QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

In the matter of an Application for Judicial Review

B E T W E E N :

1. I make this Affirmation further to my First and Second Affirmations dated 6th February 1997 and 22nd April 1997 respectively. I have raised in my earlier two Affirmations the basis of my Application to the court, and I now wish to focus on, and to set out in more detail, the main areas of my argument. In particular, I have now received advice from a Mr Keith Buchan, an expert in traffic matters, which is to be filed as evidence in the present proceedings. Mr Buchan in his advice has focused on the assertions made by ADL Traffic Engineering Ltd, consultants engaged by McDonald's Restaurants Limited, that the traffic implications of the proposed development will be minimal and insufficient to justify a full Traffic Impact Assessment. I wish to set out my arguments on this particular point in some detail, and my position is accordingly set out herein below.

2. LOCATION

I refer first to exhibit "RJT 23" at bundle pages 693 to 696. A copy map appears at bundle page 694, and a more detailed map appears at bundle page 695. The White Lion pub is shown clearly on the London Road almost opposite the junction of London Road and St James' Road and a shorter distance down from the junction with London Road and Moat Road. The White Lion pub is separated from Moat Road by two sites, one occupied by a church, the other formerly by a depot, now used as a vitamin factory. On the far side of Moat Road continuing along London Road, there is some residential accommodation and a fire station. The south side of the same stretch of London Road shows further residential housing, office accommodation, industrial areas, another church, and community facilities. There are a considerable number of road junctions on London Road along the relevant stretch as both the maps at pages 694 and 695 clearly show. This stretch of the London Road is a dual-lane single way carriageway with traffic travelling from the north west to the south east. and carrying a substantial amount of traffic. As can be seen from the map at page 694, shortly after the junction between London Road and St James' Road the road splits into two separate single-lane carriageways. The more northerly carriageway continues into Beeching Way, the Inner Relief Road towards Eastbourne. The more southerly carriageway takes traffic into East Grinstead town centre along the A264.

3. Due to the road splitting at this point, traffic difficulties are particularly acute as motorists frequently change lanes depending on the destination they are heading towards. This results in a considerable amount of weaving between the lanes. It seems clear to me, and I would suggest would be a matter of common sense, that to have a major attraction such as a McDonald's Drive Thru at this point which would inevitably attract traffic off the road will inevitably increase the number of motorists needing to change lanes. For example, a motorist headed for the town centre, and therefore driving along the southern branch off from London Road, would need to cross the northern lane of traffic in order to enter the McDonald's Drive-Thru, and would then have to recross the northern line of traffic in order to regain a place in the southern lane of traffic so as to be in the right position to take the correct road at the point where the road splits. The distance from the proposed McDonald's site to the point at which the road splits is approximately 50 to 100 yards. It seems not unreasonable to suggest that approximately 50% of McDonald's traffic may come from the northern lane and 50% from the southern lane. On this assumption, there would be two traffic movements resulting from each motorist leaving the northern lane to enter McDonald's and then re-entering London Road to continue along the northern lane, thus directly disturbing a single lane of traffic only. However, each vehicle leaving the southern lane to enter McDonald's will disrupt the traffic flow in both lanes on both entering McDonald's and on returning to the southern lane after exiting McDonald's, and would therefore in my view clearly cause not two but four effective traffic movements. The complex situation of London Road at this point resulting from its heavy use, the absence of any bypass, and the number of junctions on London Road, would clearly be significantly exacerbated by the addition of a popular stopping point such as McDonald's on this very short stretch between Moat Road and Beeching Way.

