Deponent : Richard John Tassell

Filed on behalf of : Applicant

No. of Affirmation : 1st

Date : 6th February 1997



In the matter of

B E T W E E N :


- and -


- ex parte -






1. I make this Affirmation in support of an Application dated 6th 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 Sub Cttee") dated 7th 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. By 2 letters, each dated 16th August 1996, copies of which are now produced and shown to me marked "RJT 1", 4 concurrent applications for planning permission were submitted by Ramm Brand, Architects, on behalf of McDonald's Restaurants Ltd (hereinafter referred to as "McDonald's"). Duplicate applications were submitted as GR/199/96 and GR/200/96, both of which sought planning permission for the conversion of the White Lion Public House, London Road, East Grinstead (with modifications) for use as a Drive-Thru McDonald's outlet. Further duplicate applications were submitted as GR/197/96 and GR/198/96, both of which sought planning permission for the demolition of the said White Lion Public House, and for the erection on that site of a "new build" McDonald's Drive-Thru outlet.

3. At a meeting of the Planning Committee of the East Grinstead Town Council (hereinafter referred to as "EGTC') held on 9th September 1996, the EGTC considered each of the above applications. The applications were subsequently considered again by the "EGTC' at a meeting on 4th November 1996. Copies of the minutes of each of those meetings are now produced and shown to me marked "RJT 2". The minutes show that at its first meeting, the EGTC agreed to recommend refusal of GR/197/96 and GR/198/96, but to recommend acceptance of GR/199/96 and GR/200/96. At its second meeting the EGTC agreed to reverse in part its earlier decision, and to recommend refusal of each of the 4 applications.

4. There is now produced and shown to me marked "RJT 3' a copy of letter Content-type: text/plain; charset=-ascii dated 5 November 1996 from the Town Clerk of EGTC to myself, in which the terms of the final determination of the EGTC on this matter is set out, in the following terms:-

"Recommend refusal. Committee believes that the increase in traffic which would be generated onto the A22 consequential upon this development would lead to an unacceptable increase in vehicular movements. It is considered that the pedestrian access is unacceptable, and would result in public safety hazards, and that vehicular movements in and out of the site would lead to major hazards. The committee was not convinced of the veracity of the traffic survey".

5. McDonald's did not pursue applications GR/197/96 and GR/198/96. Applications GR/199/96 and GR/200/96 were however pursued and were presented for consideration by the MSDC Sub Cttee at its meeting of 7th November 1996. Copies of the Agenda and Report presented to that meeting, together with the Minutes of the meeting, are now produced and shown to me marked "RJT 4".

6. The MSDC Report states that the observations of the EGTC on the proposals were that the EGTC "would support approval subject to West Sussex County Council's surveyor being satisfied as to the suitability of the access and egress proposed and to his being satisfied on all other Highway matters and subject also to the acceptability of the parking proposals".

As set out above, the position of the EGTC was in fact to oppose the said proposals. The MSDC Sub Cttee appears therefore to have materially misdirected itself as to the observations of the EGTC. I attended the meeting of the MSDC Sub Cttee. To the best of my recollection, I believe that this error was not rectified at any stage during the deliberations of the committee.

The Committee was not at any time, to the best of my knowledge and belief, at any time advised of the reversal of the EGTC recommendation.

7. There is now produced and shown to me marked "RJT 5" a copy of the Structure Plan of the West Sussex County Council (hereinafter referred to as 'WSCC'). I am informed and verily believe that the Local Development Plan for EGTC ("hereinafter referred to as the "Local Plan") was refused a certificate of conformity with the the Structure Plan, and that accordingly at all relevant times there has been no statutory Local Plan in force. I am further informed and verily believe that a Draft Local Plan and Draft Structure Plan are presently under review. I would respectfully submit that in considering planning applications the MSDC has a duty to take into account, inter alia, the provisions of the Local Plan. In the absence of any such Plan the MSDC may not be able properly to consider any planning applications to which reference to a Local Plan should be made. If the MSDC may proceed even in the absence of such a Plan, and I would respectfully submit that it may not properly do so, then it must in any event take into account on individual applications the requirements of the Structure Plan. I would submit that in considering the matters which are the subject of this Application, the MSDC has failed both to take into account a Local Plan (since one does not exist) and has further failed to take into account the provisions of the Structure Plan itself. In this respect, I would respectfully submit that the MSDC has fundamentally failed to discharge its basic obligations, both as a matter of procedure, and substantively. I will make further reference below.

