The recent ruling of the High Court in the case of Kingston upon Hull City Council v Newcastle City Council and Greggs Plc should be of concern to small cafés and food outlets by suggesting that they may now be forced to provide customer toilets at their premises.


Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 empowers Local Authorities to require businesses of a “relevant place” to provide customers with “sanitary appliances” free of charge.  A “relevant place” is defined in the Act as including “a place…which is normally used for…the sale of food or drink to members of the public for consumption at the place”.

It is commonly accepted that a “relevant place” covers what we understand to be a bar, public house or restaurant. However, the position is less clear when considering small cafés, take away food shops or small pop up businesses. It would make little business sense for a small business not to maximise the use of their premises for use by customers, but in doing so should the business be obliged to make provision for customers to spend a penny when spending their pounds?

Until recently, the prevailing view was no.  An unreported 1997 county court case held that a sandwich bar was not a “relevant place” on the basis that the customers that actually ate at the premises were “the exception rather than the rule”.  This case then formed the precedent for all subsequent Local Authority policies on the meaning of a “relevant place

Leading to the Greggs case

As a result of the 1997 case, and due to some subsequent legislation granting the Local Authority of Newcastle with ‘primary authority’ status for determining the issues at hand, advice was provided by Newcastle to all local authorities that a premises whose main purpose was takeaway sales with no more than 10 seats provided for customer use would not be deemed to be a “relevant place” for the purposes of the 1976 Act. Therefore, such premises with 10 or fewer seats would not be under the control of the Council to insist on the provision of sanitary appliances.

The Local Authority in Kingston-Upon-Hull disagreed with Newcastle’s position and were not persuaded that the two outlets of Greggs in Hull should be immune from the requirement to provide customer conveniences. Hull went up against Newcastle and the Secretary of State who both decided that the ’10 seat test’ was the “correct” and legal approach. As a result, Hull brought the matter for judicial review before the High Court.

The reversal of the ’10 seat test’

Mr Justice Kerr disagreed with the stance taken by Newcastle and the Secretary of State and held that the ‘10 seat test’ was not part of the statutory definition of a “relevant place”.  In looking at whether a premises should be deemed under the Act to be a place for consumption of food or drink, it was held that simply the opportunity and ability to consume a product (whether sitting or at a counter) was enough to make the premises a “relevant place”.

Local Authority Discretion

It is important to note that whilst the case has significant implications on the running of a small business, it did not establish that every premises with 10 seats or fewer automatically requires the provision of customer toilets. Rather, the power is now entirely with the relevant Local Authority as to whether or not to require a business to provide customer conveniences (just as it has always had for premises with provision for over 10 seated customers).

Current Local Authority policies already tend to cater for what is required for businesses with limited customer capacity but are careful not to require any provision for sanitary appliances for shops or cafes with 10 or fewer seats.


Many Local Authorities are likely to be sensitive to the commercial realities and limitations on small businesses in relation the provision of customer toilets. If the relevant Local Authority policy on toilet provision for small premises is deemed to be working then it is unlikely that the finding of the Greggs case will provide an opportunity for a wholesale review of their policies.

However, as a result of the Greggs case Local Authorities now have the power to require any number of toilets in a particular business regardless of feasibility considerations or the financial impact of such requirements on a business. No longer are the Greggs of the world safe if they can show only ten “bums on seats”.

The End?

To little surprise, Newcastle Council, the Secretary of State and Greggs all successfully sought leave to appeal the decision of Mr Justice Kerr to the Court of Appeal. As a result of significant media coverage and the outcry of many small businesses it is likely that we have not heard the last of the issues of “sanitary provisions” in “relevant places”.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Paul Jagger on