City of London Corporation land opposite the Alfred Hitchcock Public House by the Green Man Roundabout; e. Drapers Field; f.

Land in front of Dockside;

g. London Fields; h. Forest Gate Police Station; i.

Bow Road Police Station; and

j.

Folkestone Road depot.

38. None of these sites meet the criteria for the primary MBDC (see B2 Tab 7 AC Allison First Witness Statement p77 paragraph 29). 39. Section 4 of the CgMS document went on to assess all of the sites suggested during the consultation process. All failed against the criteria apart from Wanstead Flats. Consultation Responses 40. Both the Claimant and the “Save Wanstead Flats” group responded to the consultation exercise relating to the LRO (see B1 Tab 6 and Tab 9 respectively). 41. “Save Wanstead Flats” group did not complain that the consultation process was inadequate because local residents had not been sufficiently consulted either in a letter dated 20 October 2010 (B1 Tab 7) to the Defendant or in a later response to the consultation exercise (B1 Tab 9). Nor did the Group contend that there had been a breach of the Code of Practice regarding consultation.

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42. The Claimant responded in a letter dated 8 December 2010 (B1 Tab 6). In that document he did not complain that the consultation process was inadequate because local residents had not been sufficiently consulted. He did not contend that there had been a breach of the Government’s Consultation Code of Practice (“the Code of Practice”) in that the consultation had not been “targeted” at local residents. 43. Indeed, no person responding complained that the consultation process was inadequate because the number of local residents had not been sufficiently consulted or that there had been a breach of the Code of Practice because the consultation had not been “targeted” at local residents. 44. The Claimant did raise issues including: a. the absence of a burden to be removed, although he identified section 7 of the 1878 Act as requiring repeal if the MBDC were to come forward (B1 Tab 6 p120); b. his rejection of the proposition that there was no other suitable site an issue in respect of which he indicated he wished to submit a substantive response (B1 Tab 6 p120); c.

that he had only received the CgMS document on the 17th November 2010 and he had insufficient time to respond to it (B1 Tab 6 p121 paragraph 4);

d. He pointed to an alleged breach of the Code of Practice in this regard (B1 Tab 6 p121 paragraph 5); 45. A number of those who responded to the consultation raised the potential for the MBDC to be located elsewhere, including:: a. Steph Harrison – Hackney Marshes, Leyton Orient football ground or West Ham parks; b. Gill and Alan James – preferred site within Wanstead Flats close to Alexandra Ponds. 46. At no stage since the commencement of the consultation upon the LRO has the Claimant identified an alternative site for the MBDC to be located upon which was not considered in the CgMS document. That was not done in his representations to Parliament. It has not been done in his evidence in the present proceedings. He made no representations related to the application for planning permission.

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47. The Save Wanstead Flats Group also did not identify an alternative site for the MBDC to be located upon which was not considered in the CgMS document. It did not identify any alternative site in its representations to Parliament. 48. Ms. Ramani’s witness statement lodged on 24th November 2011 (B2 Tab 16) seeks to raise a number of issues concerning potential alternative sites. This is the first time that this has been done on behalf of the Save Wanstead Flats Campaign. The sites referred to are not alternatives to the Wanstead Flats site for the reasons set out in AC Allison’s Third Witness Statement (B2 Tab 13). Proceedings in Parliament 49. Following consultation the Defendant laid a draft Order before Parliament. The Claimant made representations to both houses of Parliament and also petitioned the House of Lords Hybrid Instruments Committee. 50. In his Petition dated 4 April 2011 the Claimant states (paragraph 3) that “I do not accept the necessity case made by the police that Wanstead Flats is the only possible site for their MBDC but due to the flawed nature of the Home office consultation it has not been possible for myself or others to adequately investigate this.” 51. The draft Order was the subject of affirmative resolution in both Houses of Parliament. Ground 1 – Failure to Consult those required to be Consulted

52. As submitted above, Section 13(1) of the 2006 Act provides a Minister with a discretion as to who should be consulted. This is apparent from the use of the phrases “appears to him” and “as he considers appropriate”. Consequently, there was no legal duty upon the Defendant to consult with local residents or commoners, only a discretion to do so. A failure to consult with residents could not amount to an error of law unless such a failure was Wednesbury unreasonable which as not been submitted or established in this case. 53. In any event, as described above, the general public was made aware of the proposed LRO via leaflet drops, exhibitions, a website and a phone line. Specific local groups were sent the consultation document.

