Appeal 6001393

The appeal is dismissed.

I have taken the site address from the Council’s decision notice as it more fully identifies the location of the appeal site.

The main issue is whether the site is a suitable location for the development having particular regard to a) the development plan allocation for the site; and b) the health and well-being of local school children.

Policy H01 of the Thanet Local Plan 2020 (TLP) establishes those sites allocated for new housing development. They are listed in a table within the policy and are said to be shown on the policies map. The Policy goes on to note that alternative development on non-strategic sites allocated for residential development will not be permitted.

It appears that the sites listed in the table do not include all the allocated sites and that some allocated sites are just shown on the policies map. The appeal site is not listed in the table but there is no dispute between the main parties that it is shown on the policies map.

The appellant suggests that it is only those allocated sites without planning permission which are listed in the table in Policy H01, and that it is those allocated sites with planning permission which are only shown on the policies map. I have not verified this, and although the Council does not make an observation on this matter, the policy itself does not state this to be the case or the reason why the table does not contain all the allocated sites.

In addition to the above, Paragraph 11.1 of the supporting text to Policy H01 notes that allocated sites are shown on the maps and featured in a list in [name]. This appendix lists housing allocations (not just those listed in the table in Policy H01) and sites with planning permission for housing.

Listed in [name] under the sub-heading ‘Non-Strategic Urban Area Sites’ is a site described as ‘[address] [name] Europlast Ltd 15/0187’. It is shown as being for a total of 120 units. The reference to Flambeau Europlast Ltd 15/0187 is no doubt a reference to the 2015 planning application on the [name] site which is located to the south of the Tesco car park and adjacent to the appeal site. Both main parties acknowledge that planning permission 15/0187 for 120 houses does not include the appeal site.

The Council has confirmed that both the Flambeau site and the appeal site were part of a larger, single employment use allocation in 2010. However, they were said to have been reallocated to housing following the submission of the Strategic Housing Land Availability Assessment and the identified need for housing. It is the Council’s position that the reference to the 2015 planning permission was to demonstrate completeness in the allocations table not to determine the boundary of the local plan allocation.

Under the sub-heading ‘Extant Planning Permissions’ in [name], is the planning permission for the Flambeau site, identified as: ‘Flambeau Europlast Ltd, [address], Ramsgate, [postcode] ’. This is different from the allocation listing which clearly includes the wider reference to [address] [name] and not just Flambeau Europlast Ltd. To my mind this suggests that the site with permission and the allocation as a whole were not necessarily the same parcels of land.

Furthermore, the landowner (Tesco) has confirmed as part of this appeal that the site was initially supported for residential development during the call for sites and the preparation of the Local Plan in 2017-2018. The Council has confirmed that they did not receive any representations in relation to the allocation of the site. This does lend further weight to the Council’s position that both the appeal site and the Flambeau site were being progressed for housing development by the Council as part of the Local Plan process, notwithstanding the existence of planning permission for the Flambeau site.

However, both the 2015 permission and allocation are said in [name] to deliver 120 units. A more recent, 2025 outline permission on the Flambeau site, was for 118 dwellings. This figure is also reflected in the contribution expected from the allocation in the Council’s 2026 [name] on their five-year housing land supply.

The Council indicate that because the allocated site has planning permission on a significant part of it, the capacity reflects that planning permission as it is considered it will be deliverable but does not preclude a higher yield from the whole of the allocated site. The appellant interprets this as the Council in effect acknowledging that the site the subject of this appeal is not expected to be deliverable within the next 5 years for residential development.

I do not interpret the Council’s position as conceding no development will come forward on the appeal site within 5 years. Nonetheless, there is a correlation between the permissions for the Flambeau site and the expected units from the allocation as a whole, which does support the appellant’s contentions.

However, allocations in Local Plans generally only provide an indicative figure. Indeed, paragraph 11.1 of the TLP notes that the dwelling unit capacities indicated are notional. Thus, the allocation and planning permission having comparable provision is not necessarily confirmation of the allocation only relating to the Flambeau site or the appeal site not expected to come forward within 5 years.

I recognise the case law brought to my attention, but I am satisfied that there is insufficient evidence to point to the appeal site not being included within the Local Plan as a non-strategic allocation for housing or that there is an inconsistency with the [name]. I acknowledge that the written local plan is the primary document, and that the maps are to provide a geographical representation to help understand the local plan itself. However, in this case, whilst the approach may not be straightforward, it has not voided the policy’s allocation of the site for housing.

The extant permission on the Flambeau site would deliver 118 units. This would not be many fewer than the 120 units of the allocation in the Local Plan. However, as noted above, 120 units is a nominal figure and is not necessarily reflective of the numbers that might be achieved on site once detailed layouts are prepared.

