Lanarkshire school burger van ban ruled unlawful

Lanarkshire burger van owners have won their case against the council. Picture: Robert Perry

Van workers Karen McCluskey, Stephen Kerr, Patricia Hardie, Annmarie Pratt and Caroline Kane took North Lanarkshire Council to court after new conditions were imposed on their licenses to prevent them setting up shop within 250 metres of a school.

Council officials, who are responsible for 160 schools, imposed the ban last year, claiming they had a moral duty given major problems with childhood obesity across Scotland.

A civil hearing was held at Hamilton Sheriff Court earlier this year and Sheriff Vincent Smith has now ruled that the ban is unlawful.

The court heard that Ms McCluskey and Mr Kerr have a van near Bellshill Academy, Ms Hardie worked near St Aidan’s High School in Wishaw, and Ms Kane had a van near St Andrew’s High School, Coatbridge.

They all claimed their customers and their own human rights have been infringed by the ban which they want overturned.

In a written judgement, 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.”

Law firm TLT represented operators affected by the ban, with their head of licensing Stephen McGowan instructing Scott Blair, Advocate, who appeared in relation to the appeal.

Mr McGowan said: “I am delighted for the van owners that the appeal has been upheld. In some cases, the traders have been at their location for three decades and long before the development of nearby schools. We argued at the original hearing that the licensing authority was acting outside its powers by using licensing law to achieve another purpose, in this case, to purportedly further a legal duty placed on the local authority to promote healthy school meals, and the Sheriff has certainly taken this point.

“We also argued that a licensing authority does not have power to consider nutritional standards of food sold by a licensed street trader, which Sheriff Smith has also agreed with.”

He added that the case may have wider repercussions across Scotland, saying: “I am aware that a number of other Scottish licensing authorities have similar policies which ban snack vans from being located next to schools.”

At the court hearing, North Lanarkshire Council’s lawyer had argued that allowing the vans to keep selling snacks near school gates would be the same as allowing a lap dancing club to operate next to a convent. North Lanarkshire Council is understood to be reviewing the judgement.