Scottish council’s decision to ban snack vans from operating near schools was ‘ultra vires’, sheriff rules

A number of street traders sought to reverse a decision of the defender, North Lanarkshire Council, to prohibit snack vans selling hot or cold food, fish and chip vans and ice cream vans from operating with 250 metres of all secondary schools in the local authority area.

Sheriff Vincent Smith at Hamilton Sheriff Court ruled that the council lacked power to impose such a condition on street traders’ licences (‘Burger vans win fight against council to trade near schools’, Scottish Legal News, 3 December 2015).

The court heard that on 20 August 2014 the defender varied the licences to include the following condition: “The street trader will be prohibited from operating within a distance of 250 metres from the defined perimeter, as constituted by the physical boundaries in place, of all secondary schools in the North Lanarkshire Area from 8am to 5pm on any school day during term time. The prohibition will apply to snack vans selling or offering for sale hot or cold food, fish and chip vans and ice cream vans.”

The genesis of the condition was in two publications: the Scottish Executive’s 2004 ‘The Hunger for Success Initiative’ and the defender’s ‘diet and nutrition policy 2013-14 - the aims of which were to promote the benefits of healthy eating and healthy lifestyles for all children, to improve and promote the nutritional content and balance of food offered in schools and to influence the eating habits of children.

The pursuers, Karen McCluskey, Stephen Kerr, Patricia Hardie, and Marie Pratt and Caroline Kane, who held licences which allowed them, within set hours, to sell hot and cold food from snack vans placed on designated static sites at various locations within the local authority area of the defender, sought to reverse the council’s decision to impose the condition in terms of schedule 1, paragraph 18(1) of the Civic Government (Scotland) Act 1982.

It was submitted that the decision to impose the condition to vary the licences was “ultra vires and based upon an error in law, proceeded upon inadequate reasoning, was an unreasonable exercise of discretion, breached natural justice and in terms of the Human Rights Act 1988 was unlawful and disproportionate”.

But the council pointed to evidence which showed that some pupils were choosing to leave school at lunchtime to use other food outlets including snack vans, which were generally viewed as selling food that is considered “unhealthy” and “contributes to obesity”.

It was submitted that the report from the defender’s legal department to the corporate services committee of 22 April 2014, which gave rise to the condition, articulated these concerns.

It was argued that it was quite rational to consider that snack vans in the vicinity of schools might reasonably compromise or undermine the defender’s objectives since some children were more likely to choose unhealthy foods if it was readily available in the immediate vicinity, and the removal of snack vans reduced this likelihood.

The aims of the policy were intimated to the pursuer in the defender’s letter dated 4 August 2014 and the statement of reasons made it clear that it was considered by the sub-committee to be in the “public interest” that the diet of school children be improved.

However, the sheriff concluded that the condition imposed by the defender amounted to a “blanket ban” and was ultra vires.

In a written judgment, Sheriff Smith said: “That obesity among the general population and children especially is considered problematic is not in dispute. That elected representatives wish to confront this problem and take steps to promote healthier lifestyles is to be commended.

“Neither of these is the issue in this case. The issue is whether the defender, as a licensing authority, has the power to impose this particular condition upon the licences of street traders. In my judgement it does not.

“I am satisfied that Parliament cannot have intended local licensing authorities to have the implied power to attach a condition with such a significant effect on the commercial contracts of street traders.”

He added: “I consider that the sub-committee adopted an inflexible approach to all applications for an exemption. In my judgement it is clear from the statement of reasons and the near uniformity of its reasons that the ‘general view’ that the pursuers sold food considered to be unhealthy prevailed. The sub-committee was determined to impose the condition.

“It did not matter what was sold even though one of the pursuers was able to detail the homemade produce and nutritional foods prepared and sold by her. Nobody could present an exceptional case especially in the light of the defender deciding that it had to be seen to be doing something.

“Both counsel conceded that if I found that the defender acted outwith its powers then the appropriate disposal is to reverse the decision of the defender to impose the condition. That is what I shall do.”