A case concerning the provision of customer toilets in takeaway outlets is to go before the Court of Appeal.
The case concerns a dispute over whether two fast food outlets in Hull, with fewer than ten seats, should be obliged to provide toilet facilities for customers.
If the Court of Appeal follows the recent decision of the High Court, retailers could find themselves obliged to provide customer toilets regardless of the number of seats at the outlet.
Such installation would, in many cases, involve having to obtain landlord's consent to alterations, cost in carrying out the works, disruption to customers, and loss of floor space.
Advice given by the Council of the City of Newcastle upon Tyne (Newcastle) to other local authorities, including Kingston upon Hull City Council (Hull) included a statement that: "If the main use of the shop is determined to be takeaway sales and if no more than 10 seats are provided for occasional customer use, the requirement to provide customer toilets under section 20 of the Local Government (Miscellaneous Provisions) Act 1976 would not be applicable as the premises should not be classed as a 'relevant place'."
Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act) provides that a local authority may require the owner or occupier of a "relevant place" to provide toilets and washbasins free of charge. The 1976 Act defines a "relevant place" as a place that is normally used, or is proposed to be normally used, for the sale of food and drink to members of the public for consumption at the place. Premises will also fit within the definition if they are only used occasionally for this purpose.
Newcastle had used a ten seat threshold in its advice following a ruling by Judge Crawford, in the County Court, stating that premises would not be a 'relevant place' if the nature of the business was predominantly take-away.
Hull did not agree with Newcastle's advice and served notices on the outlets, under section 20 of the 1976 Act, requiring the installation of toilets. Greggs did not comply with the notices and a battle ensued. Hull applied to the Secretary of State asserting that Newcastle's advice was not correct. The meaning of 'relevant place' in its guidance was wrong, and Hull should be able to take enforcement action.
Newcastle's argument was that the relevant guidance indicated that its advice did not have to be correct; it just had to represent an 'informed and considered professional view of the law.' Its advice did this. The Secretary of State agreed.
However, the High Court rejected this argument, saying "The BRDO [the Secretary of State's executive agency] misdirected itself in law by proceeding on the basis that Newcastle's advice and guidance could be 'correct' within the statutory meaning even if that advice and guidance was founded on a misinterpretation, albeit an informed and professional misinterpretation, of the law." It was fundamentally wrong for Newcastle's advice to state that Greggs did not need toilet facilities in outlets with fewer than ten seats, or where the trade was mainly take-away. This was not the law.
However, this is not the end of the story. The judge granted leave to appeal and the Court of Appeal will be asked to look at what 'correct' means under the relevant guidance.
The impact could be huge for fast-food retailers as the advice of numerous authorities could be incorrect. This could lead to notices being served under section 20 of the 1976 Act and retailers being required to install toilet facilities in outlets where customers are able to consume food, regardless of the number of seats.
Retailers will then need to decide whether the provision of no facilities at all for consumption on the premises is a more viable option than the installation of toilet facilities.
Retailers may even be required to install toilet facilities where only a counter where customers can consume food and drink is provided.
The Court of Appeal's decision will be critical.
Contributor: Alexandra Holsgrove Jones
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