With regard to deliverability of the site for housing, I note that Tesco indicates it has had no firm interest or offer from housing developers. Aside from their letter dated 16 January 2025, I have few details. Access to the site is cited as a major reason for the lack of interest, and it would clearly be an important matter to establish for any potential developer.

I understand that the 2025 outline permission for the Flambeau site makes no provision for access to the appeal site either through a condition or legal agreement. However, layout is a reserved matter of the 2025 outline permission and so at this stage the appeal site is not necessarily land locked and inaccessible. There is nothing to suggest that access could not be achieved through the Flambeau site or that this option has been explored or put to potential residential developers as a possible way forward.

The opinion from a housing association identifies obstacles to the appeal site’s development, which again largely revolve around access. As their concerns more generally have not been subject to wider discussion, I cannot be certain that they could not be overcome. Similarly, the proximity of the Tesco service yard and other nearby commercial operations might restrict the location of housing on some of the site, but I have no firm information to demonstrate it would prevent all of the site from being developed for housing.

Other differences between the two parts of the allocation such as being in separate ownerships or having different ground levels are not in themselves strong reasons to believe that the appeal site could not be developed in conjunction with the Flambeau site. Therefore, given the information before me there remains a reasonable prospect of the land being developed for housing within five years.

Overall, I find that the site is allocated for housing under the development plan. The proposal would not though be for a housing development. It would be used as a drive-thru restaurant. As such, it would not accord with the development plan allocation.

I therefore conclude on this main issue that the proposal would not be in a suitable location with regard to development plan policy because it would conflict with the allocation of the site for housing under Policy H01 of the TLP. This is consistent with the strategic objective of Policy SP01 to focus new housing in Thanet in urban areas.

The Council does not draw my attention to any development plan policies in support of their position on this main issue. However, the Council does reference the National Planning Policy Framework (the Framework), which is a material consideration.

Paragraph 96 c) of the Framework refers to planning decisions that should enable and support healthy lives through both promoting good health and preventing ill-health, especially where this would address identified local health and well-being needs and reduce health inequalities between the most and least deprived communities, for example through access to healthier food.

Furthermore, it says at paragraph 97, that applications for hot food takeaways and fast-food outlets within walking distance of schools and other places where children and young people congregate, unless the location is within a designated town centre, should be refused. It also advises that where a concentration of such uses is having an adverse impact on local health they should also be refused.

[name] is located on [address]. The main parties disagree over the exact distance between it and the appeal site. However, the appellant’s measured walking route supports the contention that the two sites are some 467m apart. It is not clear how the Council achieved its figure of 300m, but it may be based on a simple radius approach. I am therefore inclined to accept the figure of 467m as being the more realistic measurement to adopt in this instance.

I understand that a new primary school is included within the Manston Green redevelopment, which is currently being built out. I have no details of the school, aside from the information in the officer report that it is 400m from the appeal site. Again, it is not clear if this is a measured walking distance or simple radius, but the appellant does not challenge this figure specifically. However, they do note that the school is intended to serve the wider development on Manston Green, which is to the west of Tesco, thereby limiting likely journeys to and from the appeal site. The Council’s appeal statement concentrates on [name] and given the circumstances and limited details around the Manston Green school, I too have concentrated my assessment in relation to that school.

I do not doubt that the appellant is able to offer a range of healthy meal options. Indeed, it is indicated that the proposed development would make a positive contribution to health and well-being. Nonetheless, the proposal is for a development which would support a range of different operators. More generally, hot food takeaways allow for less healthy foods to be made available which can often run contrary to the public health agenda.

Consequently, I consider it necessary to assess both the location of the appeal proposal in relation to the school and whether this in turn means I should assess any likely impact of the proposal upon the health and wellbeing of local schoolchildren.

The route between [name] and the appeal site is flat and served by footpaths. Depending upon who is walking this route and the time of day, it can be achieved in only a few minutes.

Having walked the route, the journey from the school to the appeal building would, even at 467m, not be overly complicated. However, it would require an element of road/traffic awareness and caution. In my opinion, it is unlikely that younger children would be making this journey on foot on their own.

However, as it is a primary school, children up to the age of eleven would be attending who may be walking to and from school on their own. This is not inconsistent with the survey information which notes that between 15-17% of children walked to the school unaccompanied. It is entirely possible that older children from the school would be able to access the appeal site on foot.

The survey information indicates that very few pupils travel past the Tesco on their way to school and that less than 1% divert to access the superstore itself where such items as sweets, crisps and less healthy snacks and drinks can be purchased. However, the type of food available from a hot food takeaway restaurant such as the one proposed is different from a superstore, as is the customer experience.

