Sunday, 13 June 2010
Those of you who saw Saturday’s Guardian may have spotted a report of Cranston J’s judgment in the High Court last Friday (11 June) in R. (Copeland) v. Tower Hamlets LBC, in which he quashed a planning permission for a fast food takeaway which would have been located near a school. The challenge was based on the fact that the officers had advised members that the possible temptation of fast food for the pupils at the school (a point raised and strongly urged by objectors) was not a material planning consideration and should be disregarded by Councillors in reaching their decision. The school has a ‘healthy eating’ policy, and it was alleged that this would be undermined by the presence of the takeaway.
The judge brushed aside a submission on behalf of the Council that, notwithstanding the advice in the officers’ report as to the immateriality of the proximity of the application site to the school, its nearness to the school had in fact been treated as a relevant issue and was taken into account at the committee meeting itself.
I have considerable misgivings about this decision, bearing in mind what the Court of Appeal had said only the day before in R (Morge) v. Hants CC  EWCA Civ 608 [see “Developing overgrown land” below]. Just as members are entitled to decide not to follow professional advice, so long as they did at least take it into account, it would seem to me that they are equally entitled to take a decision in accordance with professional advice, so long as they have taken into account any other material considerations, as it appears they did in this case.
If this case were to go to the Court of Appeal, it seems to me that this judgment might well be over-turned. The LPA, on the other hand, might choose simply to re-take the decision. In this event, the officers’ advice (in light of the High Court judgment) would clearly be that the proximity of the site to the school is capable of being a material consideration, but they would no doubt point out that it is not necessarily an overriding consideration, and that when members take into account all the material considerations, including this one, they may still conclude that it would be wrong to withhold planning permission for the proposed change of use. Such a decision should be reasonably judge-proof, and the objectors would find that they had scored only a ‘pyrrhic’ victory in the High Court.
On the more general question as to whether issues surrounding the easy availability of fast food should be taken into account as a material consideration in planning applications for fast food outlets, I feel that this is stretching the concept of material considerations too far, and that such considerations should be confined to genuine planning considerations, relating to issues of land use planning and analogous topics (such as design). Whilst more general environmental issues are clearly capable of being material considerations, it distorts and undermines the planning system if more general considerations of social policy are allowed to impinge on planning decisions.
This is not the first time that this issue has been raised, and readers who followed the earlier version of this blog on the RTPI’s Planning Matters website may recall the piece I wrote early in 2008, which is reproduced below.
Obesity - a material consideration?
[First published on 27 Feb 2008]
There seem to be some people around who would like to control absolutely anything and everything we do, and if the planning system can be used as a tool to this end, then so much the better.
The Department of Health is the latest to get in on the act. They have opined that, in order to tackle obesity, LPAs should use their planning powers to exercise greater control over the number and location of fast food outlets in their areas. How this can be a proper material consideration in the determination of a planning application is at the very least questionable. One wonders whether they consulted DCLG before coming out with this nonsense.
Taking their cue from recommendations made by the National Institute for Health and Clinical Excellence (NICE), the DOH has also suggested that there should be a requirement for planning applications for new developments to give priority to “the need for people to be physically active as a routine part of their daily life”. Quite how this would be applied to actual DC decisions remains to be seen, but there are hints that it might even extend to detailed design issues, so that (for example) “staircases are designed and positioned to encourage use, and are clearly signposted”. At least they do not quite go so far as to suggest a ban on the installation of lifts!
Although it is put in a slightly different way (in relation to the design and construction of roads), another one of NICE’s bright ideas is that “pedestrians, cyclists and users of other modes of transport that involve physical activity” should be given the highest priority, and one can see how this, too, might find its way into planning policy guidance (the next revision of PPS13?).
Meanwhile, not to be left behind, the London Mayor has published a “draft health inequalities strategy”, which includes an aim to ensure that developments are designed in ways that will improve health. Perhaps he too has been reading the NICE document.
I may be a dinosaur, or a Luddite, but I still cling to the seemingly old-fashioned idea that the determination of development proposals should be governed by planning principles, meaning primarily issues relating to land use and design. The planning system is not intended and should not be used to secure or promote wider social objectives, no matter how desirable they might seem. The Courts in earlier years were robust in defending this principle, but when it is the government itself, or its cohorts, who are instrumental in distorting the planning system to serve other purposes, the courts seem less inclined to intervene. We shall all be the losers if town and country planning is subverted in an effort to secure extraneous policy objectives.
© MARTIN H GOODALL
[In answer to the comment left by a reader (ERW, Anglesey) (Click on "comments" immediately below this item to see the comment), I agree that the requirement for the provision of Affordable Housing is a classic example of subverting or distorting the planning system for non-planning purposes. An early attempt to use the planning system in this way was quashed by the High Court in 1973 (see R v. Hillingdon LBC ex p Royco Homes), but a more recent challenge to the current policy, although it is not a statutory requirement and has no legal basis, was not supported by the High Court, who upheld the approach taken by the LPA and the S of S. (I can't remember the name of the case off the top of my head.) I firmly believe that social housing should be provided by public housing bodies, funded through taxation rather than being some sort of unofficial tax on developers. It has undermined the viability of quite a number of housing schemes, and is another factor reducing the number of homes being built in this country.]