In light of the Clarence Valley Council Famous Five's stubborn insistence that they had to take the advice contained in a flawed council officer's report on the McDonald's Australia development application for an eat-in and drive through fast food outlet in Yamba on the NSW North Coast, this outcome a world away shows that councillors don't have to follow 'bad' advice like so many sheep:
Judge makes landmark fast food ruling
Michael Donnelly, PlanningResource, 14 June 2010
Planning approval for a fast food takeaway near a school with a healthy eating policy has been quashed by the High Court.
In a landmark ruling a judge declared that the London Borogh of Tower Hamlets "acted unlawfully" when it gave the go-ahead for "Fried & Fabulous" to open for business at 375 Cable Street, Shadwell, close to Bishop Challoner Catholic Collegiate School.
The judge said councillors had voted in favour of permission after being wrongly directed that they could not take account of the proximity of the local secondary school because it was not "a material planning consideration".
The council will now have to reconsider any further planning application for a takeaway at the site in light of today's ruling.
Councillor Peter Golds, leader of the council's Conservative group, said later: "This is a very important High Court decision.
"It clarifies the law and sets a benchmark that will enable local authorities everywhere to take account of health and well-being - particularly of schoolchildren - as factors in determining planning applications." ...............
Today the planning permission - granted in April following a 5-1 vote in favour, with one abstention - was quashed by Mr Justice Cranston, sitting in London.
The judge said that when the application for a hot-food takeaway was granted by the council's development committee in April, an officer's report specifically advised council members that the proximity of the proposed fast-food outlet to the school could not be a material planning consideration.
Richard Harwood, appearing for the council, had argued that at the committee meeting itself the nearness of the school had in fact been treated as a relevant issue and taken into account.
Rejecting the submission, the judge said the officer's report was "a clear direction to the effect that the points about proximity could not be given any weight at all." ...........
There were indications that committee members who had voted in favour of the takeaway would have reached a different decision "if they had been properly directed".
The judge said: "I declare the council has acted unlawfully and I quash the grant of planning permission."
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