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A recent High Court decision may have significant implications for takeaway food stores that also provide an element of seating for customers says commercial property agent Prop-Search.
The case, involving the bakery chain Gregg’s, was brought by Kingston-Upon-Hull City Council, which argued that the provision of seating for customers within the premises necessitated the provision of toilet accommodation for those customers. The Council was initially unsuccessful, but on appeal to the High Court, their view was upheld.
Samantha Jones, an Associate Director at Prop-Search, said; “The case was brought under the provisions of Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 which provides for the requirement of sanitary facilities in certain circumstances. This allows local authorities to require the provision of toilets at places of entertainment or other ‘relevant places’, and to maintain them. ‘Relevant places’ include places where food or drink is sold to members of the public for consumption at that place.
Guidance, however, suggests that ‘food premises’ which are predominantly a take-away operation - where customers are not encouraged to stay and consume food for a significant length of time, and provide less than 10 seats for occasional use by customers (i.e. where consumption on the premises tends to be the exception rather than the rule) - would not generally be regarded as a ‘relevant place’ within the meaning of the Act. Therefore they would not normally be expected to provide toilet accommodation for customers.
This guidance is used by many food and drink retailers which have entered into a primary authority scheme arrangement (PAS). PAS is used by businesses to get a degree of certainty over the legal parameters within which they must operate, without being subjected to enforcement policies that might be adopted by individual local authorities.
In this case Newcastle City Council was registered as Greggs’ ‘primary authority’ under PAS and had advised Greggs that its shops were not ‘Relevant Places’ and therefore not required to provide toilet facilities. However, Hull City Council issued Notices requiring Greggs to provide toilet facilities in two of its premises which Greggs failed to comply with. As Gregg’s primary authority, Newcastle City Council exercised its power to direct Hull City Council not to proceed with enforcement action.
Accordingly, Hull City Council referred the matter to the Better Regulation Delivery Office (BRDO) who endorsed Newcastle City Council's advice. Hull City Council then applied for a judicial review of this decision.
The case proceeded to the High Court where Mr Justice Kerr held that Newcastle City Council's advice was in fact wrong. He considered that it was irrelevant that most customers took their food away 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’. He reportedly added: "It is obvious that if a person sits down in a Greggs outlet at the seats provided and proceeds to eat a pasty and a fizzy drink just purchased at the counter for that purpose, that is a normal use of the premises. The fact that most customers take away their purchases and those who stay do not normally stay long, does not change that."
Hull City Council may now re-serve Notices on Greggs requiring it to provide toilet facilities in the two stores in question. Greggs can appeal to the County Court to modify or quash the Notices on the grounds that they are unfair or unreasonable but if not successful, a prosecution for failing to comply with the Notice is likely to follow - unless Greggs provides the required facilities within the period specified by the Notice or removes seating from the relevant shops.
Samantha Jones concludes: “Many local authorities have incorporated the 10 seat threshold and predominantly take-away business test into their own guidance. In light of this High Court ruling many may now look to revise their guidance and we could see an increase in the number of Notices being served requiring the installation of toilets.”
So unless the decision is appealed and the ruling reversed, anyone considering opening a food or drink business are advised to 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 - this recommends establishments with up to 25 seats should provide at least one wheelchair accessible unisex toilet.
Certainly, more consideration should now be given to the provision of toilets in takeaway stores than may previously had been the case!
Further information or advice can be obtained from Prop-Search - Tel: 01933 223300 or 01604 492000 or its website: www.prop-search.com