4. TRAFFIC IMPLICATIONS

So far as the traffic implications of the proposal are concerned, the only consideration has been in an undated and unsigned traffic note prepared by ADL Traffic Engineering Ltd which appears at exhibit "RJT 12" (bundle pages 131 to 140). This note is not an independent assessment of the traffic implications, but was produced by ADL in their capacity as consultants engaged by McDonald's and more particularly was submitted in support of McDonald's planning application. The brief that McDonald's gave to ADL is not available to me, but I note that the traffic note is headed "Traffic Generation and Car Parking Assessment". The document does not purport to be a full report on all traffic implications arising from the development and appears from its title and its contents to be limited to the very narrow question of traffic generation and, separately, car parking issues. Traffic generation, as the advice from Mr Keith Buchan makes clear, is only one part of the consideration of traffic implications arising from any development, and, further, it is not the normal marker by which to gauge the quantity or the quality of the traffic implications arising. Not only is it not the usual marker used by professionals or in Traffic Impact Assessments, it is also not the marker used in the government guidelines set out in PPG 13 (exhibit "RJT 8"), nor within the Traffic Impact Assessment guidelines set out at exhibit "RJT 9". It is clear from these documents that the important consideration will normally be traffic movements, not traffic generation, and the advice from Mr Buchan bears out that this would be the basis on which a professional report would be prepared. It must therefore follow that the traffic note from ADL was not, and was not intended to be, by way of a full traffic assessment, but had a very much more limited scope.

5. IRRATIONALITY

My main argument against MSDC is that there was a complete failure within the decision making process either to properly consider, or to consider at all, whether or not a full Traffic Impact Assessment should have been prepared before a determination was made on the planning application itself. I would suggest, with respect, that this complete failure by the council, in effect a failure to consider whether there were traffic implications that required consideration, evidences no less than an extraordinary level of complacency and indifference in the decision-making process, and was furthermore contrary to common sense. Mr Buchan advises that in these circumstances no rational decision could have been made.

6. It is clear from the report by the County Surveyor in exhibit "RJT 4" (at bundle pages 46 to 50) that the council did not consider at any stage the question of traffic movements. The County Surveyor's Report is contained in the agenda papers for the North Area Plans Sub-Committee for its meeting on 7th November 1996. Council officers who prepared that report set out on pages 5 and 6 of the report (bundle pages 45 and 46) the grounds of objection to the application which had been received by the council. Objection number 14 sets out the objection that the application is "contrary to government guidance set out in PPG 13 concerning transport issues". However, the officers' report does not address at any stage what government guidance is set out in PPG 13; it does not set out the basis on which objectors have claimed that the application is contrary to PPG 13; and the minutes do not show any consideration of this issue.

7. I was present at the committee meeting on 7th November 1996, and I can confirm that councillors did not ask for clarification of what government guidance was, nor did they in any other way consider whether a Traffic Impact Assessment was necessary or desirable. There was no discussion by either officers or councillors of any of the requirements of either PPG 13 or of the government Traffic Impact Assessment guidelines. Members of the public sat in a public gallery above the council meeting, and were not allowed to participate in that meeting. No member of the public, including myself, was permitted either to make comments or to ask questions. To the best of my recollection, four members of the committee spoke on the planning application, but none referred to traffic guidelines. Councillor Izzard referred specifically to the positiion of the Town Council, and expressly stated that he would be voting for the application. His position appeared to be clearly related to the Town Council position which was misrepresented, and not corrected, in the report to the committee.

8. The committee appeared to take at face value the assertion by ADL for McDonald's that the only traffic implications of the development would be the generation on the highway of 20 new vehicles per hour, notwithstanding that such a concept of additionality is not the relevant criteria. No consideration whatsoever was given to the impact of traffic already on the road using the McDonald's site, notwithstanding the fact that on McDonald's own figures 66% of the users of the site would be from existing traffic on the road, and only 34% would be newly generated traffic.

9. Turning to bundle page 134, the ADL traffic note shows at Table 2D "Expected Traffic Generation on a Friday". The table averages out figures stated to have been taken from other McDonald's sites and also stated to be comparable. Leaving aside for the moment the question of whether these figures are either accurate or appropriate comparitors, it is clear that the figures are shown as an average anticipated take-up at East Grinstead. It seems a matter of common sense that average figures would be capable of variation both up and down. The figures are not maxima, although the report to councillors treats them as such.

