Pembrokeshire Holdings Limited v Food Standards Agency

Food hygiene provisions requiring premises or food to be protected against contamination are preventative. A breach does not require proof that contamination has already occurred. The court must instead assess whether the arrangements provide adequate protection, including whether the circumstances create more than a negligible potential for contamination.

Proportionality requires consideration of whether the enforcement measure is suitable and necessary, including whether the required measures are clearly less onerous than available alternatives. Earlier regulatory approval of premises does not invalidate later notices, although it may have evidential relevance. A hygiene improvement notice must accurately reflect the statutory obligation. A disclosure or candour failure ordinarily justifies procedural management, costs or favourable inferences, rather than setting aside an otherwise lawful notice.

The appellant, a food business operator trading as Euro Farm Wales, appealed by way of case stated against the refusal of its appeal by District Judge Layton in the Magistrates’ Court. The District Judge had upheld a remedial action notice and a hygiene improvement notice served by the Food Standards Agency under the Food Hygiene (Wales) Regulations 2006 concerning excessive condensation in slaughterhouse chillers.

The remaining issues concerned the proper approach to contamination risk, proportionality, the effect of the Agency’s earlier approval of the premises, the wording of the hygiene improvement notice, and alleged failures of disclosure and candour.

1. Risk and statutory construction. The appeal was allowed only to the extent that the hygiene improvement notice required modification. The requirements in Regulation (EC) 852/2004, Annex II Chapter I point 2(b), and Chapter IX paragraph 3 are preventative. An obligation to protect against contamination can be breached even though contamination has not yet occurred. For premises, the question is whether their layout, design, construction, siting and size in fact protect against the formation of condensation.
2. The term “risk” in this context is used in its ordinary, non-technical sense of potential. The technical definition in Regulation (EC) 178/2002 concerns the likelihood and severity of an adverse health effect from a hazard. It does not govern a provision intended to prevent a hazard from arising. The District Judge therefore applied the correct test by asking whether the level of condensation created more than a negligible risk of contamination. His factual conclusion was open to him.
3. Chapter IX paragraph 3 protects against contamination having any of three distinct consequences: rendering food unfit for human consumption, rendering it injurious to health, or making it unreasonable to consume in its contaminated state. The fact that carcasses would later be cooked did not answer the third limb.
4. Proportionality. Applying the approach in R (Lumsdon) v Legal Services Board [2015] UKSC 41, [2016] AC 697, the notices were suitable and necessary. The appellant’s previous measures had been ineffective and it had been given every opportunity to address the problem. Alternative measures, such as reducing throughput or increasing spacing, were not clearly less onerous. The RAN’s requirements were proportionate.
5. The Agency’s earlier approval of the premises did not invalidate the notices or make the required measures disproportionate. It was potentially relevant evidence, but the circumstances did not involve an abrupt change of stance without an opportunity to remedy matters.
6. The HIN was modified under Regulation 22(1) by replacing “prevent” with “protect against”, so that it reflected the statutory obligation in Annex II Chapter I point 2(b). As modified, it was proportionate and lawful.
7. On disclosure and candour, Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin), [2024] 1 WLR 1687 supported procedural remedies rather than automatic abandonment of proceedings. Even assuming a disclosure failure, the appellant had been offered the opportunity to cross-examine the relevant witnesses and had declined it. Such a failure would not justify setting aside otherwise valid notices.

The RAN and the modified HIN were affirmed. The remaining questions were answered as set out in the appendix.

• Magistrates’ Court: District Judge Layton refused the appellant’s appeal and upheld the notices on 12 December 2024.
• High Court (Administrative Court): The case-stated appeal was determined by Mr Justice Eyre. The RAN and HIN were affirmed, subject to modification of the HIN’s wording.