Hot Food Take-away
A recent case in the High Court provides an insight on how councils should approach applications for fast food outlets in the light of healthy eating campaigns.
A planning application for a material change of use from a grocery shop (class A1) to a hot food takeaway (class A5) was submitted to the London Borough of Tower Hamlets. The premises was close to a secondary school. The school ran a healthy living programme, which gave advice on healthy eating.
The planning application was assessed against the development plan. The development plan comprised both the London Plan and the Tower Hamlet's Unitary Development Plan (UDP). Neither the London Plan nor the UDP contained any policies which restricted hot food takeaways because of their proximity to schools. In addition, the council did not have any supplementary planning guidance on this issue and there is no national government planning guidance.
The planning officer's report to the planning committee stated:
"The following issues were raised in representations but they are not material to the determination of the application. The adjacent school is trying to promote healthy eating to its pupils, and the introduction of a takeaway establishment would encourage poor eating habits...While this is a valid concern, it is not a material planning consideration that can have weight in determining this application against council policy."
In April 2009, planning permission for the change of use was granted by the planning committee. The councillors in making the decision took into account the planning officer's advice and did not treat the closeness of the grocery shop to the school as a relevant issue in determining the planning application.
The argument put forward by the claimant in seeking judicial review of the decision was that the council did not take into account the proximity of the grocery shop to the school and the potential impact of the change of use on the school's attempts to encourage healthy eating by pupils.
The High Court stated that proximity of a hot food takeaway to a school was capable of being a material consideration since it relates to the use of land. When determining the planning application, the planning committee was wrongly advised by the planning officer, that the proximity of a hot food takeaway to the secondary school was not capable of being a material consideration.
It was for the planning committee to decide whether the proximity of the hot food takeaway to the school was a material consideration and, if so, what weight should be attached to it. It would not have been irrational for the council not to have taken it into account or to have attached limited weight to the matter.
The council had acted unlawfully and the planning permission was quashed. The council will now reconsider the planning application following this decision.