10. Taking two of the comparitors used, the ADL note anticipates an average input and output between 5pm and 6pm on a Friday evening of 60 vehicles in and 59 vehicles out, ie. a total of 119 movements. Between 7pm and 8pm on the same evening, the note anticipates 79 movements in and 75 out, ie. 154 movements.

11. McDonald's claim that their peak trading is during Friday evening and Saturday daytime. At bundle page 134, the Saturday lunchtime trading peak is anticipated to be 92 cars in and 80 cars out, ie. a total of 172 movements.

12. The only figures available at all in relation to traffic flow are from the council's 1990 traffic survey and show Thursday evening figures between 4pm and 6pm. There are therefore no traffic figures available at all to use in relation to McDonald's peak trading hours of 7pm to 8pm Friday evening and lunchtime Saturday. The actual figures from the original traffic survey and factored-up figures are shown at page 137. McDonald's trading figures for these times are substantially lower than for either the later Friday evening or the Saturday lunchtime figures. There was absolutely no discussion at all at the committee meeting of either the trading figures, the traffic figures, or the way in which the 1% increase in traffic had been calculated. Councillor Paul Johnson, I recall, queried in general terms the veracity of the County Surveyor's report but did not specifically query either the traffic or trading figures,or state in what way he was challenging the veracity of the report. I recall that he was given no reply either regarding the veracity of the report in general terms, or in relation to traffic issues. The assumption by McDonald's that the only relevant figure was 20 new cars during what is an off-peak trading period was not challenged or discussed, and the relevance of PPG 13 or TIA guidelines was not mentioned.

13. McDonald's estimate that at Friday evening peak trading (7-8pm), 79 cars an hour would enter. If 34% (27 cars) are new generated traffic, it follows that the remaining 52 cars are existing road users. The council appears to have assumed that the impact of these vehicles entering and leaving the McDonald's site would be nil. Again, common sense would dictate that this would not be so, and the main thrust of my argument against the council centres on this point. These 52 cars, or 66% of the hourly traffic using McDonald's, would clearly have a demonstrable effect on the traffic in one or both lanes. The advice from Mr Buchan which I have received states clearly that the use by McDonald's of existing traffic would cause a disturbance to traffic flow on the road. He also states clearly that the fact that traffic entering and leaving the development site would have previously driven along the road without stopping does not mean that it can be discounted. Mr Buchan states further that "the correct analysis of whether a full impact assessment should be carried out should be based on the existing traffic conditions, and the level of traffic using the development. This should be measured as vehicle movements, since it is these which have the impact on traffic flow." In the conclusion of his advice, Mr Buchan states:

"The reduction of the development's traffic flow to 1% of existing flow is only achieved by introducing the inappropriate concept of additionality, and by ignoring the existing traffic movements. Correcting for this would produce a figure of just over 6%. This would make a full Traffic Impact Assessment "normal"."

and

"Currently on the road which would provide entry and exit for traffic to and from the development there are significant peak flows. It is located in the built up environs of East Grinstead and not in an isolated free flowing position, and there is a series of junctions close by. All this argues that the traffic situation is complex and requires full analysis if a rational decision is to be reached."

15. The council completely failed to consider this requirement at all and completely failed to consider whether or not the traffic movements resulting from the new site came within either PPG 13 or TIA guidelines. There was no assessment of the grounds on which a Traffic Impact Assessment would be required, nor of whether these grounds were substantiated in the matter before them for consideration. It is, I would suggest, quite ridiculous to consider whether a small percentage of the traffic which will use the Drive Thru in one hour would have an impact on the traffic flow on the main road in any hour but to ignore whether the remaining, and much larger percentage, will have any impact at all. Such an approach is not only an affront to common sense but runs counter to the basis on which a professional assessment would normally be made. This is the crux of my objection in the present application. The failings in the decision-making process all flow from this first and fundamental failure to consider and pre-determine whether the traffic considerations themselves required consideration. This is a significant and fundamental irregularity going to the heart of the decision-making itself. The decision-making process, in effect, never got off the starting block.

