Greggs and government department withdraw appeals in ‘Primary Authority’ case

Bakery group Greggs and the Department for Business, Energy and Industrial Strategy have withdrawn their appeals over a High Court ruling that incorrect advice had been given under the ‘Primary Authority’ scheme.

In April 2016 Mr Justice Kerr upheld Hull City Council’s judicial review claim over the advice Newcastle City Council gave to the bakery group via Primary Authority, which allows businesses to form a statutory partnership with a single authority for regulatory advice.

A spokesman for Hull said: “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. 

“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.”

The background to the dispute was Hull seeking to enforce section 20 of the Local Government (Miscellaneous Provisions) Act 1976 so as to require the provision of toilets at two of Greggs’ establishments in the city.

The council applied to the Better Regulation Delivery Office (BRDO; now part of the new Regulatory Delivery directorate) for a determination.

The key question was the correct interpretation of section 20 and in particular the definition of ‘relevant place’ in s. 20(9).

BRDO concluded in February 2015 that the Primary Authority advice issued by Newcastle was “correct” for the purposes of Schedule 4, Paragraph 1(3) of the Regulatory Enforcement and Sanctions Act 2008) because:

1. The advice was soundly based upon the purpose and content of the disputed provision, and represented an informed and professional view of the law;
2. It was consistent with relevant case-law; and
3. Evidence demonstrated that since June 2011 the advice issued by Newcastle City Council has been accepted by other local authorities as reflecting a reasonable and proportionate interpretation of section 20 of the 1976 Act.

BRDO therefore confirmed the direction of the Primary Authority (Newcastle). It was the first ever such determination.

Hull subsequently took the case to the High Court. BRDO, Newcastle and Greggs maintained that the original advice was correct.

Mr Justice Kerr ruled in favour of Hull, quashed the BRDO’s decision and ordered that Hull’s legal costs be paid. His ruling in Kingston Upon Hull City Council, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors [2016] EWHC 1064 can be found here.

The judge said: “….because the decision maker is Hull and not Newcastle, Hull will need to satisfy itself that the advice and guidance from Newcastle is satisfactory, correct in law and rational in its treatment of discretionary considerations.

“Here, as to the former (correctness in law), Hull rightly perceived that this was not the case, and the Secretary of State failed to correct Newcastle's error of law. It follows that the claim is well founded. As to the latter, advice and guidance on discretionary elements of the regime must be built on the rock of sound law and not on the shifting sands of a tenable but wrong account of the law.”

A BEIS spokesman said today: “I can confirm that in May the Government decided to not continue a legal challenge regarding a determination under Primary Authority brought by Hull City Council. We continue to work closely with the parties involved to reach an agreement in the case.”

He added that since the Primary Authority scheme was introduced eight years ago there had only been two requests for Government to give a determination, with the majority of disagreements resolved quickly and informally between local authorities.

A Greggs spokesperson 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."