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Primary authority dispute unresolved

Stuart Spear29/06/2017 - 11:19

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The six year dispute appears yet to be resolved
The six year dispute appears yet to be resolved

A six-year legal battle between Hull City Council and Greggs over the provision of toilets may still be unresolved despite the bakery chain dropping its legal challenge earlier this month.

The ongoing case is one of the most high-profile disputes between a business, its primary authority, an enforcing council and Regulatory Delivery (RD), formerly known as the Better Regulation Delivery Office.

At one point the dispute threatened to undermine the very foundations of the primary authority scheme after the High Court overturned RD’s first ever determination in a dispute between the primary authority, Newcastle City Council and Hull City Council, the prosecuting authority.

In its ruling in favour of Hull in May 2016 the High Court questioned the legitimacy of RD in interpreting the law. The ruling threatens to undermine a key role of the regulatory body in determining any dispute between a primary authority and a council bringing a prosecution.

The dispute started in 2011 when Hull EHOs argued that Greggs had to provide toilets in two of its city outlets as it was providing seating for customers.

This conflicted with primary authority advice given by Newcastle EHOs to Greggs that as a takeaway with less than 10 seats a toilet was unnecessary based on a previous legal precedent involving a Newcastle sandwich shop.

The case highlights long standing confusion between many local authorities about when a food outlet is required to provide conveniences for its customers with councils applying different rules. 

Despite the primary authority guidance Hull served an improvement notice on Greggs in 2014 giving it six months to install toilets. EHOs argued the notice was being served under the Local Government Miscellaneous Provisions Act 1976 and so did not have to go through the primary authority process.

Once the notice to install the toilets expired both councils took their case to the BRDO for determination, which ruled in favour of the primary authority.

The case then went to the High Court for judicial review which ruled in favour of Hull City Council. The court also argued that RD had ‘misdirected itself in law’ by ruling in favour of the primary authority.

In the final twist to this long and complex dispute the secretary of state for Business Energy and Industrial Strategy, Greg Clark MP, and Greggs then launched a joint appeal against the High Court decision.

The case was supposed to have been heard in the Court of Appeal in London on 13 and 14 June. BEIS first withdrew its appeal followed by Greggs.

However, despite the withdrawal of the appeal the case may yet be unresolved with Hull and Newcastle still unable to agree.

A Newcastle City Council spokesperson said today: ‘Newcastle City Council is primary authority for Greggs on health and safety matters across the country. There is inconsistent guidance given by local authorities on how businesses plan customer toilet provision and local authorities interpret this legislation in different ways.

‘The Greggs shop in Hull has ten seats in total. Given the small size of the premises and the nature of the undertaking, the advice is that customer toilets would be unnecessary in this case.’

A Hull City Council spokesperson, on the other hand, took the view that Greggs still needs to take action.

‘We are pleased with the decisions of the Secretary of State and Greggs to withdraw their appeals. This means that the original decision of the High Court still stands and that the advice given to Greggs by Newcastle City Council as their Primary Authority as to what constitutes a “relevant place” was - and is – wrong,’ said the spokesperson.

‘We will now work with Gregg’s with the aim of achieving local compliance, providing any advice and support as necessary. If local compliance is not achievable we have a duty to consider taking further action but hope that this will not be necessary.’

In a statement Greggs said: ‘Following legal advice and the withdrawal from the court proceedings of the Department for Business, Energy and Industrial Strategy we too have decided to withdraw from the appeal against the decision of the High Court.

‘We have revised guidance from Newcastle City Council as our Primary Authority regarding the installation of sanitary facilities in shops with seats, which we believe meets the requirements of the law. We will continue to abide by Newcastle's guidance, which is that where a local authority has a policy on the provision of sanitary facilities for customers in food to go outlets we would not have more than ten seats without such sanitary provision in the absence of that Local Authority' s approval.’

A RD spokesperson said: ‘We continue to work closely with the parties involved to reach an agreement in the case.’

The lack of resolution to this ongoing case still leaves a number of unanswered question. Not least is where this leaves RD when it comes to determining disputes between a primary authority and a council taking legal action.













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