| Deponent : Ruth Gurny|
Filed on behalf of : Applicant
No. of Affidavit : 1st
Date : June 1997
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
In the matter of an Application for Judicial Review
B E T W E E N :
- and -
MID-SUSSEX DISTRICT COUNCIL
- ex parte -
A F F I D A V I T
1. I make this Affidavit in support of an Application dated 6 February 1997 for Leave to Apply for Judicial Review of a decision of the North Area Plans Sub Committee of the Mid Sussex District Council (hereinafter referred to as the "MSDC") dated 7 November 1996. The matters deposed to herein are, save where it appears otherwise, within my own personal knowledge, and are true to the best of my knowledge and belief.
2. I am a qualified solicitor but am currently not practising. I met the Applicant in this matter through a mutual friend. I was notified on Monday 3 February 1997 that the Applicant's Appeal against refusal of Legal Aid in this matter had been rejected. I have since that time offered the Applicant from time to time, and on an informal basis, advice and assistance in the preparation and presentation of his case, including acting as a McKenzie Friend on his behalf at a first hearing of his Application for Leave in the High Court on 6 May 1997. I have not and do not represent the Applicant formally as his solicitor in these proceedings. I have, however, on a number of occasions made telephone calls on behalf of and with the authority of the Applicant. Details of a number of these telephone conversations are set out herein.
3. I refer to the First Affidavit of Susan Margaret Carter sworn 19 May 1997 and to the Exhibits thereto. I make particular reference first to Exhibit "SMC 2", a statement from Mr Richard Walker, Chief Planning Officer to the MSDC, dated 9 May 1997. I note that Mr Walker states that he conveyed the decision of the East Grinstead Town Council (hereinafter referred to as the "EGTC") to the MSDC, but that he does not state whether he conveyed the decision in full, or merely a summary thereof. He does, however, refer to his preparation notes, which refer to "highlights" of that decision, apparently indicating that it was his intention to report highlights of that decision only.
4. Mr Walker further states that he contacted Cllr Paul Johnson, (a Member of both the EGTC and the MSDC) after receipt of the Applicant's Affirmation. He states that the purpose of that call was to establish whether Cllr Johnson could recall the observations of the EGTC being reported to the MSDC. Mr Walker concludes that Cllr Johnson corroborates that those observations were reported.
5. I telephoned Cllr Johnson and spoke to him on 7 or 8 May 1997. In our conversation, Cllr Johnson advised me that Mr Walker had spoken to him about whether or not the EGTC decision had been reported to the MSDC. Cllr Johnson was very clear in advising me that he had no clear personal recollection of whether the matter had been reported. He advised me that he had noted on his Agenda papers that the EGTC recommended refusal, and therefore assumed that Mr Walker must have reported the matter. I queried however whether Cllr Johnson would have known of the decision of the EGTC in any event, and Cllr Johnson confirmed to me that he had been present at the EGTC meeting on 4 November 1996, and therefore knew of its decision first-hand by virtue of his attendance at that meeting. I enquired specifically of Cllr Johnson whether his notes on his Agenda papers could equally have been as a result of his personal knowledge of the decision of the EGTC as from any report made to the MSDC, and he clearly confirmed to me that his notes on the Agenda paper regarding the EGTC decision could indeed have been the result of his own personal knowledge and not the result of a report by Mr Walker or any other person to the MSDC. He also advised me that if anything had been said by Mr Walker on this point, he was certain that it had not been fully explained and had been a very brief reference.
6. I refer also to the second Affidavit of Susan Margaret Carter sworn on 17 June 1997, and Exhibits thereto. Exhibit "SMC(2)2" is a response from Cllr Sheila Thomson to a request for information as to her recollection of whether the EGTC decision of 4 November 1997 was reported to the MSDC on 7 November 1997. I telephoned Cllr Thomson and spoke to her on 8 May 1997 to enquire whether she recollected the decision of the EGTC being reported to the MSDC. Cllr Thomson advised me that she would have to take advice on whether she was allowed to discuss the matter with me, and would telephone me back. In the event, no return call was made to me. However, in her note dated 31 May 1997, which addresses the same point, Cllr Thomson does not refer to any personal recollection of whether the decision of the EGTC was reported, and she makes the point in her handwritten note that as she also attends pre-meetings, she is not sure when she was advised of the decision of the EGTC, nor of when she made the note. Cllr Thomson is not a member of the EGTC. She is however Chair of the MSDC, and was in the Chair at the meeting of the MSDC on 7 November 1996.
