Relationship between food environment and planning system: research summary

The application was for the formation of a hot food takeaway within the recently erected commercial units at Staiside Court, Bonnyrigg.

Committee Report

The Officer recommendation was to grant planning permission subject to conditions. The committee report (para 8.8) which accompanied the recommendation noted the following with regard to representation made on the grounds of the proximity of the proposed hot food takeaway to the Lasswade High School:

“With regard to the representor’s comments about the potential customers of the hot food takeaway being from the nearby school, this is not a material planning consideration. Therefore it would not be reasonable to restrict the hours of operation outwith the school lunchtime.”

Planning Committee Decision

The Planning Application however was refused at Planning Committee. Section 5 (Page 4-292) of the Committee Meeting Minute States:

“The Committee, having heard from the Planning Manager, discussed the potential impact of the proposed development and whether the proposals complied with development plan policies or if there where material planning considerations that indicated otherwise. It was noted that the representations and consultation responses received were material considerations. The loss of a unit for the approved Class uses and the impact on neighbouring properties, in particular the Lasswade High School where the Council operated a policy promoting healthy life styles and healthy eating, were also discussed.”

Reason for Refusal

The decision notice included the following as the third reason for refusal:

“The proposed development’s location in close proximity to the Lasswade High School is contrary to the Council’s Corporate objectives of promoting healthy life styles and healthy eating at its schools. This is a significant material consideration which outweighs any planning argument to support the proposed development.”

Planning Appeal: Ref PPA-290-2035

The Appeal against the decision by Midlothian Council was allowed however and planning permission was granted subject to six conditions.

Reasoning

With respect to reason for refusal number 3, paragraph 8 of the Appeal Decision Notice states:

“Turning to the last reason for refusal, the proximity of the Lasswade High School and the impact of a hot food takeaway on the implementation of the Council’s corporate objectives for healthy eating, the key issue is whether this is an appropriate material consideration. The promotion of heathy eating habits, particularly amongst the young, as part of a programme to tackle obesity and generally improve health, is government policy. I accept that it also forms one of the Council’s corporate objectives. A material consideration as defined in planning regulations must however relate to the site and the specific impact of the development on planning related matters. In terms of the policies of the development plan there is no clearly established relationship between healthy eating and the location of hot food takeaways. In the absence of such criteria I cannot give weight to it as a material planning consideration. Similarly, in the absence of such criteria a restriction of opening hours to prevent use by lunchtime school students would not be reasonable under the requirements of Circular 4/1998 The Use of Conditions in Planning Permissions.”

The Reporter notes that although promotion of healthy eating habits, particularly amongst the young, as part of a programme to tackle obesity and generally improve health, is government policy and forms one of the Council’s corporate objectives, it is not a robust material consideration in planning terms. The Reporter further notes that a material consideration in planning terms, as defined by regulation, must relate to the site and the specific impact of the development on planning related matters.

The Reporter concludes that there is no clearly established relationship between healthy eating and the location of hot food takeaways as such weight was not given to the Council’s refusal of the application and similarly a condition restricting hours of opening would not meet the test of reasonableness of Circular 4/1998 The Use of Conditions in Planning Permissions.

The application was for the erection of a restaurant with drive through facility and petrol filling station shop (24 hours) with associated works and car parking.

Committee Report

The Officer recommendation was to grant planning permission subject to conditions. 16 representations were received and the officer acknowledged them individually. Those of note to this research project are as follows:

Representation: Opposed to a McDonalds drive through and there is an overprovision of hot food takeaways in the area.

Comment from Officer: The proposed occupier of the development is not a material planning consideration, as the application is for a restaurant and a shop. Planning legislation does not permit the planning authority to restrict the type of operator except within use classes, as defined in the Town and Country Planning (Use Classes) (Scotland) Order 1997. The over provision of hot food takeaways in an area is not a material planning consideration, unless there is a clustering of such uses. As addressed above, the proposal would not result in a clustering of hot food takeaways.

Representation: The proposal for a drive through restaurant is located close to both the Toryglen football facility and local schools, raising concerns regarding health and fitness of pupils.

Comment from Officer: Health and fitness are not material planning considerations.

Planning Committee Decision

The Planning Application was approved at Committee. No further information on the discussions held noted within the Committee Meeting Minute.

This case confirms that a public misconception exists that certain restaurants are Hot Food Takeaways in planning terms i.e. they ought to be considered Sui Generis under the Use Class Order and that such restrictions should apply. The officer clarifies however that the proposed development constitutes a Restaurant (Class 3) and not a hot food takeaway. As such, the restriction on clustering or other hot food takeaway considerations would not apply, even if they were relevant to the merits of the proposed development.

