A challenge made by one Local Authority against another in relation to Primary Authority "assured advice" was bound to happen sooner or later, but now it has, what does it mean?
The first case to test the waters is Kingston upon Hull City Council v Newcastle City Council and Greggs Plc, more widely known as 'the Greggs' Case'. It centred around whether or not toilet facilities should be installed in two of Greggs' restaurants in Hull. Hull City Council insisted that they should be installed and issued Greggs with notices giving them six months to comply. That was despite the fact that Greggs' primary authority partner (Newcastle) had considered the relevant legislation and issued guidance stating that it was not necessary to do so. Hull took the argument to the BRDO (now Regulatory Delivery) asserting that Newcastle had erred in its interpretation of the law and that Greggs would be provided with 'an unlawful and unfair' advantage over other establishments if Hull could not exercise its enforcement powers. The BRDO found in favour of Newcastle and Greggs, stating that the advice was: a) an informed view of the law; b) consistent with relevant case-law; and c) had been accepted by other local authorities. Hull, not satisfied with this outcome, decided to judicially review the decision.
The High Court has now (May 2016) ruled in favour of Hull, and some think that this may potentially undermine the status of primary authority advice. It seems, however, that the ruling goes somewhat against the grain, and as such, Newcastle and Greggs are currently in the process of appealing the High Court's decision to the Court of Appeal. The case is therefore by no means closed and this is unlikely to be the final word on the matter.
The Government introduced the Primary Authority scheme under the Regulatory Enforcement and Sanctions Act 2008 ('2008 Act') to allow businesses to be involved in their own regulation. It enables businesses to form a legally recognised partnership with one local authority (the ‘primary authority’), so that the authority in question can provide the business in question with assured advice about how they should comply most efficiently with the relevant regulation. That advice will then be taken into account by other local authorities when they are dealing with the business in question e.g. when carrying out inspections or addressing non-compliance. This has been welcomed by most businesses and organisations.
Facts of the Case
Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 provides that a local authority may, by serving a notice on the owner or occupier of a relevant place in the area of the authority, require him to provide sanitary appliances of such kinds and numbers as are so specified. Relevant place is defined as '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'. An unreported 1997 county court case had held that a sandwich bar was not a 'relevant place' on the basis that the customers that actually ate at the premises were 'the exception rather than the rule'. Relying upon this judgment, Newcastle advised Greggs that its restaurants were not a relevant place as their function was primarily as a take-away establishment. Newcastle also based their advice on the fact that the establishments in question were providing no more than 10 seats for occasional use. Those views were ultimately endorsed (save for any numerical threshold) by the BRDO, who also found that even if Newcastle's definition of 'relevant place' was incorrect, it was still an informed professional view of the law, and therefore 'correct' within the meaning of the statutory provision (Schedule 4, paragraph 1(3) to the 2008 Act).
Ultimately, Kerr J (sitting in the High Court) disagreed with Newcastle's assessment of 'relevant place', stating that the advice 'imported into the definition a non‑existent numerical threshold of 10 seats, and a non‑existent test of whether take‑away custom or sit‑down custom was the predominant part of the business.' The Judge also rejected any argument by BRDO to the effect that such an error was irrelevant and stated that they could not lawfully be satisfied with advice that proceeded from a wrong understanding of the meaning of 'relevant place'. As he pointed out, the construction of a statutory provision is a matter of law with only one right answer. To allow more than one interpretation would subject potentially regulated persons to different law from that which applies to its competitors and colleagues in the market place, creating unfair advantages. More than that though, it was for the courts, not the executive, to determine the 'correct' interpretation of a statutory provision. He went on to add:
"I accept that the statutory purpose of the 2008 Act is that the regulated person should know where it stands and expect consistency of treatment as between one local authority and another. But the 2008 Act only enacts that purpose up to a point. It stops short of appointing the primary authority as the statutory regulator of the relevant regulated activity outside its own area. Parliament could have done that, but did not. The 2008 Act only gives the primary authority power to issue 'advice and guidance' to authorities outside its own area."
Importantly, Kerrr J did accept that the primary authority's advice and guidance 'must obviously be taken very seriously' by the enforcing authority and 'should be followed unless there is a good reason not to do so'.
Where the advice is not followed by the local authority Kerr J states that "The Secretary of State, if he consented to a reference, had to direct or uphold a direction, stopping the enforcement action if the advice was correct and was not followed. If the enforcing authority decided to take enforcement action on the basis of a policy which ignored the primary authority's advice and guidance on the discretionary elements of the regime, then it was likely, though not inevitable, that it would be stopped from doing so." Where particular issue has been taken is when the advice is based on an incorrect interpretation of the law.
It should be borne in mind that this case only deals with discretionary elements of the law i.e. where an authority 'may' act in a certain way. In the field of health, safety, food and fire law most of it will not be discretionary and the primary authority intervention will be on firmer ground. However, the interpretation of the law must be correct, which in this case was disputed.
At the end of the day, whether or not Newcastle's classification of a relevant place is correct will no doubt be dealt with by the Court of Appeal. Nevertheless, in the meantime it is worth highlighting the fact that a local authority still has a discretion as to whether or not it serves a notice under s.20 (even where it considers the establishment to be a 'relevant place'). In other words, there is no requirement to serve a notice in every single case.
Where does this leave us then? It's still the position that a primary authority is required to provide advice and guidance on relevant regulated matters. However, whilst that discretionary advice and guidance should generally be followed by other local authorities, this case provides that it is just that - 'guidance' and is not binding. This obviously creates uncertainty in certain areas, which is contrary to the intention behind the primary authority scheme (particularly where even the BRDO considered the advice in question to be correct). Plainly, consistency is crucial. We therefore look forward to receiving the Court of Appeal's decision in due course. Hopefully clarity will be restored.