8. MSDC had a duty to consider all relevant and material provisions from the Structure Plan. I would submit that it manifestly failed to do so. In particular, I would refer to the following matters:-

Paragraph T.14 of the Structure Plan, headed "Access Requirements for Development" provides, inter alia, that:-

"Development (including the use of land) will be required to be located, designed, and carried out so that it would

1. have safe and adequate access to the main road network;

2. cater safely and adequately for any vehicular traffic it would generate;

3. not reduce safety or worsen traffic conditions materially for existing highway users (or would incorporate satisfactory remedial measures);

4. be accessible by public transport and, where relevant, not reduce (and if possible improve) its operating efficiency;

5. have safe and adequate access for pedestrians, cyclists, and the disabled; and

6. include provision for parking and, if appropriate, loading space (except in some town centres and conservation areas where special provisions apply)."

I would respectfully submit that these matters were not considered, or were not properly or adequately considered, by the MSDC Sub-Cttee. The MSDC Sub-Cttee did not consider access to and egress from the proposed site, as required in T.14 (1) (above). The site is situated on the London Road (A22), midway between junctions with Moat Road and Beeching Way. This section of road is, to my own personal knowledge, extremely busy and dangerous. It is a dual-lane one-way system. It forms part of a gyratory system introduced some 20 years ago to provide an Inner Relief road to ease the burden of traffic through East Grinstead. The system is not commended locally, and is referred to unhappily as the "Dog's Breakfast". A copy map of the system is now produced and shown to me marked "RJT 6". The acknowledged problems and congestion on this road have been documented by several reports. Copies of the following relevant reports are now produced and shown to me marked "RJT 7".

(i) Extract from WSCC Traffic Survey on the East Grinstead area dated May 1990 (hereinafter referred to as the "1990 Report") pages 1-13.

(ii) Extract from County Surveyor's and County Planning officer's Report dated September 1991 (hereinafter referred to as the "1991 Report") pages 20-25.

(iii) Extract from WSCC Draft Transport Policy for 1997/8 (hereinafter referred to as the "1997/8 Report") page 137.

These documents clearly show the nature and extent of the traffic problems in East Grinstead generally, and in particular along the gyratory system of which London Road forms a part, and which is the main road abutting the proposed development site. I would respectfully ask the Court to referto these documents for their full terms and effects.

I am also informed and verily believe that a traffic survey was conducted following the opening of the Sainsbury's site at the south end of the gyratory system. I believe that the Sainsbury's site has now been operational for 2-3 years. The specific Sainsbury's Report produced evidence that 191 new traffic movements were generated solely by the Sainsbury's site during the test period. The study did not purport to survey any other traffic in the area.

None of the documents referred to above, or any of the facts and matters referred to therein, were brought to the attention of the MSDC Sub-Cttee, and I would therefore respectfully submit that the MSDC Sub-Cttee failed to address and/or consider matters which were fundamental to its own policy criteria and which, furthermore, any reasonable Council would consider relevant and material to the type of matter under consideration and these specific proposals.

9. Paragraph T.14 further requires (at page 32) that certain presumptions shall be made in considering planning applications. It is stated that:-

"There is a presumption against

(1) The formation of any means of access to a highway forming part of the Strategic or Supporting Network; or

(2) The intensification of the use of any existing access on this Network where the traffic capacity of the existing highway is being, or is near to being, exceeded."

The documents and facts and matters referred to in numbered paragraph (9) above reveal a high concentration of traffic on the relevant section of the London Road, and further show it to be an accident blackspot, being one of only five locations in the East Grinstead area shown to have substantially above national average accident rates. Further, the 1990 and 1991 Reports reveal that at the time of those reports the relevant road area was being used close to capacity. There has been acknowledged, although only estimated, growth in road use since those reports, and specific increases, noted above, due to the opening of a Sainsbury's store on a site situated on the gyratory system itself. These matters were not addressed by the MSDC Sub-Cttee, nor were the presumptions set out above taken into account or considered. It is clear from the documentation available, non of which was presented to the MSDC Sub-Cttee, that the traffic on the existing highway (ie. London Road between the Moat Road and Beeching Way junctions) must by this time already exceed, or be on the verge of exceeding, the designated traffic capacity. The presumption against intensification of use of the existing access to the proposed site should accordingly have been applied, but was not. No reasons were presented to the committee as to why the presumption should be rebutted in the particular circumstances of these Applications.