It should be noted that although the proposed development would likely contain a take away element this would be ancillary to the main use of the facility as a restaurant (Class 3). The typical hot food takeaway planning restrictions would therefore not apply to the development proposed. Indeed the introduction of additional planning measures relevant to the control of the food environment specific to hot food take away facilities (sui generis) would not impact upon such facilities which are considered restaurants in the use class order (Class 3).

The pertinent issue of whether health is a material consideration is also referred to in the officer’s decision. The officer notes that health and fitness are not a material consideration in the determination of the application. As detail is not provided it is assumed that this consideration is based on the absence of local planning policy or guidance to that effect.

The application was for the change of use of a property from retail (Use Class A1) to takeaway (Use Class A5).

Officer Recommendation

The Planning Application was refused by Delegated Decision.

Reason for Refusal

The reason for refusal as noted in the Decision Notice is:

“The proposed use does not meet the criteria of Policy DM3.7 of the Local Plan (2017). The unit is located in a ward where more than 15% of year 6 pupils are classified as very overweight and more than 10% of reception year pupils are classified as very overweight. As such the proposed use would cause significant harm to the health of residents in the area and is contrary to Policy DM3.7 of the Local Plan (2017) and NPPF.”

The refusal was based on the following policy which is included within the North Tyneside Local Plan, adopted July 2017:

DM3.7 Hot Food Take-aways

Proposals for A5 hot food take-aways will be permitted unless:

a) It would result in a clustering of A5 uses to the detriment of the character, function, vitality and viability of the defined centres or it would have an adverse impact on the standard of amenity for existing and future occupants of adjacent land and buildings.

b) There are two or more consecutive A5 uses in any one length of frontage. Where A5 uses already exist in any length of frontage, a gap of at least two non A5 use shall be required before a further A5 use will be permitted in the same length of frontage.

To promote healthier communities, the Council will:

c) Prevent the development of A5 use within a 400m radius of entry points to all middle and secondary schools, as shown on the Policies Map.

d) Prevent the development of A5 use in wards where there is more than 15% of the year 6 pupils or 10% of reception pupils classified as very overweight*.

e) Assess on an individual basis, the impact hot food take-aways have on the well-being of residents.

* Data available within the ‘Public Health Evidence for control of Hot Food Takeaways’: http://www.northtyneside.gov.uk/pls/portal/NTC_PSCM.PSCM_Web.download?p_ID=563031

Policy DM3.7 Hot Food Take-aways was supported (following modifications) by the Planning Inspector’s Report in May 2017 noting the policy as “measured policy response given the severity of the health issue”.

Planning Appeal: APP/W4515/W/17/3184901

An appeal was lodged against the decision by North Tyneside Council and subsequently dismissed.

Summary Appellant Comment

1. The Appellant emphasised that the proposal would sell healthy food as demonstrated by the operation of her business elsewhere. The appellant also states that the target customer base is not school children, as reflected in the location of the property and the intended pricing of food. The Appellant suggested that planning permission be granted subject to a personal condition to ensure that no unhealthy takeaway use could open in the future.

2. The Appellant made reference to a planning permission granted by the London Borough of Barking and Dagenham where a personal condition was used in relation to a business selling healthy food.

3. The Appellant made reference to Gateshead Council which requires the submission of a ‘health impact assessment’ so that applicants can demonstrate that a proposal would not have a negative impact.

4. The appellant states that a precedent has been set for a hot food takeaway in this location as there are nearby businesses such as Greggs and an Eat@ which serve hot food.

Inspector Response to Appellant Comment

1. Notwithstanding the intentions of the appellant to sell healthy food, there is no guarantee that this business model would continue into the future. Whilst the appellant contends that a change to the business model would be unrealistic, it is not an unreasonable prospect that pressures on the business could lead to a change in the nature of the food sold despite the current best intentions of the appellant. Furthermore, a personal condition would not control the nature of the food sold and I note that the appellant does not ask for the menu to be controlled by the planning system, even if this were possible.

2. Consideration of that planning permission does not lead me to a different conclusion on the appropriateness of a personal condition in relation to the appeal before me.

3. Whilst North Tyneside Council do not require this evidence, I am not persuaded that the conclusions of such an assessment on the matter of healthy food could be enforced through the use of a personal condition for the reasons stated above.

4. On the basis of the evidence before me, these units have planning permission for A1 or A3 uses and are therefore materially different from the current proposal which I have determined on its own merits.

