Agro Foods (Ashford) Ltd, R. (on the application of) v Food Standards Agency

The expression “premises” in regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009 refers to the physical facility at which official controls are provided. It is not conceptually identical to an “establishment”, which includes the business and operator using the facility. The power to withdraw controls may therefore extend to a successor operator at the same premises where a judgment for unpaid charges was obtained against a predecessor operator. The power is discretionary and must be exercised fairly, reasonably and proportionately. It cannot be used to refuse or withdraw statutory approval on the basis of unpaid charges, since approval decisions depend on hygiene standards.

The claimant was a successor food business operator at a slaughterhouse formerly operated by Charing Meats Ltd. The predecessor had failed to pay official controls charges, and the Food Standards Agency had obtained judgment for the arrears. The Agency invoked regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009 to withdraw controls at the slaughterhouse until the judgment was satisfied.

The claimant sought judicial review, arguing that “those premises” meant the approved establishment of the operator against whom judgment had been entered. The central issue was whether regulation 4 permitted withdrawal of controls where the current operator was a successor against whom no judgment had been entered.

1. The claim was dismissed. The Agency had power under regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009 to refuse further controls at premises operated by a successor, despite the judgment being against the predecessor.
2. “Premises” and “establishment” were distinct concepts. “Premises” naturally referred to the same physical facility where predecessor and successor operators might conduct their businesses at different times. The statutory definitions did not displace that ordinary physical meaning. The analysis in Allan Rich Seafoods v Lincoln Magistrates Court supported distinguishing the physical “where” element of premises from the wider three-dimensional concept of an establishment comprising where, what and who.
3. The words “those premises” therefore identified the physical location where the relevant controls had been provided. A successor could satisfy the predecessor’s judgment for the purpose of lifting the withdrawal. The claimant’s argument that only the defaulting operator could be affected was rejected.
4. The power was discretionary rather than mandatory. It had to be exercised fairly and reasonably, and proportionality was likely to be relevant. The claimant accepted, and the court held, that the exercise of the power was lawful on the facts.
5. The statutory scheme did not permit the Agency to refuse or withdraw approval of an establishment because charges were unpaid. Approval depended on hygiene standards. That limitation did not prevent regulation 4 from operating against a successor at the same physical premises.
6. Unpublished internal documents were not a proper aid to construction in this case. The court adopted the approach described by Sales J in Bogdanic v Secretary of State for the Home Department: statutory interpretation must ordinarily proceed by reference to material in the public domain and the subjective policy intention of officials was irrelevant.