7. I refer also to Exhibit "SMC(2)3" and in particular to the unsigned note from Cllr Jean Farge dated 3 June 1997. Cllr Farge is a Member of both the EGTC and of the MSDC. She is also Chair of the EGTC, and was in the Chair at its meeting of 4 November 1996. She also would therefore have had knowledge of the decision of the EGTC in advance of the meeting of the MSDC on 7 November 1996. Although she states in her note that Mr Walker "..gave a very detailed description and explanation.." and "..an update..". Cllr Farge does not specifically address whether Mr Walker reported on the decision of the EGTC of 4 November 1996.
8. I refer also to the copy letter attached as item '5' to Exhibit "SMC 3" from Cllr Matthews. I telephoned Cllr Matthews and spoke to him on 8 May 1997. Cllr Matthews also is a Member of both the EGTC and the MSDC. He was in attendance at the EGTC meeting of 4 November 1996. Cllr Matthews advised me that he did not have any clear recollection as to whether the EGTC decision of 4 November 1996 had been reported to the MSDC. He enquired of me whether I had spoken to Cllr Johnson, and what his recollection was. He advised me that he trusted Cllr Johnson's recollection, and would support his position on the matter.
9. I refer next to the note from Cllr Christine Field dated 8 April 1997 also at Exhibit "SMC 3". Cllr Field refers to the report to Committee being made by Mr T Berkley. I am informed by Mr Tassell and believe that the matter had been dealt with up to this point by Mr Berkley, but that due to his absence on leave during the week of 7 November 1996, the report to the MSDC was given by Mr Walker in his place. Cllr Field is not a member of the EGTC.
10. I also refer to the letter from Cllr Gordon Phillips dated 14 April 1997 at Exhibit "SMC 3". Cllr Phillips also does not address whether the EGTC decision was reported to the MSDC.
11. I also refer to letter dated 16 April 1997 from Cllr Janette Wilson also at Exhibit "SMC 3". Cllr Wilson also does not report whether the EGTC decision was reported to the MSDC. She does report that a further petition that had been handed in had not been presented to the Committee. I spoke to Cllr Wilson by telephone on 9 May 1997. She advised me that she had very little recollection of any detail of the MSDC meeting at that time, and could not recollect there having been a second decision from the EGTC at all, nor whether any such decision had been reported to the MSDC on 7 November 1996. Cllr Wilson is a member of both the MSDC and the EGTC, and was present at the EGTC meeting on 4 November 1996.
12. I refer also to letter dated 16 April 1997 from Cllr Edye also at Exhibit "SMC 3". Cllr Edye also states that Mr Walker gave a "..very full.." verbal report, but does not address specifically whether Mr Walker reported the decision of the EGTC to the MSDC.
13. I refer also to the letter dated 5 April 1997 from Cllr Izard also at Exhibit "SMC 3". Cllr Izard does not specifically state whether he recollects Mr Walker reporting the decision of the EGTC of 4 November 19965, but he does state that he queried why the EGTC changed its mind. He does not report whether Mr Walker responded to this query, nor whether the MSDC was advised that the second EGTC decision was on an amended application. Cllr Izard expresses the view that planning decisions are purely a matter of personal opinion, and does not appear to have been advised of the statutory requirements governing decisions, nor of the relevance of government guidelines in relation thereto.
14. On 13 May 1997 I was asked by telephone by Ms Smita Edwards of Frere Cholmeley Bischoff, Solicitors to McDonald's, for details of the Applicant's Legal Aid applications. I did not have relevant details available at the time of that request. I spoke to Mr Tassell's former solicitor, Mr Rory Khilkoff-Boulding, of Khilkoff-Boulding & Co, by telephone on 16 May 1997. Mr Khilkoff- Boulding advised me that he had represented Mr Tassell in respect of a Legal Aid application for the purposes of seeking Leave for Judicial Review in respect of a decision of the MSDC of 7 November 1996. He was unable to advise me of the precise date when Mr Tassell first contacted him, but was able to confirm that he had first met Mr Tassell at his office on 20 November 1996. A Legal Aid application had ensued, and, following rejection of the initial application for Legal Aid, an Appeal had been lodged, which had also been rejected.