Inspector’s Overall Reasoning

“The proposal would lead to the development of an A5 HFT in a ward which exceeds the thresholds of Policy DM3.7(d) of the LP. I have had regard to the individual circumstances of the proposal as emphasised by the appellant in respect of Policy DM3.7(e), but I do not consider that these circumstances can be ensured by an appropriate condition and therefore they do not outweigh the clear conflict with Policy DM3.7(d). I therefore conclude that the proposal would be contrary to Policy DM3.7 of the LP which seeks to promote healthier communities, and the policies of the Framework in respect of health and well-being.”

The Inspector dismissed the appeal on the basis that the proposed development was contrary to North Tyneside Metropolitan Borough Council’s policy DM3.7 on Hot Food Take-aways which seeks to promote healthier communities, and the policies of the Framework in respect of health and well-being.

It should be noted that, through the Local Plan Examination process, the policy was considered a measured policy response given the severity of the health issues within the Council area. The evidence base for the policy included a report which set out the severity of the health issue (North Tyneside Council, Public Health Evidence in relation to the use of the planning system to control Hot Food Takeaways, November 2015).

The application was for the change of use from retail (Use Class A1) to takeaway (Use Class A5).

Officer Recommendation

The Planning Application was refused by Delegated Decision.

Reason for Refusal

The reason for refusal as noted in the Decision Notice is:

“The proposed use does not meet the criteria of emerging Policy DM3.7 of the Local Plan Pre-Submission Draft as submitted with main modifications. The proposal would result in two consecutive A5 uses in the length of shopping frontage and is also located in a ward where more than 15% of the year 6 pupils are very obese. As such the proposed use would cause significant harm to the health of residents in the area and is contrary to emerging Policy DM3.7 of the Local Plan Pre Submission Draft and NPPF.”

The Recommendation Report noted:

“North Tyneside Council has also produced the following document, ‘Public Health Evidence in relation to the use of the planning system to control Hot Food Takeaways (November 2015)’. This document has not been formerly adopted by the Council as an SPD. Although it is publicly accessible and it provides the evidence base upon which Public Health base their objection. This document advises that an important contributing factor to poor diet and health in certain parts of North Tyneside is the distribution and access to unhealthy eating outlets. The hot food takeaway policies have been implemented in order to help control the proliferation of and therefore access to, such uses. This document has carried out an analysis of the concentration of the 197 hot food takeaways in North Tyneside by ward, including the rate per 100,000 of population has been undertaken to facilitate a comparison with the national average rate of 86/100, 000. There are eight wards where the concentration of hot food takeaways exceeds the national average, including Wallsend. This ward would not be considered favourably for an A5 use class.”

The Appeal against the decision by North Tyneside Council was dismissed.

Reasoning

The Appeal Decision notes that:

The proposal would further extend the reach and availability of such foods and add to an existing proliferation of A5 HFTA uses within the High Street East frontage. It would do so in a ward where over 15% of Year 6 children are classed as very overweight. The proposal would therefore fail to promote healthier communities and be in conflict with the health and wellbeing, health protection and healthy community aims of the Framework and LP policy DM3.7.

The Inspector dismissed the appeal on the basis that the proposed development was contrary to North Tyneside Metropolitan Borough Council’s policy DM3.7 on Hot Food Take-aways which seeks to promote healthier communities, and the policies of the Framework in respect of health and well-being.

It should be noted that, through the Local Plan Examination process, the policy was considered a measured policy response given the severity of the health issues within the Council area. The evidence base for the policy included a report which set out the severity of the health issue (North Tyneside Council, Public Health Evidence in relation to the use of the planning system to control Hot Food Takeaways, November 2015).

The application was for the continuance of use of shop as hot food takeaway (Class A5).

Officer Recommendation

Officers recommended the application for refusal on the grounds that the hot food take-away was contrary to the Council's Supplementary Planning Document (SPD): 'Saturation Point - Addressing the Health Impacts of Hot Food Takeaways' and would be likely to have a detrimental impact upon the health and well being of residents of the Borough.

Development Control Board

Members were persuaded that the food sold was of a healthy nature and not aimed at school children and therefore agreed to grant planning permission subject to the completion of an agreement under Section 106 of the Town and Country Planning Act in respect of a contribution of £1,000 to be used towards initiatives to tackle childhood obesity and the imposition of conditions.

Reason for Approval

The Minute of the Development Control Board Meeting noted:

“With regard to the principle of the use it is accepted that the current food offering is relatively healthy and is not aimed at school children. When Members considered the application previously they imposed a condition making the permission personal to the applicant to seek to ensure that the premises were not operated in a manner that offered a less healthy menu. Whilst there is no guarantee that the applicant will not offer less healthy options in the future it seems likely that he will maintain the current food offering since the use has been operating since September 2011.

