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Development control

Option: Controlling the prevalence of hot food takeaways using planning law

A local authority can produce local planning policy to refuse consent for any new hot food takeaways in a certain area. This page explains the options for local authorities wishing to restrict the numbers of hot food takeaways opening in their area.

Refer to Background planning for a more detailed explanation of local planning powers and spatial planning

What are the Options?

1) Local policy may control the development of unhealthy hot food takeaways through local planning policy documents that;

a. Place limits on the concentration of takeaways in a town or local centre as well as their proximity to each other along a defined frontage, and;

b. Completely restricts any new hot food takeaway (A5 use) within a defined area (e.g. near schools).

2) Even where there is no local planning policy on hot food takeaways, a local planning authority may be able to refuse an application where it might have an adverse health impact on the community.

The law

1) Local Policy on Hot Food Takeaways

Local planning authority consent is required for the development of hot food takeaways where the premises are not already used as a takeaway.  Applications for new takeaways are based on the proposed dominant use of the land; a business whose primary purpose is the sale of hot food for consumption off the premises falls under class A5 of the use classes order[1].

A Local Planning Authority (LPA) must make the decision  based on the development plan.  This plan is made up of local policy documents[2].  They should also take into account other material considerations[2], including any national guidance and local supplementary planning documents. In the absence of national policy on hot food takeaways, restrictions on hot food takeaways should be incorporated into local policy.

Although each planning consent application must be heard on its own merits, a LA can set out policy that explains the priorities and considerations that will guide their decision.  Policy can make presumption that consent will be refused unless ‘material considerations’ indicate otherwise[2].

Following the introduction of the Localism Act of 2011[3], local communities have the option to propose planning policies through the development of a Neighbourhood Plan. A Neighbourhood Plan allows local communities to have a say regarding the development of additional infrastructure within an area. This is not a legal requirement, but offers an option for local communities to become involved in the planning applications for their local area. A Neighbourhood Plan can also be used to form part of the Local Plan for an area.

National law and policy framework that enables local policy on Hot Food Takeaways:

The National Planning Policy Framework (NPPF)[4] encourages the involvement of local communities in the development of Local and Neighbourhood Plans. Collaboration between LPAs and local communities ensures that a 'shared vision' is created with respect to the development of the residential environment and local facilities (NPPF, s.8, par 69).

  • National planning policy encourages a local authority to develop its own plan for the shape and make-up of its retail centres including the number of A5 uses[1]
  • Proposed developments should be assessed based on local 'need', a broad test encompassing a wide range of considerations[2]
  • This could include health and other material considerations such as health and school healthy eating initiatives
Local planning policy to limit A5 use in defined areas:

This local policy can be set out in a Supplementary Planning Document (SPD), as already implemented by Waltham Forest LBC and Barking and Dagenham LBC. These add detail to the core local planning policies and are a ‘material consideration’ in planning decisions but are not part of the statutory development plan.

However, there is no reason why a local policy restricting hot food takeaways could not be set out in a Development Plan Document (DPD) which would place it in the statutory plan. This would mean that planning decisions would have to be in line with the statutory development plan[2], unless there are strong material considerations that indicate otherwise. 

See the case study Barking & Dagenham - planning appeal for support of the SPD approach to limiting new hot food takeaways. Domino’s Pizza UK Ltd lost the appeal against refusal to grant planning permission 11/02/11. This appeal provides support to the effectiveness of the SPD local policy approach but also highlights that such considerations are only one of several ‘material considerations’ in a planning decision. Also, the Inspector’s narrow treatment of the potential health impact of the takeaway demonstrates that health considerations may not always be seen in a broad light by planning inspectors.

2) Control of Hot Food Takeaways in the absence of local policy

The health impact of a proposed takeaway development on the community is likely to be a ‘material consideration’ in a planning decision regardless of local policy. This means it should be considered in a decision whether to allow planning consent but the weight to attach it is a matter for the decision-maker:

The meaning of ‘material consideration’:

  • Whether something is determined to be a ‘material consideration’ is a matter for the decision-maker with the courts as final arbiter but this encompasses a broad range of issues that can be related to a particular development
  • Given national policy makes ‘sustainable development’ the “core principle underpinning planning”[4] and that this principle contains the objective of a “healthy and just society, it is likely that social objectives, including the promotion of health, are material considerations where they impact on a particular development. 

Case law: R (on the application of Copeland) v Tower Hamlets London Borough Council [2010]

In a recent judicial review Tower Hamlets LBC’s grant of planning consent for new A5 hot food takeaway near a school that was promoting healthy eating to its pupils, was quashed as unlawful. It was found that the planning committee had been unlawfully directed that the impact on the school and health was not a material consideration[5].

This decision demonstrates that a potential impact on local health is likely to be material to an application to develop a hot food takeaway, particularly where there is a nearby school trying to promote healthy food, although the case did not address this point directly

As a material consideration, planning decision makers are able to attach considerable weight to the potential health impact of hot food takeaways in their decisions.

Limitations

Limitations to controlling the prevalence of fast food based on A5 use include:

  • Cannot control the number and concentration of existing A5 uses; this is a long-term approach to reduce the saturation of an area by takeaways, relying on a natural reduction in numbers through closure and change of use.

  • Does not prevent development of 'shops' (Class A1) that sell unhealthy food for takeaway

  • Businesses that offer takeaway as well as a restaurant might be granted consent as a restaurant (Class A3) instead of a hot food takeaway

  • Not all food sold at a hot food takeaway may be unhealthy, although if the takeaway sells healthy food this might be considered to allow an exception to the policy

  • There is a danger that ethnic groups within a community who operate A5 establishments might be unfairly targeted (issue of inequality)

 


References

[1] The Town and Country Planning (Use Classes) Order 1987 It is for the local planning authority to determine which class of use a development proposal falls under. This can mean that developers attempt to open without planning consent, relying on the dual function of their business to claim another dominant use

[2] S.38 (6) Planning and Compulsory Purchase Act 2004; "(6) ..... for the purpose of any [planning] determination to be made ..... the determination must be made in accordance with the plan unless material considerations indicate otherwise."

[3] Localism Act 2011

[4] National Planning Policy Framework

[5] R (on the application of Copeland) v Tower Hamlets London Borough Council [2010] All ER (D) 72 (Jun), [2010] EWHC 1845 (Admin)