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54. Not a single response including those from the Claimant and the Save Wanstead Flats group alleged that the consultation with local residents was inadequate in the sense that they had not been specifically targeted. Indeed, no response to the consultation raised such a concern. 55. Further, the Claimant cannot contend that he was treated unfairly because he was not consulted. Nor can he contend that he was substantially prejudiced through such a failure since he responded to the consultation and indeed made representations to both Houses of Parliament. 56. Further and in any event, no local resident or commoner has commenced proceedings challenging the LRO on the basis that they were not consulted and have been substantially prejudiced thereby. 57. Even if such a party did come forward, it is submitted that the Court would not quash the LRO unless such a party could demonstrate that their consultation response would have made a difference to the Defendant’s decision i.e. that they would have raised a matter that the Defendant has not already taken into account which might lead to a decision not to make the LRO. 58. In Simplex G.E. (Holdings) and Another v Secretary of State for the

Environment (1989) 57 P. & C.R. 306 the Court of Appeal held that even where an error of law in a decision making process was identified, the Court will not quash where it is established that the decision maker on redetermination would come to the same conclusion. 59. In R (Majed) v London Borough of Camden [2009] EWCA Civ 1029 the Court of Appeal held that a statement in a policy document that a particular party would be consulted was capable of giving rise to a legitimate expectation the breach of which would render the grant of planning permission unlawful. However, it is also an example of the Court applying Simplex and determining that as a matter of discretion the decision should not be quashed because the decision maker would still come to the same decision. 60. Ms. Ramani’s witness statement does not raise issues that demonstrate that there is any realistic alternative site which would meet the selection criteria. It is submitted that if the Defendant were to reconsider the making of the LRO she would inevitably make the same decision. 61. This ground of Claim is unarguable.

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Ground 2 – Code of Practice 62. Under this Ground the Claimant argues that the consultation exercise was contrary to the Government’s Consultation Code of Practice because the consultation exercise was not “designed to be accessible and clearly targeted at the people the exercise was intended to reach”. It is assumed this is intended to mean that because local residents were not all directly sent a copy of the consultation document to their addresses a breach of the Code of Practice has arisen. 63. An unequivocal statement in a policy that a person will be consulted in a particular way can give rise to a legitimate expectation. The breach of that expectation can amount to an error of law: see Majed (above). 64. In the present case, the Code of Practice contains no unequivocal statement that can be relied upon to establish that local residents and/or commoners had a legitimate expectation that they would all be sent copies of the consultation document to their addresses. The Claimant identifies no such statement within the Code of Practice in the Grounds of Claim. 65. In any event, the Claimant cannot himself claim breach of a legitimate expectation as he had a copy of the consultation document and responded to it. He has suffered no substantial prejudice in this respect. 66. Further and in any event, no local resident or commoner who alleges that they were not consulted has commenced proceedings challenging the LRO on the basis that a legitimate expectation based upon a ground to the effect that the Code of Practice was breached and that they have been substantially prejudiced. 67. Even if such a party did come forward, it is submitted that the Court would not quash the LRO unless such a party could demonstrate that their consultation response would have made a difference to the Defendant’s decision i.e. that they would have raised a matter that the Defendant had not already taken into account which might lead to a decision not to make the LRO: see Simplex and Majed above. 68. There is no evidence before this Court that demonstrates that this would be the case. 69. This ground of Claim is unarguable. Ground 3 - A Sham Exercise 70. Under this Ground of Claim it is alleged that the consultation exercise was a sham and unfair in that:

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a. It was “legally incoherent” in that it did not identify any burden that needed to be removed or reduced; and b. It did not provide the information necessary to enable those consulted to respond meaningfully. 71. A consultation is required to include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response. In

R v North and East Devon Health Authority ex p. Coughlan [2001] Q.B. 213 the Court of Appeal held (at paragraph 108) that “…whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent

London Borough Council, Ex p Gunning (1985) 84 LGR 168 . 72. The consultation exercise identified that: a. The 1878 Act prevented enclosure of the Wanstead Flats; b. This would prevent the use of the Flats for a MBDC; c.

