Kingston Upon Hull City Council, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors

Under the primary authority scheme, advice and guidance must state the law correctly. A statutory provision cannot have several equally correct constructions merely because more than one interpretation is professionally arguable. The court, not an executive regulator, determines the meaning of legislation.

A primary authority may advise other local authorities on the exercise of discretionary functions, including the weight to give relevant factors. It must clearly separate that advice from statements of legal meaning. The local authority exercising the statutory function retains responsibility for the decision and must satisfy itself that the advice is legally correct and rational.

Hull challenged a decision by the Better Regulation Delivery Office upholding advice issued by Newcastle City Council under the primary authority scheme. The advice stated that Greggs outlets with fewer than 10 seats, or predominantly takeaway trade, were not normally used for consumption on the premises and therefore were not “relevant places” under section 20 of the Local Government (Miscellaneous Provisions) Act 1976.

The central issues were whether that advice was “correct” under paragraph 1(3) of Schedule 4 to the Regulatory Enforcement and Sanctions Act 2008, whether any error was material, and whether relief should be refused under section 31(2A) of the Senior Courts Act 1981.

1. Claim allowed. The BRDO decision was quashed and Newcastle’s advice was declared legally flawed.
2. The statutory definition of a “relevant place” in section 20(9) of the Local Government (Miscellaneous Provisions) Act 1976 concerns premises normally used for the sale of food or drink for consumption at the place. Customers sitting down at provided tables and eating food purchased there constitute a normal use of the premises. Predominant takeaway trade does not remove that use.
3. The statutory definition contains no threshold of 10 seats. That threshold, and the predominant-trade test, were therefore unlawful additions to the statutory scheme. The earlier Millar decision, if accurately reported as adopting that approach, was wrong.
4. For paragraph 1(3)(b) of Schedule 4 to the Regulatory Enforcement and Sanctions Act 2008, “correct” means legally right, or at least not wrong. The primary authority regime does not permit an executive body to choose between competing interpretations of legislation. The court determines the law.
5. The primary authority may advise an enforcing authority about how to exercise discretionary powers and may suggest the weight to be given to factors such as seating and the proportions of takeaway and sit-down customers. Those considerations must be separated clearly from statements of legal meaning. The discretionary power under section 20 remained with Hull, not Newcastle.
6. The error was material. Newcastle had not reconsidered its advice from the standpoint of a correct understanding of the law. The statutory alternative-outcome test in section 31(2A) of the Senior Courts Act 1981 was not satisfied, because without the BRDO decision Hull would have been free to take enforcement action.

The case was a judicial review of the BRDO decision dated 11 February 2015, which had upheld Newcastle’s direction preventing Hull from pursuing enforcement action against Greggs. The High Court quashed that decision and declared Newcastle’s advice flawed by error of law. Permission to appeal was granted because the case concerned a new statutory scheme and issues of general importance.