15. There is now produced and shown to me marked "RG 1" copy letter dated 9 December 1996 from the Legal Aid Area Office to Mr Tassell, in which notice is given of refusal of Legal Aid. There is further now produced and shown to me marked "RG 2" letter dated 18 December 1996 from Khilkoff-Boulding & Co on behalf of Mr Tassell to the Legal Aid Board, lodging an Appeal against refusal of Legal Aid, and setting out grounds of Appeal. There is further now produced and shown to me marked "RG 3" letter dated 7 January 1997 and marked "URGENT APPEAL" from Khilkoff- Boulding & Co to the Legal Aid Board, chasing for an urgent response on the Legal Aid Appeal. There is further now produced and shown to me marked "RG 4" letter dated 20 January 1997 from Khilkoff-Boulding & Co to the Legal Aid Board further requesting an urgent response to the Legal Aid Appeal.
16. There is now also produced and shown to me marked "RG 5" letter from the Legal Aid Board to Mr Tassell marked 9 January 1997. I am advised by Mr Tassell and verily believe that although the letter from the Legal Aid Board is shown marked 9 January 1997, it was in fact not sent to or received by him until early February 1997. I was contacted by a mutual friend of Mr Tassell on 3 February 1997 and told that Mr Tassell had just received notification of the decision to reject the Legal Aid Appeal. I made arrangements to meet with Mr Tassell, and met him for the first time on 5 February 1997. I then assisted him over the course of 5 & 6 February in the preparation of an Application for Leave for Judicial Review, and assisted him further in lodging the papers in the High Court in the afternoon of 6 February.
17. I refer now to bundle page 53 of the papers in this matter at Exhibit "RJT 4". The report states, inter alia, that " inspections have indicated that the implementation and use of the site at Burgess Hill has been generally satisfactory ...". The reference is to a "Drive Thru" McDonald's situated at Burgess Hill, which is also within the area of the MSDC, which granted planning permission, after an initial refusal, in or about 1994. There is now produced and shown to me marked "RG 6" an indexed bundle of papers relating to the Burgess Hill McDonald's site, and to its effects on local residents.
18. In particular, I refer to an application made by a Mr and Mrs Glover of 107 Station Road, East Grinstead by letter dated 6 February 1996 in which a reduction in Council Tax banding is sought principally because of what is described as "obnoxious odour" from the cooking at the McDonald's site near to them. The Glovers also complain of a number of unrelated minor problems which have caused them nuisance in support of their application for a reduced Council Tax banding. They however clearly state in their letter that in their view "..the local environment has fallen into decline, this is mainly due to the building of the McDonald's Drive Through fast food outlet." A Council Tax Adjustment Notice issued 15 April 1996 shows an adjustment downwards in value from Band D to Band C. The MSDC Council Tax explanatory notes show band D as having values of between £68,001- £88,000 and Band C having values of between £52,001-£68,000.
19. Notwithstanding that this matter was within the knowledge of the MSDC, the matter was not referred to in making comparisons between the up and running site at Burgess Hill and the proposed site at East Grinstead, with the report emphasising instead the areas where there is stated to have been an absence of serious problems at the Burgess Hill site.
20. I have also spoken to several members of the public who were present in the public gallery during that part of the meeting of the MSDC on 7 November 1997 which was concerned with the planning applications from McDonald's. It seemed to me from those conversations that there was a very strong view that the decision of the EGTC had not been reported to the MSDC. None I spoke to had any recollection of the EGTC decision having been reported. There was quite naturally some difficulty in people attempting to determine a negative, ie. whether the decision had definitely NOT been reported, as opposed to whether it had been. However, the view seemed to be that if it had been reported, it could only have been in the very briefest of terms, and those to whom I spoke were quite certain that it had not been reported in full in any event. Affidavits will be sworn and filed from a number of those who were present in the public gallery during the meeting on 7 November 1997 addressing this point. The EGTC itself had required that its decision of 4 November 1996 be reported to the MSDC in full.
( A Solicitor / A Commissioner for Oaths / An Officer of the
( appointed by the Judge to take Affidavits )
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