The MBDC was required in association with the Policing of the Olympic;

d. No other suitable site had been identified; and e. The LRO would amend the 1878 Act to allow for the temporary enclosure of the Wanstead Flats for 120 days and would thereafter leave the 1878 Act unchanged. 73. The consultation exercise was “legally coherent” in that it identified the 1878 Act as preventing the enclosure of the Wanstead Flats and thus preventing the use of the only suitable site for facilities required in connection with the policing of the Olympic Games. That was the “burden” that the proposed amendment sought to remove. 74. The consultation provided the information necessary to enable those consulted to respond meaningfully. Perusal of the consultation responses received demonstrates this.

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Ground 4 – Alternative Sites 75. It is argued that the consultation unlawfully excluded the potential for consideration of alternative sites. 76. In the circumstance of the consideration of an LRO to achieve the specific object of allowing enclosure of the Wanstead Flats site there was no legal requirement upon the Defendant to consult as to whether there were potential alternative sites. Consultation was only required under the 2006 Act in relation to the proposal which related to the use of a specific site. The Defendant was entitled to rely upon the site assessment undertaken by the MPS and its consultants. 77. The issue of alternative sites was however relevant to the determination as to whether planning permission should be granted, given the location of the Wanstead Flats within the Metropolitan Green Belt. If an alternative site that could accommodate the need identified for a MBDC was available that was not in the Metropolitan Green Belt then very special circumstances could not have been established and planning permission would have been refused. In fact, the Claimant raised no such argument with the local planning authority. Indeed, he did not object to the grant of planning permission other than to sign a petition against the proposed development. Planning permission was granted by the local planning authority because it accepted that very special circumstances exist. That grant of planning permission has not been challenged in Judicial Review proceedings. It is now more than three months since that planning permission was granted and the time limit for Judicial Review of it has expired. 78. In any event, it was open to any party to identify an alternative site. Indeed, some consultation responses did suggest alternative sites as set out above. 79. Further, the Claimant contends that it was not possible to identify an alternative site as the selection criteria had not been published. That is incorrect. Any reasonably intelligent person with an interest in this matters approaching the matter in a common sense way would have been able to discern from the exhibitions, the website, the consultation paper and the nature of what was proposed that: a. A site of at least 3.5 ha would be required; b. It would need to able to be contained and secure;

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c.

It would need to be located close to the Olympic Park and Victoria Park;

d. It would have to be not designated for any other Olympic use; e. It would have to be available in 2012; f.

It would need good and easy access to the road network; and

g. It would have to be a suitable location for the deployment of horses to the Olympic Park. 80. Yet further, the Claimant has had the alternative sites assessment now since the 17th November 2010, a period of more than a year. The Claimant has not identified an alternative site at any stage since the commencement of the consultation that was not considered in the CgMS document. Indeed, even in April 2011, well over 12 weeks since he received the CgMS document, the Claimant indicated that it had not been possible for him to investigate that document (see paragraph 50 above). The Claimant does not identify that there is an alternative site in the Claim. The Claimant does not identify that he has undertaken an appraisal of a potential alternative site that was not considered in the CgMS document or that he has commissioned others to do so. 81. Ms Ramani’s witness statement refers to a number of sites that have already been considered and which fail against the selection criteria. She identifies two sites not previously considered but these would fail against the criteria also and/or are not feasible or practical (see B2 Tab 13 Third Witness Statement of AC Allison). Crucially she does not demonstrate that any of the sites she refers to would be available to the MPS during the Olympics. 82. It is submitted that to date no alternative site has been identified by any party that would meet the operational requirements of the MPS. 83. Thus, if the LRO was quashed and the matter re-consulted upon there is no evidence that any party would identify a site that has not already been considered. There is thus no evidence that such re-consultation would produce any different result than that the LRO would be made again. Thus applying Simplex, even if an error in the consultation process were identified there is no basis for concluding that the Defendant could reach any different decision 84. This Ground of Claim is unarguable

