To provide Members with information sought
specific to the consideration of the adoption of the draft Hot Food
Takeaway Supplementary Planning Document (“SPD”),
including the legal advice sought at Members request.
The Board considered the report of the Head of Development and Regulatory Management (HDRM) relating to the issue of the adoption of a Hot Food Takeaway Supplementary Planning Document (SPD). The report set out the background to the issue including the drafting of a SPD which had been subject to consultation, which had raised concerns as to its robustness to challenge.
At the Board’s request, a Counsel’s Opinion had been obtained addressing several questions posed as to the veracity of pursuing a SPD in the Solihull context. This was attached to the submitted report.
The HDRM had set out in the report five options in taking this issue forward, namely:-
Option 1 – Adoption of the existing draft SPD, as consulted upon. Based on the consultation responses and the legal advice, in view of a number of flaws, the adoption of this SPD was not recommended.
Option 2 – Preparation of a revised SPD in the light of the consultation responses and the legal advice. This option was seen as being viable albeit with some drawbacks not least the need to progress it with the Local Plan Review.
Option 3 – Review Policy P18 as part of the agreed Local Plan Review. It was suggested that there was scope for the current Policy P18 (Health and Wellbeing) to be reconsidered and strengthened as part of the Review with a timescale of two years.
Option 4 – Prepare a Development Management Guidance Note – Although such a Note could be of use, it had flaws not least the limited weight that could be attached to it in decision-making.
Option 5 – Rely on the existing Local Plan policy framework and development management process. Whilst the Council could rely on the existing policy framework it was acknowledged that this would not address the Council’s wider aspirations to tackle health and wellbeing.
Witnesses gave a presentation which gave further context to this issue including the legislative and policy framework, the competing priorities of the National Planning Policy Framework (NPPF), outcomes of the Shirley KFC appeal, the subject of demonstrable harm and what the Council is doing currently in response to the issue.
The Director of Public Health and Commissioning (DPHC) advised that the latest data demonstrated that obesity in children in Solihull was still too high, albeit levels were lower than in some other areas. The difficulty faced currently was having the necessary evidence in place to support the need for a policy to regulate the food environment around schools and the causality between exposure to hot food outlets and the increased risk of obesity in children.
The following issues were raised: -
· A Member commented that whilst accepting the aforementioned difficulties and the risk of challenge to a SPD, the Local Authority had a duty to pursue its Health and Wellbeing Policies in enhancing the lives of its residents. As such, the Council should follow other Councils’ example in introducing a suitable SPD. Based on the options presented to the Board, the Member suggested that a revised SPD (Option 2) should be progressed linked into the Local Plan review (Option 3).
· Another Member commented that whilst the revised SPD should focus on hot food takeaways rather than other environmental or amenity matters, there should be sufficient flexibility to accommodate changing circumstances.
· Reference was made to national policy advice on the subject, including an NHS document on “Using the planning system to control hot food takeaways”. A Member quoted from this document – “To be effective a range of planning policies or criteria should be developed where local evidence and circumstances will determine the appropriate policy response. Evidence can be quantitative and qualitative, including public consultation exercises to understand how people perceive their built environment and how it influences their behavior”. Witnesses confirmed that this type of evidence could be collected locally.
· In response to questions, witnesses made the point that the currently drafted SPD really comes unstuck, as confirmed through the legal advice, by trying to cover too many issues including that of amenity for which, other robust policies were available.
· A number of Members concurred with the view expressed earlier that a revised SPD was desirable with the strengthening of Policy P18 as part of the Local Plan review.
· A Member referred to the Shirley KFC Appeal and the behavior of the Appellant’s Barrister which might be off-putting to those witnesses giving evidence to the Appeal. In another reference to the Appeal, it was suggested that the Council, at the time, should have embarrassed the Appellant Company by publishing the fact that the loss of the Appeal had cost the local taxpayer £40k.
· Reference was made to the apparent dichotomy between planning and public health legislation and national policies in the regulation of the provision of new hot food takeaways. To this end, it was suggested that the Government should be lobbied, through local MPs. A witness advised that the Government was currently developing a new strategy on childhood obesity, expected in the New Year, so representations now might be timely.
· A Member queried whether the devolution associated with the intended West Midlands Combined Authority (CA) might offer a solution in terms local powers. It was suggested that this type of issue was beyond the powers that were being sought for the CA.
· A general comment was made that as this topic encompassed issues beyond pure planning policy, then the Health & Adult Social Care Scrutiny Board might have a view, particularly on the health & wellbeing aspects, including the fact that obesity was costing the NHS £13.6m.
· In addition to the work needed in gathering more in the way of local evidence for a revised SPD, it was suggested that further research should be conducted of other local authorities that had adopted an SPD with a focus on regulating hot food takeaways in order to learn from the model that they had used, particularly where their policy had been upheld through the courts.
· A Member commented that in addition to pursuing a revised SPD, the Council must not let up on its other activities, such as, working with the food and takeaway industry to introduce healthier food and with schools to reduce the level of fast food consumed by children.
· In response to a question, witnesses re-iterated a point made during the presentation over “demonstrable harm” and the difficulties associated with using an arbitrary threshold in an SPD, such as, the actual harm caused by a hot food takeaway that is located just inside a 400m threshold from the school as opposed to a takeaway that might be located just beyond that threshold. Witnesses advised that there might be other criteria that could be used, depending on the local circumstances, such as, the accepted walking route to a school.
That the Cabinet Member for Managed Growth be RECOMMENDED to: -
i) Authorise the preparation of a revised SPD in support of the Health and Wellbeing Priority with a particular focus on the regulation of Hot Food Takeaways,
ii) Agree that the revised SPD should be prepared in conjunction with the consideration and strengthening of Policy P18 as part of the intended Local Plan review,
iii) Accept that the current draft SPD, evidentially, is unsubstantiated and has too wide a focus, including amenity, for which other controls were available,
iv) Lobby local MPs over the apparent dichotomy between planning and public health legislation and national policies in the regulation of the provision of new hot food takeaways, and
v) Continue the Council’s leadership role in working with the food and takeaway industry to introduce healthier food and with schools to reduce the level of fast food consumed by children.
Cllr A Hodgson entered the meeting at 6.05 pm during discussion on the above item.
Cllr K Macnaughton entered the meeting at 6.14 pm during discussion on the above item.
Cllr M Robinson entered the meeting at 6.20 pm during discussion on the above item.