16. STATUS OF LONDON ROAD

The A22 London Road is part of the Primary Route Network (see bundle page 73, para 5.55). The road runs from Purley in Greater London through junction 6 on the M25 at Godstone to Uckfield, Hailsham and Eastbourne. The Highway Authority, responsible for the A22 London Road, is the West Sussex County Council. I refer to exhibit "RJT 7", and in particular to bundle pages 66-69, 73, 75-76. The document states (para 1.2 - bundle page 66) that "severe traffic congestion occurs on [this] road, particularly in peak periods, due to inability to cope with existing traffic demand". At para 1.4, it is stated that the inner relief road (Beeching Way) is rapidly approaching its design capacity, and further increases in traffic would result in a reduction in the level of service. At para 2.1 (page 69), it is stated that "one of the major problems in the area requiring attention is traffic congestion at East Grinstead town centre network and the main approaches to the town. Congestion is related to the degree that the local network is approaching capacity."

17. The relevant section of the A22 is described at bundle page 75. The road is described as sub-standard in many parts with numerous junctions and accesses, forming a major bottleneck to through traffic and incapable of coping with traffic to and from the town itself without causing delays, particularly at peak periods. Extensive environmental disturbance is noted from the effects of traffic. Severe congestion in the area to the north of East Grinstead is particularly noted, ie. in the area of the proposed development. At bundle page 76, para 5.63, accident conditions are described. Five lengths of road in the built-up area of East Grinstead are stated to have accident rates worse than the national average rates used by the Department of Transport. The stretch of the A22 London Road between the junctions with Moat Road and Beeching Way is one of five lengths of road specifically mentioned as having above average accident rates. This is the short stretch of road on which the proposed development is sited. Paras 5.64 and 5.65 deal with existing environmental problems in this area. There was no consideration of any of these matters at the committee meeting, nor any consideration of whether these required examination before a decision on the planning application was taken.

18. GOVERNMENT GUIDELINES

PPG 13 (bundle page 82) deals with the need to manage road traffic demand, and in particular to promoting the reduction of local traffic on through routes. At bundle page 95, PPG 13 sets out transport priorities and access to developments. In particular, through routes should not have a strategic role undermined by developments encouraging short local trips; developments compromising safe movement and free flow of traffic and the safe use of the road. Para 6.3 states that plans should aim to reduce the need to use through routes for short local journeys. Para 6.4 provides that direct access onto primary routes should be avoided.

19. Annex B to PPG 13 (at bundle pages 99-100) deals with planning application procedures and in particular consultations with Highway Authorities. Paragraph 2(a) states that local Highway Authorities should be consulted if a planning application includes the alteration of any means of access to any road for which they are the Highway Authority. Paragraph 2(b) requires consultation where there is likely to be a material increase in volume of traffic entering or leaving a classified road. Again, this has not been addressed by the committee at all, although it is clear that the application does include alteration of the means of access to London Road. From my own observation, there is very low usage of the pub at Saturday lunchtime, and the anticipated Saturday lunchtime peak trading for McDonald's (92 in, 80 out - totalling 172 movements) is a massive increase in the volume of traffic entering or leaving the road at that time. Neither McDonald's nor the council ever attempted to count either traffic movements (see the Buchan advice), or the increase in volume of traffic entering or leaving the site. The ADL note and the council report look at traffic increase along the road. This is the wrong consideration.

20. By paragraph 6, local authorities may not decide an application on which consultation with Highway Authorities is necessary until 14 days after the Highway Authority has been notified of the application by either the local planning authority or the applicant.

21. In this case, the relevant Highway Authority were not notified of, and did not consider, the application, and the local planning authority failed to consider whether or not the conditions laid down by PPG 13 for highway consultation had been met and needed to be complied with. I would submit that this was irrational and unreasonable.

22. The failure to consider the need for a Traffic Impact Assessment (and, secondarily, the failure to consider the need for a highway consultation) are the main grounds on which I seek leave for this application. There are, however, other matters which also show procedural irregularity, including the misdirection regarding the East Grinstead Town Council position on the matter; the failure to report to members the police position set out in its letter of 30th August 1996 ("RJT 28", pages 736-738), and the incorrect summary of the police position at bundle page 50; the failure to obtain or consider the absence of any consultation with the local fire authority; the failure properly to consider the matters set out at bundle pages 45 & 46 as being grounds of objection raised by local people. These individual points were not considered by the council.

