Kingston Upon Hull City Council v Secretary of State for Business, Innovation and Skills The Council of the City of Newcastle Upon Tyne (First Interested Party) Greggs Plc (Second Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Kerr
Judgment Date08 April 2016
Neutral Citation[2016] EWHC 1064 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date08 April 2016
Docket NumberCO/2113/2015

[2016] EWHC 1064 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

1 Oxford Row

Leeds

West Yorkshire

LS1 3BG

Before:

Mr Justice Kerr

CO/2113/2015

The Queen (on the application of)

Between:
Kingston Upon Hull City Council
Claimant
and
Secretary of State for Business, Innovation and Skills
Defendant

and

The Council of the City of Newcastle Upon Tyne
(First Interested Party)

and

Greggs Plc
(Second Interested Party)

Mr Ben Dylan Williams appeared on behalf of the Claimant

Mr Andrew Kinnier appeared on behalf of the Defendant

Ms Anna Medvinskaia appeared on behalf of the First Interested Party

Mr Jonathan Kirk QC appeared on behalf of the Second Interested Party

APPROVED JUDGMENT

Mr Justice Kerr
1

This case arises from a dispute about the lack of toilet and washing facilities at two fast food outlets in Hull. The City Council, the claimant ("Hull"), is not happy about that. It believes the commercial operator of the outlets (the second interested party ("Greggs") should provide those sanitary facilities and that Hull is being wrongly prevented from exercising its power to require Greggs to provide them on pain of criminal proceedings.

2

Hull complains that the first interested party, Newcastle City Council ("Newcastle") and the defendant's ("the Secretary of State's") executive agency, the Better Regulation Delivery Office ("BRDO"), have unlawfully made decisions whose effect is that Greggs has become unlawfully freed from its obligation to provide sanitary facilities at those two fast food outlets. Hull says this gives Greggs an unlawful and unfair commercial advantage over other providers of food at cafés in Hull where food is consumed on as well as off the premises.

3

The Secretary of State, supported by Greggs, considers that Newcastle has acted properly in issuing guidance and advice to Hull and other authorities, the effect of which is that Greggs need not provide such facilities at the two outlets and others like them. The case raises difficult and important issues arising from a novel statutory method of local authority regulation introduced by the Regulatory Enforcement and Sanctions Act 2008 ("the 2008 Act").

4

In slightly more detail, the dispute arises from a decision by the BRDO made on 11 February 2015 to uphold as "correct" certain advice and guidance given by Newcastle in respect of enforcement of the statutory functions of other local authorities including Hull, and the statutory obligations of Greggs concerning the provision of sanitary facilities at outlets such as those in Hull, where simple take away food is sold, but where some seating is provided for customers who prefer to stay, usually for a short time only, sit down at the seating and tables provided and eat the food on Greggs' premises.

5

To determine the issues, I have to look at the interaction of two statutory schemes and their application to the facts in this case, in the light of the usual public law principles. The first statutory scheme is the one governing the provision of sanitary facilities at cafés, bars and fast food outlets. I start with section 87(1) of the Public Health Act 1936 ("the 1936 Act"), as substituted by a provision in the Local Government Act 1972, which provides so far as material that a local authority may provide sanitary conveniences in proper and convenient situations.

6

Under the original 1936 Act, section 89(1) provided that a local authority:

… may by notice require the owner or occupier of any inn, public-house, beer-house, refreshment-house or place of public entertainment to provide and maintain in a suitable position such number of sanitary conveniences for the use of persons frequenting the premises as may be reasonable.

7

And there were enforcement provisions and a right of appeal. That was the forerunner of what became section 20 of the Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act"), to which I come next. That provides, as amended but not materially, at section 20(1)(a) and (d) that a local authority may require, by serving a notice on the owner or occupier of a "relevant place", that person to provide "sanitary appliances", i.e. toilets and washbasins, free of charge.