Indeed, some of the proposal’s identified benefits, such as free wi-fi and it serving as an informal meeting place are aspects which are likely to attract children. Consequently, the limited use of the existing Tesco by unaccompanied children does not to my mind provide a strong basis for believing that children would not necessarily be attracted to the proposed restaurant.

Nonetheless, there is nothing before me to indicate that children would be able to leave the school outside of the traditional school times. Furthermore, the survey information suggests that the restaurant’s location would be likely to divert children away from their regular route home. These factors would lessen the opportunities older pupils would have to walk to the proposed restaurant from the school.

The Framework does not define ‘walking distance’. The Council refer to the Manual for Streets which identifies walkable neighbourhoods as being up to 800m. Whilst this may be a useful guide for neighbourhoods, the Council does not relate the 800m figure directly to the circumstances before me.

Conversely, the appellant refers me to the Public Health England document ‘Using the planning system to promote healthy weight environments’. It notes that many Councils use a 400m exclusion zone around sites such as schools when considering proposals for such uses as hot food takeaways. It is suggested that this would be an appropriate guide in this instance, given the absence of any local or national detailed guidance. However, as the document notes, factors such as childhood obesity levels can be a reason to extend exclusion zones beyond 400m. This is a concern which has been raised by the Council, and I therefore address this matter below.

The main parties have provided competing evidence as regards obesity levels in the local area. This information suggests that obesity in younger children in Thanet has been above local and national averages and has been a particular problem in Newington. However, the data before me does also indicate that for Year 6 children (10-11 years old) in Thanet the levels of obesity and severe obesity are starting to reduce, even if there are still problems with younger children.

Although more recent information at ward level is not available, the improvements generally in this area of public health are to be welcomed. Nonetheless, obesity is clearly still at a level where it would remain a concern in Thanet generally.

I understand that there are only two fast food outlets in the Newington ward and a fish and chip shop in the neighbouring Northwood ward. To my mind, this suggests that whilst I cannot entirely rule out the possibility of them being a contributory factor to the local levels of childhood obesity, they are unlikely to have been the sole reason for the previous levels. Furthermore, there is nothing before me to indicate that the provision of these fast-food outlets has prevented the more recent reductions in childhood obesity. On this basis, it is difficult to conclude with certainty that the proposal would have an adverse impact on local health outcomes for school children or threaten the recent reductions in obesity levels of Year 6 children.

The site is over 400m from the school, which is not determinative in this case, but is nonetheless a common guideline used to determine a reasonable walking distance from a school to fast food restaurants. Whilst the location of the site is accessible on foot and the use would be likely to attract children, it would not be on a direct route children would generally walk, certainly on their way to and from school.

Although childhood obesity has been a problem in the district, it is now starting to decline. The addition of the proposed restaurant would not lead to an over concentration of fast-food restaurants in the local area and there is insufficient evidence to demonstrate that the proposal would have an adverse impact on children and the more recent local health improvements.

Therefore, in the circumstances of this particular proposal, the evidence before me and the current framework policies, the health and wellbeing of local schoolchildren, very important though that is, would not be adversely affected sufficiently to warrant the withholding of planning permission in this instance.

Consequently, it has not been demonstrated that the proposal would have a harmful effect on the health and wellbeing of local school children. Accordingly, I do not find the proposal contrary to Framework paragraphs 96 and 97.

The officer report refers to the Council having a 3.18-year supply of housing land and that it achieved only 67% delivery in the 2023 [name]. The Council’s 2026 [name] on its five-year housing land supply indicates that this now stands at 3.70 years including the application of a 20% buffer. Even though this is only an interim position and it shows a recent increase in the supply of housing, it is clear that the provision of housing in the area is still markedly below the expectations of national policy.

A drive-thru restaurant would provide for a broader consumer choice of such facilities. It would also represent inward investment into the area and generate new employment opportunities, which would accord with the thrust of the TLP’s policies for economic growth and those of the Framework.

It is indicated that the proposal would create approximately 120 new jobs, many for younger people, which in turn may bring other economic and social benefits. However, there is no indication of the breakdown between the likely number of full and part time roles or the overall full time equivalent.

A number of benefits of the scheme are identified as a result of the site being operated by McDonalds. These include such matters as free Wi-Fi, informal/formal meeting space, local partnerships, supporting charities and sponsorships, CCTV, highlighting nutritional value of food and promoting healthy eating options, litter patrols etc. It is also indicated that the restaurant would benefit from McDonald’s approach to matters such as waste minimisation, energy and carbon reduction. The building itself would use recycled materials in its construction, where possible.