23. CAR PARKING

The council's own report states that the car parking provisions fall below the County Council's required provision, yet again there was no consideration of the acceptance of the unsatisfactory provisions. (see ADL report at bundle pages 138 - 139; see also officer's report at bundle pages 48 - 49)

24. SPEED OF TURNOVER

McDonald's claim that one car can be served every 90 seconds (see bundle page 49). This equals 45 cars per hour. There is no consideration of how the 92 cars entering during the peak Saturday lunchtime hour can be accomodated within such a turnover time. The car parking provision would provide for a waiting area. Again, the committee failed to consider the implications of this at all, and the issue has not been addressed in the ADL Note at all. Again, I would argue that it is irrational for the council to have made any determination on the planning application without without addressing this issue and giving it consideration.

25. LOCUS STANDI

I am advised that one response that might be put forward to this present application may be an argument as to whether I have a sufficient and relevant interest in the matter, and accordingly whether I have Locus Standi. I have been advised that the law on this point has recently been clarified in a decision of Mr Justice Sedley in this Honourable Court on 18th April 1997. The case, CO/3410/96, in the High Court of Justice, Queen's Bench Division Crown Office List, before Mr Justice Sedley, ex parte Mr Richard Dixon, is too recent to have been fully reported. I have been able to obtain only an unauthorised transcript of the judgment, which does however show that the case concerned an application for leave for judicial review of a decision by Somerset County Council in relation to quarrying operations. It was argued on behalf of the council in that case that Mr Dixon, the applicant, lacked a sufficient interest to move for judicial review of the grant of planning permission in question. Mr Justice Sedley held that in principle the question of locus ought to be considered in the context of the questions raised. He held further in the context of that case that the issues raised by the applicant went to the root of the legality of the planned operations. On behalf of the mining company it was argued in that case that Mr Dixon had no "sufficient interest" within the Supreme Court Act 1981, section 31(3), and RSC Order 53 Rule 3(7). It was argued that Mr Dixon had no interest as a landowner or as the possessor of a personal right or interest threatened by the proposed quarrying, and therefore did not have a "sufficient interest" within the meaning of the Act and the Rules. Mr Justice Sedley however rejected the intended respondent's submission that for this reason he lacked standing. Mr Justice Sedley considered the history of the question of locus standi. Mr Justice Sedley applied the test set out by Lord Donaldson MR in R vs Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763, 773, which he stated sets out what has been consistently adopted as the proper practical test to apply, as follows:

"The first stage test which is applied on the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant's interest is one of the factors to be weighed in the balance."

Mr Justice Sedley then went on to say that it had become clear that the following elements were to be highlighted:

"(a) The threshold at the point of the application for leave is set only at the height necessary to prevent abuse.

(b) To have 'no interest whatsoever' is not the same as having no pecuniary or special personal interest. It is to interfere in something with which one has no legitimate concern at all; to be, in other words, a busybody.

(c) beyond this point, the question of standing has no materiality at the leave stage.

(d) ......"

"The real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved." Mr Justice Sedley spent some time looking at a line of historical cases on the issue, and gave his view that it was entirely misconceived at the leave stage of an application to elevate the question of standing above the elementary level of excluding busybodies and trouble-makers and to demand instead something akin to a special private interest in the subject matter. Mr Justice Sedley also gave the view, obiter, that such an argument may even be insufficient, depending on the issue, at the substantive hearing. He concluded further that public law is not about rights but wrongs, ie. misuses of public power, and that if an arguable cases of misuse of public power can be made out on an application for leave, the court's only concern is to ensure it is not being done for an ill motive. The fact that the implications of an application will be troublesome for the intended respondents does not make the applicant either a busybody or a mere troublemaker. Rather, Mr Justice Sedley held that a citizen is perfectly entitled to be concerned about, and to draw the attention of the court to, what the applicant contends is an illegality in the grant of a planning consent.

