Local government – Enforcement powers – Provision of sanitary appliances at “relevant place” – Claimant local authority seeking to serve notice on food retailer requiring installation of sanitary facilities on premises used for sale and consumption of food – Primary authority issuing direction against enforcement action – Defendant secretary of state confirming direction – Claimants applying for judicial review – Whether place selling takeaway food but providing some seating and tables for customers “relevant place” for purposes of enforcement powers – Whether premises normally used for sale of food or drink to members of public for consumption at place – Application granted
The defendant secretary of state nominated the first interested party as the primary authority for the business of the second interested party, to exercise certain functions, including giving advice and guidance in respect of enforcement of the statutory functions of other local authorities including the claimant enforcement authority. Under section 20 of the Government (Miscellaneous Provisions) Act 1976, a local authority might require, by serving a notice on the owner or occupier of a “relevant place”, the provision of sanitary appliances free of charge.
The first interested party issued advice to the claimants and other local authorities providing that, if the main use of a shop was take-away sales and if no more than ten seats were provided, the requirement to provide customer toilets in section 20 of the 1976 Act would not apply. A dispute arose between the second interested party and the claimants in relation to two of its outlets in Hull, which the claimants considered ought to have toilets and washbasins.
The claimants served two notices under section 20, requiring the provision of a toilet and washbasin, with a warning of criminal prosecution for failure to comply. The second interested party did not comply and the first interested party wrote to the claimants, saying that, if they took any further enforcement action, it would issue a direction stopping it. The first interested party then issued revised advice and a direction to the claimants not to proceed with any enforcement action against the second interested party.
The claimants referred to the defendant secretary of state’s Better Regulation Delivery Office (BRDO), under Schedule 4 to the Regulatory Enforcement and Sanctions Act 2008, asserting that the advice of the first interested party was not correct because it misstated the law on the meaning of “relevant place” within the meaning of section 20(9)(a)(ii) of the 1976 Act, that the decision was wrong and that it was absurd and inequitable for it to be able to exercise its enforcement powers properly against other businesses, but not against the second interested party. The BRDO held that the advice was correct for the purposes of paragraph 1(3) of Schedule 4 to the 2008 Act and confirmed the direction. The claimants applied for judicial review.
Held: The application was granted.
(1) In determining a reference by an enforcement authority made pursuant to Schedule 4 to the 2008 Act, paragraph 1(3)(b) required the secretary of state to consider whether the proposed enforcement action was inconsistent with the advice or guidance previously given by the primary authority, whether the advice or guidance was correct and whether it had been properly given by the primary authority. If the secretary of state was not satisfied as to those matters, the direction had to be evoked. The correct construction of statutory provisions was a matter for the court. If the construction adopted was materially different from what the court decided was the law, the advice could not be correct. The guidance documents were wrong to suggest otherwise. It was critical that the primary authority got the law right; otherwise the regulated person was subjected to different law from that which applied to its competitors and colleagues in the market place. That would violate the principle of equality before the law. In the present case, the claimants would be unable to use their enforcement powers against the second interested party in the same manner and to the same extent as against all other businesses. The statutory and non-statutory guidance issued in relation to the 2008 Act was wrong to speak of more than one tenable construction. The court’s function was being usurped because the wrong interpretation of the law was applied to the regulated person by means of wrong advice and guidance backed up by a statutory veto on enforcement action by an authority which had the temerity to apply the law correctly.
(2) The advice here had proceeded on a clear misconstruction of section 20(9) of the 1976 Act as it wrongly stated that a branch of the second interested party was not a relevant place if it had fewer than 10 seats and most of the customers took their food away. Premises constituted a “relevant place” within section 20(9)(a)(ii) if they were normally used for the sale of food or drink to the public for consumption at the place. The statutory test did not impose a minimum threshold number of seats, or a requirement that a certain percentage of customers purchase food or drink for consumption on the premises before the “relevant place” definition was satisfied. If it was normal for customers to sit down and eat their food on the premises, the branch was a relevant place.
(3) Accordingly, the advice issued by the first interested party had been based on a misinterpretation of the law and the BRDO had misdirected itself in law by proceeding on the basis that the advice and guidance of the first interested party could be correct within the statutory meaning even if it was founded on a misinterpretation, albeit an informed and professional misinterpretation, of the law.
Ben Dylan Williams (instructed by Kingston upon Hull City Council) appeared for the claimants; Andrew Kinnier (instructed by the Treasury Solicitor) for the defendant; Anna Medvinskaia (instructed by Newcastle upon Tyne City Council) appeared for the first interested party; Jonathan Kirk QC (instructed by Cubism Law) appeared for the second interested party.
Eileen O’Grady, barrister