However, I am mindful that any permission would not be personal to the appellant. Even if an alternative operator at this site might look to offer similar benefits, many of them could not be guaranteed through planning conditions.

Furthermore, there is no substantive evidence before me to suggest the benefits cited in support of the proposal could not be realised on a different site or that there is no other land available in the area for the scheme.

The proposal would seek to positively address matters such as cycle parking, car charging, pedestrian access, landscaping and design/appearance. However, an acceptable development would generally need to accord with the development plan in relation to these matters in order to be considered acceptable. Likewise, a lack of harm arising from matters such as noise, smell and deliveries would be expected. None of these were contentious matters in the appeal and so they do not weigh heavily in favour of the proposal.

A drive-thru’ restaurant could be said to make effective use of brownfield land within the urban area of Ramsgate. However, the same would be true for the reuse of the site for housing.

I have not found the proposal to be located where it would be likely to cause harm to the health and wellbeing of local schoolchildren. This is not a benefit of the scheme but is a neutral matter that neither weighs for or against the development.

I have concluded that the appeal site is allocated for housing under Policy HO1, which is consistent with the strategic aims of Policy SP01 to deliver new housing in urban areas. The proposal would result in the loss of land specifically identified to meet Thanet’s housing requirements, representing a clear conflict with the intended land use of the site.

Whilst the local plan is more than 5 years old, in accordance with Framework paragraph 232, Policy HO1 is highly consistent with the Framework’s fundamental objective to deliver new homes by allocating land for housing and safeguarding it from alternative forms of development. As the appeal site remains part of the Council’s strategy for meeting identified housing need, I attach significant weight to the proposal’s conflict with the development plan.

Footnote 8 of the Framework is clear that the lack of a five-year housing land supply trigger applies to applications involving the provision of housing. As the proposal is for commercial development, footnote 8 is not engaged in this respect. Furthermore, while footnote 8 is not an exhaustive list of reasons a policy might be out of date, the lack of a five-year housing land supply in this instance does not diminish the relevance of Policy HO1 to allocate and protect sites for housing.

On the contrary, the housing shortfall reinforces the policy purpose in protecting the site for its intended use. Because the policy remains consistent with the Framework’s housing delivery aims, I am satisfied that it is up to date for the purposes of considering the use of the site as a drive-thru’ restaurant. Therefore, the balance under paragraph 11d(ii) does not apply.

The proposal is for a single drive-thru restaurant. It would bring a range of benefits as set out above. However, the scale of some of them is not entirely clear and other benefits rely on the site being operated by McDonalds rather than running with the land. Collectively, I attach moderate weight to the benefits of the proposal.

A key local and national objective is to significantly boost the supply of housing. The allocation of the site for housing and the need to safeguard it from other forms of development, is consistent with prevailing planning policy. Conversely, the proposal would reduce the supply of housing land. Thus, in the context of a confirmed housing land shortfall, the importance of delivering dwellings on allocated sites is heightened rather than diminished. The delivery of even a small number of dwellings would contribute to rectifying the current deficit.

In addition, housing development would bring its own economic benefits both during construction and upon occupation. There may also be some associated social benefits from a housing development on the land.

Overall, I find that developing a drive thru’ restaurant on a site allocated for housing, at a time of acknowledged undersupply even if the numbers of dwellings would be limited, constitutes an adverse impact that outweighs the economic and other benefits of the scheme.

However, even if I am wrong in my conclusions regarding the Local Plan being up to date for the purposes of this appeal, and Paragraph 11 (d)(ii) were to apply, it does not mean that the appeal would automatically be allowed.

Paragraph 11 (d) advises that where policies which are most important for determining the application are out-of-date, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.

The proposal would deliver some benefits, as outlined above, which would be consistent with the Framework. However, a key government objective is to significantly boost the supply of housing, with the Framework noting that it is important that a sufficient amount and variety of land come forward. Retaining the site for housing is consistent with the Framework, whereas the proposal would reduce the supply of housing land on brownfield land within a settlement.

Overall, I find that losing housing on an allocated site, at a time of acknowledged undersupply, even if the numbers of dwellings would be limited, constitutes an adverse impact that significantly and demonstrably outweighs the economic and other benefits of the scheme. As such, having regard to Paragraph 11 (d)(ii), the proposal would not benefit from the presumption in favour of sustainable development set out within the Framework.

I have found that the proposal conflicts with the development plan, when taken as a whole. Even when considered cumulatively, the weight given to the other material considerations would not outweigh the identified harm. Accordingly, they do not indicate that permission should be granted contrary to the development plan. Therefore, the appeal is dismissed.