26. I have lived in the East Grinstead area for 2 years. My former address, [ ] Avenue, is within 5 minutes walk from the site of the proposed McDonald's (see bundle page 694). [ ] Avenue is just beyond the railway line running north-south immediately beyond Moat Road. My present address is [ ], and is 10-15 minutes walk from the site (see also page 694) [ ] is approximately five junctions down along London Road from [ ] Avenue. I frequently walk into East Grinstead from my home, I walk past the McDonald's site at least twice every day. I will be immediately affected by the development proposals. For example, I have concerns about personal safety as a pedestrian in that I will have to cross the entrance and exit to the site each time I walk to and from East Grinstead. I also have general concerns about the potential environmental impact on the area.

27. DELAY and LEGAL AID

I have also recently been advised that it may be open to the intended respondents to seek to argue that there has been some delay on my part in launching the present application, and that the application should be thrown out for this reason. I would say in response to this potential argument against me that I have made every attempt to deal with the matter expeditiously. Following the decision of the North Area Plans Sub-Committee on 7th November 1996, I contacted a solicitor as soon as I was able to do so. I am presently unemployed and do not have any material capital assets. Accordingly, I understand that I fall within the financial limits for full Legal Aid. An application for Legal Aid was made on my behalf following a consultation with my solicitor under the Green Form scheme. The decision of the Legal Aid Board was to refuse Legal Aid. An appeal was lodged against this decision, and I received notification in early February that the appeal had been rejected. I have been advised that, in the event of this application for leave being granted, a renewed application for Legal Aid on my behalf could be made, and that in a renewed application weight would be given to the decision of Mr Justice Sedley set out above on the question of standing, and to the expert evidence of Mr Keith Buchan regarding traffic issues. Neither the decision of Mr Justice Sedley nor the evidence of Mr Buchan were available to me at the time of the original application for Legal Aid, but would be material considerations to which weight would be given.

28. Unfortunately, the absence of Legal Aid, and the fact that the final notification of the refusal of Legal Aid did not reach me until less than a week before the three month time limit for judicial review applications was to expire, meant that I was unable to instruct solicitors to take any action on my part during that period. At the point at which Legal Aid was finally refused, I decided that the matter was sufficiently important that I should attempt to issue proceedings as a litigant in person. I was fortunate to obtain some assistance from friends and contacts on how to do this, resulting in the application now before this court. I have not at any stage, however, been able to obtain full and proper legal representation.

29. LETTER BEFORE ACTION

I have also been advised recently that it would be normal in such a case to send a letter before action to the intended respondents. I was not made aware of this practice until very recently, and can only ask the court to accept that the absence of such a letter, if this should be considered by the court to be a serious matter, was due not to any dilatoriness on my part, but to the absence of Legal Aid and therefore the absence of effective legal representation. At the point at which notice of refusal of Legal Aid was received by me in early February this year, it would have been too late for me to write as a litigant in person to the council in the terms of a letter before action, even had I known of the requirement to do so, which I did not, since I would not have been able to further delay launching these proceedings without then overriding the three month limitation period.

30. PRO BONO REPRESENTATION

I would add that since the launch of these proceedings in early February, strenuous efforts have been made to attempt to obtain pro bono representation. A number of organisations have been contacted which offer either free legal advice, and/or assistance in planning related matters. Unfortunately, many of these organisations offered assistance in specific areas only (eg. planning appeals) which were therefore not of assistance to me in this case. Yet others offered free initial consultations with fees negotiable thereafter. Unfortunately, my financial circumstances are such that even the payment of reduced fees was beyond my means and I was not therefore able to take up the possibility of representation on this basis either. Numerous campaigning groups were also contacted, but although they were interested in the case, none were able to offer the practical assistance I needed. It was only in the early part of last week that, as a result of the contacts made, I became aware of the existence of a national charity operating as a law centre called "Earthrights". Contact was made last Tuesday, 29 April 1997, with Mr John Dunkley, a solicitor for Earthrights, and I was able to meet with him the following day, Wednesday 30th April 1997. I was advised by Mr Dunkley on a number of points, including the issues regarding standing set out above. Earthrights agreed to act as my solicitor for the purposes of the hearing on 6th May 1997, with the intention of obtaining pro bono representation by counsel for the hearing. Accordingly, Earthrights went on the record as my solicitor, but it soon became clear that despite their best endeavours, it would not be possible for them to obtain such representation for me in the short time available to them. The position was made more difficult by it being a Bank Holiday weekend. Since Earthrights could not obtain representation by counsel for me, they were forced to withdraw from the case and have written to the court office accordingly. I remain a litigant in person at the present time.

