Conflicting appeal decisions on takeaways

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In the last few weeks, hot food takeaways have unexpectedly been afforded a new regard in light of their role in helping to feed the nation during the coronavirus outbreak.  Social distancing measures have increased our reliance on home delivered takeaways which prompted the introduction of new permitted development (PD) rights to allow pubs (A4 use) and restaurants (A3 use) to change use to hot food takeaways (A5 use).   In addition to many independent pubs, cafes and restaurants utilising these PD rights, some national operators including Burger King, KFC and Pret a Manger are now set to provide delivery and takeaway services from some of their outlets.

The new PD rights are, however, only in place for a temporary period of 12 months and it is worth remembering that in ‘normal’ circumstances, takeaways are not always seen in such a positive light.  Hot food takeaways were separated from restaurants and cafes (A3) and given their own use class (A5) back in 2005 as they were considered to raise different environmental issues, such as litter, longer opening hours, and extra traffic and pedestrian activity.  In more recent years, takeaways have been seen as a contributing factor to rising levels of obesity, particularly in children.  Planning policy has sought to play a part in controlling the location and access to takeaways but two recent appeal decisions have highlighted on-going inconsistency in applying such policy.

In both instances, the respective Councils have Hot Food Takeaway Supplementary Planning Documents (SPD) in place which set specific criteria for allowing takeaways in certain locations relating to children.  The first case (ref: APP/H4315/W/19/3228033) involved an appeal by Brothers Burger to allow an A5 use at an A3 restaurant in St Helens.  St Helens Metropolitan Borough Council’s SPD advises that permission for a hot food takeaway will only be granted provided that it is located beyond a 400m exclusion zone around a primary or secondary school.  Despite the fact that the appeal site was within 400m of not just one, but three primary schools, the Inspector allowed the appeal stating that ‘it seems unlikely that primary age pupils would be allowed to travel off the school premises to the site during school hours in order to purchase food’.  The Inspector was not persuaded that ‘healthy eating by school pupils, or indeed any resident in the locality, is likely to be affected to such a degree in this instance that the appeal should fail’.

In another case (ref: APP/H4505/W/19/3221736) relating to a new KFC unit at a retail park in Gateshead, the Inspector took a different stance. Gateshead’s SPD seeks to prevent the development of new hot food takeaways in wards where the level of obesity among year 6 pupils exceeds 10% of the cohort. The appeal site falls within just such a ward, Lamesley, and whilst it was agreed that there was a limited likelihood that the KFC would be a destination for school pupils, the Inspector considered that overweight or obese pupils are likely to become overweight or obese adults.   The aim of the SPD is to improve the health of the entire population of the district, and not just pupils.  The Inspector dismissed the appeal on the grounds that the proposal failed to comply with policy as it would ‘increase the access of citizens of Lamesley and the rest of Gateheads to unhealthy food’.

The latter appeal decision also includes an interesting discussion on what constitutes a Health Impact Assessment (HIA) as required by the the Council’s SPD.

There are currently calls for the temporary hot food takeaway PD rights introduced in response to the coronavirus to be kept under review and possibly extended or made permanent beyond 23 March 2021.  It is yet to be seen whether this will happen.  In any event, the PD rights only apply to the change of use of existing pubs and restaurants and there will remain a need for planning permission to be secured for new takeaway facilities.  The fact that two Inspectors can reach these different decisions illustrates the difficulties of assessing the effects of allowing a takeaway on the health and wellbeing of a community.

If you have any queries about the aforementioned appeal decisions, or takeaways more generally, please feel free to give one of the Firstplan team a call.