8

Failure to comply with a notice is an offence. However, the person served with a notice can appeal against it to the county court (see section 21 of the 1976 Act), on the ground that a requirement of the notice is unreasonable. On such an appeal the county court, so far as material here, can either quash the notice or dismiss the appeal. It cannot modify the notice, e.g. by reducing the number of toilets that must be provided. As long as the notice is served on the right person, the county court judge must either quash it completely or dismiss the appeal.

9

The notice can only be served on the owner or occupier of a "relevant place". That is defined in section 20(9) materially as follows:

"relevant place" means any of the following places—

(a) a place which is normally used or is proposed to be normally used for any of the following purposes, namely—

(i) the holding of any entertainment, exhibition or sporting event to which members of the public are admitted either as spectators or otherwise,

(ii) the sale of food or drink to members of the public for consumption at the place;

(b) a place which is used on some occasion or occasions or is proposed to be used on some occasion or occasions for any of the purposes aforesaid; ….

10

There is also power to serve an "occasional notice", but I do not think it is necessary to go into that. This case is concerned with regular trade of the type carried out by Greggs and its many competitors in the instant food and drink trade.

11

Only one county court decision is known to have been made on an appeal against a notice. The appeal was brought by a Mr Millar, the owner of Millar's Sandwich Bar in Grainger Street, Newcastle. No transcript of the decision is available. There is an unapproved note of what the judge, HHJ Crawford, said when giving judgment on 21 March 1997.

12

It appears, if the note is accurate, that Millar's had seven stools for sitting and eating and drinking, beneath benches in the front window. It appears that what happened was as follows. There was an inspection of the premises at lunch time when they were busy. Only two people were sitting down. The judge said that section 20 would not apply were the proprietor to remove the seats because a "relevant place" is one where the sale of food or drink is for consumption in the place.

13

The judge, having seen the sandwich bar, said that it could be seen that it provided facilities to office workers nearby. He declared himself unsatisfied that it was normally used for the sale of food or drink for consumption on the premises as the great majority of the customers do not eat there. He said that the Council had not satisfied him on the point, and that the premises were normally used for the purchase of food to be eaten elsewhere. The person who eats at the premises was, he thought, the exception rather than the rule.

14

He appears to have decided that the premises thus did not fall within section 20. He went on to refer to the reasonableness of the notice and stated, again assuming the note is accurate, that it seemed to him that Millar's was an establishment at which it would be unreasonable to require the proprietor to provide any toilets, for to provide even one would destroy the business given the small size of the premises.

15

The judge therefore allowed Mr Millar's appeal. Newcastle did not appeal against the ruling, perhaps not surprisingly in view of the finding that a requirement to install even one toilet would destroy the business. There was therefore no means of questioning the judge's view of what constituted a "relevant place". Perhaps chastened by its defeat in court, Newcastle changed its attitude radically and thereafter based its policy on the judge's decision.

16

I come next to look at the second relevant statutory scheme. In the mid 2000s, central government was considering ways of lifting the burdens on business arising from local authority regulation. Government came up with the idea of a novel form of regulation which, it reasoned, would help businesses know what they had to do to achieve compliance with their regulatory obligations and avoid enforcement action, including prosecution.

17

The core of the idea was that commercial concerns could enter into statutory "arrangements" with a "primary authority" nominated as such by, and with the approval of, the Secretary of State; and that the statutory arrangements would be treated as compliance with the relevant regulatory obligations of the commercial party which was to be the "regulated person".

18

The procedural machinery to give effect to the regime was to be something of a merry-go-round. The "primary authority" would also give "advice and guidance" to other authorities; and those other authorities, if they chose to take enforcement action against the regulated person, could be stopped from doing so by the primary authority issuing a direction to that effect; but the Secretary of State could then decide, on a reference, whether such a direction was properly given and should stand, or whether it should be revoked leaving the other authority free to take the contemplated enforcement action.

19

All that machinery was to operate alongside the continuing appellate jurisdiction of the county court, and the criminal jurisdiction of the magistrates' court, both of which I have already mentioned. One might have thought all those various remedies and procedures would...

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