A High Court judge has upheld Hull City Council’s judicial review claim over advice given by Newcastle City Council to Greggs under the ‘Primary Authority’ scheme.
Hull has been seeking to enforce section 20 of the Local Government (Miscellaneous Provisions) Act 1976 so as to require the provision of toilets at two of the bakery group’s 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:
- The advice was soundly based upon the purpose and content of the disputed provision, and represented an informed and professional view of the law;
- It was consistent with relevant case-law; and
- 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.
However, the judge also gave permission for the case to go to the Court of Appeal.
The written judgment is expected to be published later.
A spokesperson for the Department of Business, Innovation & Skills, which is responsible for the BRDO, said: “We note the judgment of the court and are considering the next steps. Primary Authority continues to give businesses the confidence to invest, grow and create jobs for people, by providing them with assured regulatory advice.”
Newcastle City Council said it would not be commenting at this stage pending any appeal by the Secretary of State for Business, Innovation & Skills.
Local Government Lawyer has approached Hull for comment.
Ben Williams of Kings Chambers acted for Hull City Council.