31. NOTICE OF APPLICATION FOR LEAVE

Although I understand that applications for leave for judicial review are ex parte, I also now know that it would be good practice to have informed the intended respondents both of the launch of these proceedings, and of the hearing date. I understand that this is so, notwithstanding that I was also advised by the court office itself at the time of issue of these proceedings that there was no obligation to do so. Whilst this may be seen to be the preferred course of action, unfortunately financial considerations were again a material consideration. Clearly, I am at risk in costs in the event of this application for leave not succeeding. Whilst the matter remains on an ex parte basis, the only costs in question are my own, which are limited to actual disbursements and not to the costs of actual legal representation. I would not be in a position to meet the costs of the intended respondents in the event that they were to be represented on the hearing for leave, and accordingly it has seemed more prudent to leave the application on an ex parte basis. However, I would add that the matter has received considerable interest locally and has been covered in a number of issues of the local newspapers, the East Grinstead Observer and the East Grinstead Courier. I have also had contact with at least one member of the Mid-Sussex District Council and believe that the council is well aware that this application has been made. Indeed, newspaper reports stated that a private meeting of councillors and/or officers took place at which this application was discussed. That meeting did not take the form of a public committee or sub-committee hearing, and I do not know the outcome of it. I have, however, not been notified that the council intend in any way to respond to this application at the present time, nor have I been notified of or served with any affidavits in response.

32. PRESENT USER OF SITE

I would also add that at the time of this Affirmation, the White Lion continues in operation as a public house.

33. CONCLUSION

For the purposes of an application for leave for judicial review, I understand that the recognised test is whether there is a reasonable argument that the council acted irrationally or unreasonably. I would argue that the evidence of Mr Keith Buchan in particular shows manifestly there to be a reasonable argument that the failure of the council to consider whether there was a need for a Traffic Impact Assessment was on the face of it irrational. The council did not consider the implications of the fact that they were departing from the requirements of PPG 13 or from the government guidelines on Traffic Impact Assessment. This is material, I am advised, in the public law sense that had regard been given to these matters a different decision may have been taken, and I would draw the court's attention to the fact that the decision of the council was on a very narrow majority of 5 to 4. The primary point I am making, however, as set out above, is that the main failure was the failure to consider whether there was a need for a Traffic Impact Assessment. No consideration was given at all to this point, and no decision was taken on it. It follows, in my view, that if it was irrational for the council to fail; to address this preliminary point, the decision to grant planning permission without prior consideration of this point is also flawed and tainted by irrationality. I would argue that the absence of either a letter before action or formal notification of this case to the intended respondents does not affect this main point, and that the intended respondents would be unable to counter, for the purposes of a leave application, the evidence of Mr Keith Buchan as an expert witness to the effect that the council's decision-making process was irrational.

Other documents: Richard Tassell's 1st affirmation Richard Tassell's 2nd affirmation Richard Tassell's 3rd affirmation Affadavit of Ruth Gurny 1st Affadavit of Keith Buchan 2nd Affadavit of Keith Buchan Lessons from East Grinstead

AFFIRMED at )
) ......................................................
This day of May 1997 )

BEFORE ME......................................................................... ...............................
( A Solicitor / A Commissioner for Oaths / An Officer of the court )
( appointed by the Judge to take Affidavits )

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