10. There is now produced and shown to me marked "RJT 8" a copy of Planning Policy Guidance PPG13 (hereinafter referred to as "PPG13"). As already stated above, there is no statutory local plan enforced in East Grinstead, and it therefore follows that the requirement in PPG13 to take into account the provisions of the local plan have not and could not have been complied with. If a planning decision may properly be taken in the absence of such a plan, it is clear that the Council must take into account the provisions of PPG13 in considering individual applications. I would respectfully submit that, on a number of material accounts, the MSDC Sub-Cttee failed so to do. I refer in particular to those provisions in the body of PPG13 relating to parking, cycling and pedestrians. I refer also in this connection to section 6 on Transport Priorities and Access to Developments. In all these areas, I would submit that the MSDC Sub- Cttee has conflicted to a material extent with the substantive guidance. I would submit that the MSDC Sub-Cttee has failed to consider any of the relevant provisions adequately or at all. Further, in strictly procedural terms, paragraph 6 of Annex B to PPG13 requires consultation with the relevant Highway Authority before planning applications may be decided in circumstances where the conditions of Paragraph 2(b) to Annex B are met.

Paragraph 2(b) provides that such circumstances includes

"any other development which appears to the local planning authority to be likely to result in a material increase in the volume or material change in the character or traffic entering or leaving a classified...road...".

Paragraph 4 gives guidelines that such an increase in traffic movements of 5% will be considered in most cases to be a material increase. It is clear that the increase in access/egress estimated for the new use as opposed to existing use substantially exceeds 5%. From my own observations over a period of time, I have estimated that no more than an average of 10 cars are parked during a normal evening in the pub car park. Vehicles parked normally remain for lengthy periods and there is therefore little movement in and out. This very low vehicle movement rate compares to the maximum traffic movements at peak time of 79 entries and 75 exits, a total of 154 traffic movements per hour. Accordingly, it would seem clear that there should without doubt have been a reference to the West Sussex Highways Authority. No such reference or consultation has been undertaken. I would respectfully submit that this amounts to a substantial and procedural irregularity.

11. There is now produced and shown to me marked "RJT 9" an extract from the Institute of Highways and Transportation Guidance on Traffic Impact Assessment of Development Proposals, pages 15-17. In accordance with these provisions, and in particular paragraph 8, it is recommended that a TIA should normally be produced where either

"traffic to and from the development exceeds 10% of the two-way traffic flow on the adjoining highway" or "traffic to and from the development exceeds 5% of the two-way traffic flow on the adjoining highway, where traffic congestion exists or will exist within the assessment period or in other sensitive locations."

On the figures provided by McDonald's, there will be a maximum of 154 (79 + 75) such traffic movements during peak trading hours. London Road is the adjoining highway with dual-lane one-way traffic. I am advised and verily believe that the relevant total traffic flow for consideration will be taken as being the total flow of the dual-lane one-way traffic along the relevant stretch of the London Road. Again, according to McDonald's own figures (which for reasons set out herein I will submit may be materially under-estimated), the relevant percentage would be calculated by taking the 154 traffic movements as a percentage of the total hourly traffic flow during the same period. The 154 traffic movements represent McDonald's estimated Friday evening trading peak between 7pm and 8pm (see paragraph 2.10 at page 3 of the ADL Traffic Engineering Limited Report). That same report does not give the estimated traffic flow between 7pm and 8pm. However, at paragraph 3.5 of page 6 of the report, McDonald's estimate a possible traffic flow of 1585 vehicles between 4pm and 5pm, and 1916 vehicles between 5pm and 6pm. Maximum traffic movements as a percentage of either these traffic flow estimates clearly exceeds 5% in any event. 154 is 9.7% of 1585 and 8% of 1916.