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Ground 5 – the CgMS document 85. Under this Ground of Claim the Claimant contends that because the CgMS document relating to alternative sites was only made available towards the end of the consultation period he had inadequate time to respond to its contents in the LRO consultation. He alleges that this was unfair and contrary to the Code of Practice on Consultation. 86. The CgMS document was not produced by the Defendant for the purposes of the LRO consultation; rather it was produced by the MPS as part of the documentation to support the application for planning permission and was submitted alongside that application. 87. Nevertheless, the essence of the basis upon which the Wanstead Flats site was selected appears in the LRO consultation document. As submitted above, it was an easy task to identify the factors to which regard needed to be had in relation to site selection. The Claimant could have made representations identifying an alternative site at any time during the consultation period even in the absence of the CgMS report as others did. 88. In fact, as set out above, at no stage has the Claimant identified an alternative site which was not already considered in the CgMS document. The Claimant does not identify that there is such a site in the Claim. The Claimant does not identify that he has undertaken an appraisal of a potential alternative site which was not already considered in the CgMS document or that he has commissioned others to do so. Indeed, even in April 2011, well over 12 weeks since he received the CgMS document, the Claimant indicated that it had not been possible for him to investigate that document. Even over a year later he has still not identified a suitable alternative site for the MBDC which meets the selection criteria. 89. It is submitted that Ms Ramani’s witness statement does not demonstrate that there is a suitable alternative site for the MBDC which meets the selection criteria. 90. There is no reason to believe that the Claimant would have been in any different position if he had been provided with the CgMS document at the beginning of the 12 week LRO consultation period. 91. Accordingly, it is submitted that: a. The publication of the CgMS document by the MPS as part of its application for planning permission did not give rise to a breach of the Code of Practice

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and there was no requirement in that Code that that publication should have resulted in re-consultation or an extension in the time provide for responses; b. There is no evidence that the Claimant has been prejudiced by the timing of the publication of the CgMS document. 92. Nor is there any evidence that if re-consultation occurred any suitable alternative site would actually be identified and proffered by the Claimant which had not already been considered and dismissed as unsuitable in the CgMS document. On that basis the Defendant’s decision to make the LRO would inevitably be the same. Thus, as a matter of discretion, applying Simplex even if the Court determined that the release of the CgMS document gave rise to unfairness, the Court should not quash the decision to make the LRO. Ground 6 – Different Justification 93. Under this Ground of Claim the Claimant argues that the justification for the Order presented to Parliament was different to that identified in the consultation process. Thus, the Claimant contends that in making the Order without further consultation the Defendant erred in law in that she: a. acted contrary to section 13(2) of the 2006 Act; and/or b. those

consulted

were

unlawfully deprived

on

the

ability to

make

representations on the justification for the Order that was presented to Parliament. 94. Section 13(2) of the 2006 Act only requires a further consultation if the “proposal” changes. It does not require re-consultation if the justification for the proposal changes. 95. In R (Smith) v East Kent Hospital NHS Trust, Kent and Medway Health

Authority [2002] EWHC 2640 (Admin) Silber J stated (at paragraph 45): “The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be re-consultation if there is

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a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt.” (emphasis added) 96. Thus, there is generally only a duty to reconsult if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt. 97. In the present case, the proposal consulted upon was for amendment of the 1878 Act to enable the enclosure of the Wanstead Flats site for a temporary period during the Olympics for use as a MBDC. The draft LRO which was laid before Parliament proposed amendment of the 1878 Act for precisely that purpose. The LRO that was made achieves precisely that purpose. It is submitted that there was no fundamental difference between the proposal consulted upon and that which the consulting party subsequently adopted. 98. Further, the justification for the LRO did not change between the consultation and the subsequent consideration post-consultation. The LRO was justified throughout the process by the fact that a MBDC was required to enable appropriate policing of the Olympic Games 2012 and the only site identified that was suitable to do this was at Wanstead Flats. 99. Accordingly there was no duty to re-consult and no error of law here. 100.