Permission was previously granted for a 5 year period until 31 May 2018 in order to review the health impacts of the development. The use has now been operating for over 4 years and it is considered that this is sufficient time to make a final decision on this matter. Accordingly a permanent permission is recommended.”

The planning committee sought to approve the application with strict controls around opening times noting a personalised consent to control to the type of food sold in order to ensure healthy food options restricting the means of cooking to reheating by microwave only. The personalised nature of the consent sought to approve the takeaway use albeit restrict the type of food sold. It is unlikely however that this would be effective as the type of food sold could change without the facility being in breach of the relevant planning consent given the absence or limited planning control over the type of food prepared and sold.

The application was to change the use to A5, the erection of a new shop front and an extract duct to the rear.

Officer Recommendation

The Planning Application was refused by Delegated Decision.

Reason for Refusal

The second reason for refusal as noted in the Decision Notice is:

2. The proposed use is sited within the hot food takeaway exclusion zone by virtue of being within 400 metres of a school and would have a detrimental impact upon the health and well being of residents of the Borough contrary to advice contained with the Draft Supplementary Document ‘Saturation Point – Addressing the health impacts of hot food takeaways’ which forms part of the Local Development Framework.

Planning Appeal: APP/Z5060/A/10/2136264

The Appeal against the decision by London Borough of Barking and Dagenham Council was dismissed.

Reasoning

The Appeal Decision notes that:

“The main issues are, firstly, the effect on vitality and viability of the Dagenham Heathway District Centre and, secondly, the effect on health and well being of local residents……

The site is in a Hot Food Takeaway Exclusion Zone in the Council’s ‘Saturation Point’ Supplementary Planning Document (SDP) because it is within a radial distance of 400m from Parsloes Primary School. Although there is no reason to doubt the appellant’s submission that its lunch menus include pizza, Parsloes Primary School has been awarded Healthy Schools Status. The SDP is part of the Council’s strategy to tackle obesity in the Borough. It relates to the London Plan and to the policies in the CS and the BWP. It was adopted in 2010 following public consultation and is, therefore, an important material consideration. I accept that there are other hot food takeaways between the school and the site, but the site is within about 5 minutes walk from the school.

The appellant submits that the nutritional qualities of Domino’s Pizzas differ from other takeaway foods as they are oven baked and low fat cheese is an option. Furthermore, the appellant’s business model does not include children’s portions or toys, but these are not matters which could be effectively controlled by conditions.

Nonetheless, the appellant is willing to accept a condition requiring its counter service to close between 15.00hours and 16.30hours each afternoon on schooldays. If enforced, it would prevent over-the-counter sales to parents and children immediately after school, although telephone and internet sales would not be affected. As such, it would have a neutral effect on the health and well being of local residents, but would further harm the vitality of the shopping frontage.”

Through appeal decision the Inspector has concluded that the Council’s SPD, on which the decision is based, is part of the Council’s strategy to tackle obesity in the Borough and relates back to the London Plan policies as an important material consideration and therefore the Council’s reason for refusal stands:

“that the proposed use is sited within the hot food takeaway exclusion zone by virtue of being within 400 metres of a school and would have a detrimental impact upon the health and well being of residents of the Borough contrary to advice contained with the Draft Supplementary Document ‘Saturation Point.”

The development proposed is change of use from A2 to A5 takeaway.

Officer Recommendation

The Planning Application was refused by Delegated Decision.

Reason for Refusal

The reason for refusal as noted in the Decision Notice is:

The proposed development, by virtue of its location, within 400 metres of a primary school, is contrary to the Council’s Local Development Framework Supplementary Planning Document ‘Saturation Point – Addressing the Health Impacts of Hot Food Take-Aways’ and would be likely to have a detrimental impact upon health and well being of residents of the Borough.

Planning Appeal: APP/Z5060/A/11/2167225

The Appeal against the decision by London Borough of Barking and Dagenham Council was allowed subject to 6 conditions.

Reasoning

The Appeal Decision Notice noted:

The appeal site is within 400m of Northbury Infant and Junior Schools which the SPD indicates is a 5 minute walking distance. However, this appears to be an “as the crow flies” measurement. Whilst the 400m radial distance is a useful guideline, it is also necessary to consider site specific factors. My observations were that the actual journey time from the schools to the appeal site when walking along the roads would take considerably longer than 5 minutes. Routes from the school to the appeal premises are limited. They require crossing Underground lines and a railway line, potentially by using a little used pedestrian bridge, and traversing busy roads and complex traffic junctions. Such routes would in my view be unlikely to be used by unaccompanied children of infant and junior school age.

