Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 empowers local authorities to issue a Notice to the owner or occupier of a "Relevant Place" requiring it to provide toilet facilities by a specified date. Under the legislation a “Relevant Place” includes a place "for the sale of food or drink to members of the public for consumption at that place". Failure to comply with the Notice is a criminal offence punishable by a fine.
Newcastle Council was registered as Greggs’ "primary authority" under PAS. Newcastle advised Greggs that its shops were not “Relevant Places" (and therefore not required to provide toilet facilities) provided the site had less than 10 seats and its predominant business was takeaway sales. Greggs was entitled to rely on Newcastle's advice for all its shops throughout England and Wales.
Hull Council issued Notices requiring Greggs to provide toilet facilities in two of its premises. Greggs did not comply with the Notices and Newcastle exercised its power as Greggs’ primary authority to direct Hull not to proceed with enforcement action.
Hull referred the matter to the Better Regulation Delivery Office (BRDO) who endorsed Newcastle's advice. Hull applied for a judicial review of BRDO's decision.
On judicial review it was held that Newcastle's advice was wrong. The fact that most customers took their food away was irrelevant as was the fact that the stores had less than 10 seats. If the shops sold food and drink for consumption on the premises they were “Relevant Places”.
Hull may now serve a Notice on Greggs requiring it to provide toilet facilities in the two stores. Greggs can appeal to the County Court to modify or quash the Notice on the grounds that it is unfair or unreasonable. If Greggs' appeal is not successful, a prosecution for failing to comply with the Notice is likely to follow (unless Greggs provided the required facilities within the period specified by the Notice or removes seating from the relevant shops).
How Will This Impact Food Retailers?
Many local authorities had incorporated Newcastle's 10 seat threshold and predominant takeaway business test into their own guidance. In light of the judicial review local authorities are likely to revise their guidance and some increase in the number of Notices being served requiring the installation of toilets in shops is anticipated.
Unless the decision is appealed and the ruling reversed, anyone planning to open a food or drink business or acquire a store for the sale of food or drink should carry out thorough due diligence and consider any guidance published by the relevant local authority and the relevant British Standard BS6465-1:266 + A1:209 which recommends establishments with up to 25 seats should provide at least one wheelchair accessible unisex toilet. If the relevant premises being acquired do not conform to the existing guidance provided by the local authority or the British Standard we would recommend contact is made with the relevant local authority to establish its policy in this area.
If a Notice is served expert advice should be taken as soon as possible or alternatively consider removing all seating and converting to takeaway only sales.
Certainly, more consideration should now be given to the provision of toilets in takeaway stores than may previously had been the case!