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Wake-up call: Do you need to provide toilet facilities?

17 June 2016
Wake-up call: Do you need to provide toilet facilities?

After a new ruling, Greggs must install toilets at some of its sites. John Martyn breaks down the consequences for hospitality businesses

The problem

I own a chain of coffee shops. The focus is on takeaway sales but some shops have seating. I read in the newspaper that Greggs was prosecuted for failing to provide toilet facilities for its customers. Do I need to install toilets in my shops?

The law

The Local Government (Miscellaneous Provisions) Act 1976 empowers local authorities to serve a notice on the owner or occupier of a "relevant place" (including places used for "the sale of food or drink to members of the public for consumption at that place") requiring the provision of sanitation appliances (toilets and wash basins) by a particular date. A person served with a notice can appeal to the county court on the grounds that the proposed requirement is unreasonable or that it would be fairer to serve the notice on another person, for example the landlord.

If no appeal is made or the appeal is unsuccessful, the owner/occupier can be prosecuted by the local authority for failure to comply with the notice by the specified date.

Greggs had a Primary Authority Scheme (PAS) relationship with Newcastle Council. Newcastle advised that Greggs shops were not "relevant places" provided that:

They had fewer than 10 seats; and

Their predominant use was for takeaway sales.

Under PAS, Greggs was entitled to rely on Newcastle's advice throughout England and Wales.

Hull Council issued notices requiring Greggs to provide sanitation appliances in two shops. Newcastle directed Hull to cease its enforcement action. The Better Regulation Delivery Office (BRDO) subsequently approved Newcastle's advice.

Hull successfully applied for judicial review of BRDO's decision and Mr Justice Kerr found no basis for either the 10-seat threshold or the predominant trade test.

Expert advice

The decision is subject to appeal, but the current position is that Hull (and any other authority) can serve notices on Greggs requiring the provision of sanitation facilities in its shops. A prosecution is likely if facilities are not installed within the required period.

Newcastle's advice was shared with all English and Welsh councils. Many adopted policies reflecting Newcastle's (incorrect) view of the law. These councils may revise their policies and there could be an increase in the service of notices and, consequently, prosecutions.

To-do checklist

The Act does not apply to takeaway-only businesses. There is no general obligation to provide toilet facilities. The requirement arises on the expiry of the period specified in a local authority notice.

If a notice is served

The notice will specify a date for compliance. If compliance is impractical you should take professional advice on an appeal to the county court. The compliance period will be extended while an appeal is in progress.

Alternatively, you may decide to cease providing seating and revert to takeaway-only sales.

If you are taking on new premises

You should consider any guidance by your local authority (this may change following the Greggs case). If there is no published advice, British Standard (BS, 6465-1:2006 + A1:2009) provides a useful yardstick, recommending that establishments with up to 25 seats should provide, as a minimum, one wheelchair accessible unisex toilet (this can be shared with your staff).

It may also be worthwhile consulting the local authority about your plans.

Beware

A local authority is likely to prosecute in the event of non-compliance with a notice. The penalty is a fine. If you continue to trade without providing the required facilities, this constitutes a further offence for which a fine of £50 for each day of non-compliance can be imposed.

An owner of an unincorporated business will be prosecuted as an individual and gain a personal criminal conviction.

A local authority may also bring confiscation proceedings following conviction in order to deprive the business of any financial benefit accrued from the offending.

Contact

John Martyn is an associate at law firm Howard Kennedy

john.martyn@howardkennedy.com

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