Furthermore, the most likely routes would pass a number of hot food outlets including those in Barking Town Centre and the Vicarage Field Shopping Centre. Thus there would be many opportunities to buy fast food elsewhere on the journey. The evidence is not convincing that the appeal site would attract custom from pupils of the identified schools, whether or not they were accompanied by their parents. It is concluded that in this case, the site specific material considerations outweigh the conflict with the SPD.

The appellant suggests that the business could be closed between 1500 and 1600 hrs, presumably to coincide with the time that most pupils leave school, to address the Council's concerns. However as the Council indicated, this would reduce the level of activity within the Neighbourhood Centre to the detriment of its vitality and viability and would conflict with the requirements of the Council's LDF Core Strategy Policy CE1. The Council have referred to an

appeal decision (APP/Z5060/A/10/2136264) in which the Inspector also addressed the inappropriateness of such a condition. I am not convinced that this approach would meet the tests set out in Circular 11/95 The Use of Conditions in Planning Permissions.

In this case despite the presence of an SPD, which restricted the introduction of hot food takeaways within a defined proximity of primary schools, the Inspector concluded that the appeal should be allowed given the site specific material considerations of the proposed development. The Council’s restriction on hot food takeaways (Class A5) within 400 metres of primary schools was based on a walking time of five minutes. The Inspector noted however that actual journey time from the schools to the appeal site when walking along the roads would take considerably longer than 5 minutes. Furthermore, given that the most likely routes would pass a number of hot food outlets, including those in Barking Town Centre and the Vicarage Field Shopping Centre, there would be many opportunities to buy fast food elsewhere on the journey. The Inspector therefore concluded that the evidence is not convincing as the appeal site would attract custom from pupils of the identified schools, whether or not they were accompanied by their parents.

The application was for the subdivision and change of use to create retail/office (Class A1/A2) and a hot food takeaway (Class A5).

Officer Recommendation

The Planning Application was refused by Delegated Decision.

Reason for Refusal

One of the reasons for refusal as noted in the Decision Notice is:

1. The proposed A5 takeaway use would provide access to cheap and unhealthy food and fail to promote healthy lifestyles and to reduce health inequalities in the borough and is therefore contrary to Policy 3.2 of The London Plan 2011, and Policies S1, S6, SP1, SP2 and SP3 of the Newham Core Strategy 2012.

Planning Appeal: APP/G5750/A/14/2216552

The Appeal against the decision by London Borough of Newham Council was allowed subject to 4 conditions.

Reasoning

The Appeal Decision Notice noted:

“Policy SP2 of the Core Strategy sets out the need to promote healthy lifestyles, reduce health inequalities and promote healthy eating through taking into consideration the cumulative impact of A5 Hot Food Takeaways. The London Plan at Policy 3.2 promotes similar health initiatives.

The supporting text to Core Strategy Policy SP2 notes that a recent study recommended a 400m exclusion zone around existing or proposed secondary schools citing the access to takeaway food by young people as influences on diet and health at an early age. I have not been made aware of any existing or proposed secondary schools within this exclusion zone. The Council do however cite the presence of nearby Drew Primary School but the reasoned justification to Core Strategy Policy SP2 states that the 400m exclusion zone is specific to secondary rather than primary schools, as the pupils at the former have greater mobility and independence.

Whilst the Council cite health concerns arising from the proposal on the wider community and I recognise the promotion of good health in policies at local, regional and national level, I have seen no specific evidence that the proposed takeaway would have a direct effect on the health of the surrounding population, even if, as the Council suggests, two other A5 units existed in the parade.

I therefore conclude that the proposal would not have a materially harmful effect on the Council’s strategy of promoting healthy lifestyles. It would not conflict with Core Strategy Policies SP1 and SP2 or London Plan Policy 3.2, which seek, amongst other matters, the promotion of healthy living. Although the Council cite Core Strategy Policy SP3 and the reference within it to avoid problems related to ‘bad neighbour’ uses, I do not consider the proposed uses to be ‘bad neighbours’ in this location.”

In this case, amongst other reasons given, the Council sought to refuse the application on the basis that it would provide access to cheap and unhealthy food and fail to promote healthy lifestyles in the borough. The Inspector concluded however that the relevant Core Strategy policy was specific of its inclusion of an exclusion zone of 400m around secondary schools and whilst there is a primary school within 400m of the proposed A5 use the policy does not include such a restriction. Furthermore, the Council’s consideration that the proposal would have a detrimental impact on the health of the wider community is not backed up by an appropriate evidence base.