It is well established that there is traffic congestion in the area and that accordingly it is the 5% figure that must be the relevant benchmark in determining whether there is a requirement for a full TIA under the above guidelines. I would respectfully submit that there was a requirement for a full TIA, and that since no TIA was undertaken the MSDC Sub-Cttee again failed to follow proper procedures, and also failed to consider the relevant substantive matters that a full TIA would have covered. It therefore follows that the MSDC Sub-Cttee was not in a position properly to consider the applications before it, and that its purported determination of these matters was both procedurally and substantively irregular.

12. I have mentioned above that I consider that the McDonald's figures may be inaccurate. One of the reasons for my concern in this regard is the fact that the traffic count on which McDonald's purport to rely was taken on Thursday 16th May 1990. Not only is this information now very much out of date, (that in itself being, I would submit, a very compelling ground for a full TIA to be prepared) but the figures relate to a Thursday evening traffic flow, whereas McDonald's have specifically chosen a Friday evening peak trading period. These inconsistencies inevitably make the already out of date figures even less reliable than they may otherwise be, and again point to the desirability if not necessity of a full TIA being conducted at the present time.

Further concerns regarding the figures used by McDonald's in the ADL Report concern the repeated use of the 1.04% traffic increase figure. I would respectfully submit that this figure must be incorrect for a number of reasons, and that it has not been calculated on the basis of any criteria set out in either PG13, the TIA Guidance, or any other relevant or established planning basis. ll relevant criteria in both PPG13 and the TIA Guidance refer to "traffic movements to and from the site". In other words, the calculation must show the combined total of the number of vehicles entering the site from the main road plus the number of vehicles re-entering the main road from the site. McDonald's have not used such a figure. The figure that McDonald's have used, incorrectly, and the place of this figure, is an estimate made by McDonald's of the actual number of vehicle journeys that will be new journeys generated solely for the purpose of a visit to the new McDonald's site. It is estimated by McDonald's, according to the ADL Report, that 34% of visits to their outlets are of the "x to McDonald's to x" variety, and that the remaining 66% of visits to their outlets comprise part of a journey involving stops elsewhere. McDonald's have taken the estimated lower number of 59 vehicles entering the outlet, and, taking 34% of that quite arbitrary number of vehicles, claim that the new McDonald's site will have no traffic implications other than 20 "new" vehicles per hour. 20 vehicles then seems to have been taken by McDonald's for the purpose of these calculations as a percentage of the highest estimated traffic flow to produce a supposed percentage impact of 1.04%. This calculation, however, is not the calculation required by any of the planning guidelines. It is moreover internally inconsistent in that McDonald's have taken a relatively low number of estimated vehicle site visits compared to the very highest traffic flow rate along London Road.

It follows from the above that the MSDC have not, at any time, considered the impact of relevant traffic movements as set out in the planning guidelines, nor were such details in the Report Committee or presented verbally at the meeting. The County Surveyor has instead, mistakenly, taken the 1.04% figure to denote traffic impact, and has therefore concluded the increase was "not material". I would submit that the County Surveyor accordingly materially misdirected the committee in this respect. I would further submit that in the context of a road which has reached or is on the verge of reaching full capacity, any increase at all must be considered to be material, and should at least be considered by the committee in this connection.

13. I further respectfully submit that the comparitors used by McDonald's are seriously flawed in any event, for the following reasons. In assessing the likely customer numbers for the new outlet, McDonald's looked at two sites in particular. One of these sites was at Hounslow, where the site was an ordinary sit-in outlet and not a Drive-Thru. I would submit that no useful comparison could therefore be made and it was unsafe to rely on such data. The second comparitor site is situated at Northolt adjacent to a Texaco garage. Again the impact of the Texaco garage would have seriously affected the data collected, which again undermines the reliability of McDonald's analysis. There are other McDonald's sites which would have been more directly comparable, such as the McDonald's outlet at Dagenham, but this was not considered. It is also worth noting that McDonald's did not seek to provide data derived from all their Drive-Thru outlets in this country. The selective use of incompatible data is likely to produce unreliable and misleading results. MSDC Sub-Cttee did not take any steps to attempt to verify the data in any way whatsoever, notwithstanding that the EGTC had expressly recommended that it was not convinced of the veracity of McDonald's traffic survey. Again, I would submit that the only reliable way to have properly assessed such matters would have been through the normal route of a full TIA.

