Allan Rich Seafoods Ltd & Anor, R (on the application of) v West Lindsey District Council & Anor

Approval under the post-2006 food hygiene regime attaches to the food business or unit of the food business, not merely to premises. The competent authority must know both the operator and the activity to be carried on. A previous approval therefore does not automatically continue when a different company becomes the food business operator. Nor did earlier inspections or possible administrative error prevent the authority from enforcing the applicable law, provided the enforcement process was fair. Where an operator has been clearly informed that approval is required and has been given opportunities to apply, the authority may certify non-compliance and seek a condemnation order.

The claimants sought judicial review of West Lindsey District Council’s refusal to recognise an earlier approval number, refusal to accept a fresh application, and certification that fish products had been handled without the required approval. They also challenged the fairness of proceedings before Lincoln Magistrates’ Court, which resulted in the condemnation and destruction of approximately 200 tonnes of fish and fish products.

The issues had previously been considered in a case stated appeal before Cranston J. The present court considered the effect of the post-2006 legislation, the pre-2006 approval position, legitimate expectation or estoppel, and the fairness of the magistrates’ proceedings.

1. Approval and the meaning of establishment. The court adopted Cranston J’s interpretation of the post-2006 Community instruments. “Establishment” means a unit of a food business and extends beyond the physical premises to the nature of the activity and the identity of the food business operator. Approval under Regulation (EC) 853/2004 therefore requires the authority to know who will operate the business and what activity will be conducted.
2. Change of operator and transitional provisions. The claimant company was a new food business operator. Any approval previously granted under the former regime did not survive the transitional provisions so as to authorise that company. There was no express provision for transferring an establishment’s approval from one operator to another. The guidance relied on by the claimants was incorrect insofar as it suggested that a new operator could continue without fresh approval.
3. Certification and fairness. The Council repeatedly informed the managing director that approval was required, supplied or referred him to an application form, and allowed opportunities to rectify the position. The Council was therefore entitled to issue the certificate under regulation 27 of the 2006 Regulations. Earlier inspections, even if they reflected mistake or incompetence, did not prevent enforcement of the law. The Council had acted fairly.
4. Magistrates’ proceedings and outcome. There was no sufficient evidence that the proceedings before the Justices were unfair. The claimants failed on each identified issue. The application was dismissed. The claimants were ordered to pay the first defendant’s costs, subject to detailed assessment, with £25,000 paid on account within 28 days. There was no order for costs concerning the second defendant.

• High Court (Administrative Court): The judicial review application was dismissed.
• High Court (Administrative Court): In the related case stated appeal, Cranston J had answered the magistrates’ questions and considered the approval issues in [2009] EWHC 3391 (Admin). The present judge took that reasoning into account and exercised her own judgment.