Flushed Away: A High Court Challenge for Primary Authorities

1. Flushed Away: A High Court Challenge for Primary Authorities Jonathan Kirk QC and Anna Medvinskaia| GOUGH SQUARE CHAMBERS

2. Overview Sanitary Appliances Page 3 Page 4 Page 5 Pages 6-7 Page 8 Greggs Primary Authority Advice Sections 27 and 28 RESA Kingston upon Hull

3. Overview BRDO Decision Page 9 Page 10 Page 11 Page 12 Page 13 Schedule 4 of RESA Primary Authority Handbook Judicial Review Appeal

4. SANITARY APPLIANCES s.20 Local Government (Miscellaneous Provisions) Act 1976 ….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. …"relevant place" means… a place which is normally used or is proposed to be normally used for …. the sale of food or drink to members of the public for consumption at the place.

5. GREGGS • Business model: • Not fine dining establishments – sausage rolls, pies and pastries. • 95 % take-away. • 10 seats or fewer for those that stay. • Separate prices for eat-in and take-away customers. • “Greggs’ takeaway shop with few seats did not sensibly require the installation of toilets for the few customers that might briefly eat a sausage roll from a paper bag inside the shop.” • The legislation (s.20 of LGMP Act) is discretionary.

6. PRIMARY AUTHORITY ADVICE Published on Primary Authority register: If the main use of the shop is determined to be takeaway sales and if no more than 10 seats are provided for occasional customer use, the requirement to provide customer toilets under the provisions of Section 20 of the LGMP 1976, would not be applicable as the premises should not be classed as a "relevant place". 
 The definition of a "relevant place" was determined in Newcastle following an appeal against an Improvement Notice.. and a ruling by Judge Crawford stating that a premises would not be a "relevant place" if the nature of the business was predominantly take-away.

7. SECTION 27 OF RESA • Advice and guidance: • (1) The primary authority has the function of— • giving advice and guidance to the regulated person in relation to the relevant function; • giving advice and guidance to other local authorities with the relevant function as to how they should exercise it in relation to the regulated person.

8. SECTION 28 OF RESA • Enforcement action: • Subject as follows, a local authority other than the primary authority (“the enforcing authority”) must notify the primary authority before taking any enforcement action against the regulated person pursuant to the relevant function. • If the primary authority determines within the relevant period that the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), it may within that period direct the enforcing authority not to take the enforcement action.

9. KINGSTON UPON HULL • (the enforcing authority): • A Greggs shop is a ‘relevant place’ for the purposes of the legislation • PA misunderstood the meaning of ‘relevant place’ • Customers ‘normally’ eat inside • Served notices on Greggs in 2014 under s.20 • Notified PA of intended prosecution • Prosecution blocked by PA • Hull appealed to BRDO under Schedule 4 of RESA

10. BRDO DECISION • There may be more than one interpretation of a provision such as section 20. • The advice issued by the PA was informed and professional view of law. • Provides a reasonable guide to the likely construction by a court of "relevant place” and reasonableness of the exercise of the discretionary power to serve a s.20 notice. • Evidence to demonstrate that the PA Advice has been accepted by other local authorities as reflecting a reasonable and proportionate interpretation.

11. SCHEDULE 4 OF RESA The test BRDO applies on a Schedule 4 reference: (a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), (b) the advice or guidance was correct, and (c) the advice or guidance was properly given by the primary authority.

12. PRIMARY AUTHORITY HANDBOOK “To provide value to the business, Primary Authority Advice must be properly given, within the statutory framework, and it must also be a legally correct interpretation of the law. This does not mean that the primary authority is giving a definitive interpretation of the law, or that it is 'usurping the role of the courts'. It is providing the business with an informed and considered professional view of the law, which is supported by a commitment that the regulatory community will stand by this interpretation. It is quite possible that there will be interpretations that differ from those agreed by the primary authority and that are equally valid, but this does not of itself make the Primary Authority Advice incorrect.”

13. JUDICIAL REVIEW • Kerr J: • Judicial review was granted, BRDO decision quashed, PA advice declared unlawful. • PA advice was incorrect: Greggs was ‘normally used’ for eating in. • There is only ever one ‘correct’ interpretation; matter for the court. • The PA Handbook guidance on ‘correct’ was wrong and unlawful. • PA error was material.

14. APPEAL • BRDO and Greggs granted permission to appeal: • PA and BRDO did not err in law; words ‘normally used’ accommodate a range of possible meanings. • Kerr J misunderstood PA Scheme and role of BRDO. • Materiality.