Takeaways - and sanitary provision (toilets)

A recent High Court decision may have significant implications for takeaway food stores that also provide an element of seating for customers.

In summary, the case, involving Gregg’s the bakers and purveyors of sandwiches, was brought by Hull City Council, which argued that the provision of seating for customers within the premises necessitated the provision of toilet accommodation for those customers. The council were initially unsuccessful but on appeal to the High Court, the court has upheld the council’s view. The matter is likely go on appeal to the Court of Appeal.

The case was brought under the provisions of section 20 of the Local Government (Miscellaneous Provisions) Act 1976 which provides for the requirement of sanitary facilities in certain circumstances. This allows local authorities to require the provision of toilets at places of entertainment or other ‘relevant places’, and to maintain them. ‘Relevant places’ include places where food or drink is sold to members of the public for consumption at that place (‘food premises’).

Guidance suggests however that ‘food premises’ which are predominantly a take-away operation, where customers are not encouraged to stay and consume food for a significant length of time, and provide less than 10 seats for occasional use by customers (i.e. where consumption on the premises tends to be the exception rather than the rule) would not generally be regarded as a ‘relevant place’ within the meaning of the Act and therefore would not normally be expected to provide toilet accommodation for customers.

Hull City Council said that approach could not be right, as such an interpretation gave the two local Greggs' bakeries an "unlawful and unfair" commercial advantage.

In the ruling at a hearing in Leeds on Tuesday, the judge decided that Hull council's claim was "well-founded". The judge apparently added: "It is obvious that if a person sits down in a Greggs outlet at the seats provided and proceeds to eat a pasty and a fizzy drink just purchased at the counter for that purpose, that is a normal use of the premises. The fact that most customers take away their purchases and those who stay do not normally stay long, does not change that."

If not overturned, this decision has the ability to affect a considerable number of takeaway stores which provide limited customer seating, but do not provide toilet accommodation for those customers.

We will keep you advised of any further developments.