14. The nature of the relevant section of the London Road, and of the manner and effect of its intersections with the gyratory system, has not been considered by the MSDC Sub-Cttee. From my own personal knowledge as a local resident, living a few minutes' walk from the site area, I know that the traffic in the relevant area is heavy and congested. Moreover, there is a constant tendency to weave between the two lanes in order to adjust to the demands of the gyratory system. Such inter-lane movement will inevitably be exacerbated by the increased traffic movements to and from the proposed site. These matters are also referred to in a letter from Councillor Paul Johnson to myself dated 6th December 1996, a copy of which is now produced and shown to me marked "RJT 11". These matters and concerns were not referred to in the Report before Committee.

In so far as increase in traffic movement will increase the hazard to pedestrians and cyclists, this again was ignored by Committee on the basis of the 1.04% figure being deemed to be "not material". As above, the 1.04% figure is not the correct figure, the percentage increase probably being between 8% and 9%. Even in the absence of PPG13 or TIA guidelines, such an increase in traffic movements crossing the pavement and the normal route for cyclists must be a relevant consideration and should have been considered by the Committee.

15. I would respectfully also refer to the following facts and matters:-

(i) The planning applications have not been approved by the West Sussex Police Authority, who have stated a preference for "new-build" over "re- use";

(ii) There has been no consultation with the local fire authority;

(iii) In relation to litter, there is substantial evidence available that McDonald's do not in general effectively prevent litter from their products being found at street level. And there is further evidence available that "litter patrols", although promised, do not materialise. I have personally seen litter from McDonald's in the East Grinstead area.

(iv) With regard to recycling, McDonald's have historically paid lip service to this principle, but in recent High Court litigation have given evidence that materials collected for recycling are dumped rather than recycled.

(v) To my personal knowledge, there is an existing problem with on-going illegal street parking on London Road close to the proposed site. There is clearly a risk of exacerbation of this problem.

The above matters were not considered by Committee.

16. There are now produced and shown to me marked "RJT 12" copies of the following documents:-

(i) WSCC internal memorandum dated 28th October 1996 (4 pages);

(ii) Letter from Richard Tassell to MSDC dated 1st November 1996 (2 pages);

(iii) Letter from Mr D Hill to Mr Hatton (Chief Executive of MSDC) dated November 1996 (2 pages);

(iv) Submission from Richard Tassell to Members of MSDC Sub-Cttee dated 2nd November 1996 (6 pages);

(v) Letter from Richard Tassell to Cllr Johnson dated 6th November 1996 (1 page);

(iv) Letter from McDonald's to MSDC dated 7th November 1996 (2 pages);

(vii) Report from the ADL Traffic Engineering Limited.

I would respectfully ask this Honourable Court to consider the contents of these documents which I submit bear on the matters and arguments set out herein.

17. I am informed and verily believe that the proposed purchase of the While Lion public house by McDonald's has not yet been completed, and that the public house remains open for business as usual at the present time with no date fixed for closure. I am further informed and verily believe that an entry on the Land Register currently prevents any dealings in the property. I refer to this matter solely for the purposes of indicating that McDonald's will not suffer any prejudice as a consequence of any decision by this Honourable Court at this time to quash the decision of MSDC Sub-Cttee, as there is no immediate prospect of the proposed development being commenced at the present time.

18. I also respectfully submit that the closeness of the voting of the MSDC Sub-Cttee on this matter, where the resolution was carried 5 to 4, further indicates that any unreliability both procedurally and substantively should be considered as having been capable of having had a material contribution to the determination by the Sub-Cttee.

19. I would accordingly respectfully ask this Honourable Court to find that in the light of the matters referred to and set out herein, the decision of the MSDC Sub-Cttee of 7th November 1996 was unsafe and unreliable, and flawed both procedurally and substantively and should accordingly be quashed and set aside. Accordingly, I respectfully ask the court to make the appropriate Order in these terms.

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

    ) ......................................................
    This 6th day of February 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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