This ground of Claim is unarguable.

Ground 7 - Controversial 101.

This Ground of Claim alleges that it was contrary to a statement in the

Consultation paper to the effect that controversial LROs would not be approved. The LRO was controversial. 102.

The Consultation Paper at page 12 explains under the heading “Constitutional

Significance” that a Minister may not make an LRO if she considers that the provision made by the LRO is of constitutional significance. It goes on to state: “It should be noted that even where the preconditions of section 3 of the 2006 Act are met, an LRO cannot…deliver “highly controversial” proposals…” 103.

This

statement

reflects

undertakings

given

to

Parliament

that

the

Government would not use the powers to force through an LRO in the face of opposition from Committees.

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Jim Murphy, Cabinet Office Parliamentary Secretary (Commons Hansard 9 February 2006: columns 1058-1059) I am giving a clear undertaking today that orders will not be used to implement highly controversial reforms, that they will not be forced through in the face of opposition from the Committees of this House and that the Committees’ views of what is appropriate for delivery by order will be final. Pat McFadden, Cabinet Office Parliamentary Secretary (Commons Hansard 15 May 2006: column 795) The Government have also given an undertaking that they will not do anything highly controversial using an order and that an order will not be forced through despite opposition from the relevant parliamentary Committees. (..) the Government have placed on a statutory footing a veto for relevant Committees of either House. That will provide further assurance for those concerned that an order will proceed only if the informed view of the House and another place is satisfied that its outcome is desirable. Lord Bassam of Brighton ( Lords Hansard 13 June 2006: column 125) I can reiterate two key Government undertakings: that the Government will not deliver highly controversial measures by order and that we will not force through orders in the face of opposition from the parliamentary Committees. 104.

The undertakings provided to Parliament are not undertakings to the world at

large; rather they are undertakings to Parliament and intended to be enforceable only within Parliamentary processes. 105.

The fact that there is local opposition to the LRO does not mean that the

reform delivered by the LRO is highly controversial in the sense of being constitutionally significant. A judgment has to be reached. The mere fact that objections have been raised does not mean that an LRO is highly controversial. There must be something of significance constitutionally regarding the reform proposed. The Claimant has not identified any issue of constitutional significance in his Grounds of Claim. 106.

The Defendant’s conclusion that the reform sought by the LRO, which would

allow proposals for the use of Wanstead Flats on a one-off basis for 90 days to enable the efficient and cost effective policing of the Olympic Games, was not highly controversial and cannot be categorised as Wednesday Unreasonable. 107.

Accordingly, this Ground of Claim is unarguable.

Conclusion 108.

The LRO under challenge in this case has been the subject of extensive

consultation, of deliberation in both Houses of Parliament and of affirmative

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resolution of both Houses. The LRO is an essential part of providing for one of the largest peacetime policing operations in UK history. In the absence of any compelling error of law in the process, this Claim should be dismissed immediately so that the MPS can continue its preparations to ensure that the Olympics are effectively policed. 109.

For the reasons set out above the Claim is unarguable.

Costs 110.

In accordance with the principle in R. (on the application of Mount Cook

Land Ltd) v Westminster CC [2004] 2 P. & C.R. 22 at paragraph 76 the Interested Party seeks an order that its costs related to the filing of this acknowledgement of service be paid by the Claimant. 111.

Further, if the Witness Statement of Ms. Ramani had been filed with the

Claim in accordance with Part 54, the Interested Party would have responded to that document in evidence filed with its acknowledgment of service. Accordingly, the costs of responding to that witness statement are properly costs recoverable under the Mount Cook principle above. The Interested party seeks its costs of responding to this witness statement. 112.

Further, the Interested Party secured an order for an expedited and rolled up

hearing on this matter. The Claimant sought to set this aside at a hearing before this Court. He was unsuccessful. Bean J reserved costs. The Interested Party thus successfully defended the Order it had obtained. It seeks its costs that hearing.

30 November 2011 REUBEN TAYLOR Landmark Chambers 180 Fleet Street London EC4A 2HG

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