England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2010

Mrs Justice Nicola Davies :

1. This is an application for Judicial Review of two decisions:

i. The decision of the first defendants, West Lindsey District Council ("the Council") to refuse to recognise the first claimant's approval number, to refuse to accept an application for a new approval number and to apply for a Food Condemnation Notice based upon the absence of an approval number between 3 and 8 October 2008.

ii. The decision of the second defendants, Lincoln Magistrates, of 14 October 2008 to grant a Condemnation Order pursuant to section 9 of the Food Safety Act 1990 ("the 1990 Act").

2. The proceedings are brought by the first claimant company and its managing director Mr Roland Saldanha. The first claimant company was engaged in fish processing, packaging, storage and distribution from Units 31 and 32 Trading Estate, Brookenby, Market Rasen, Lincolnshire ("Units 31 and 32"). Operating at Units 31 and 32 from the mid-1990s onwards were three different companies: Allrich Seafoods, this company existed between 1995 and 2000, on 18 January 2000 it went into voluntary liquidation; Roland International Seafoods purchased the business and continued at the premises until it was compulsorily wound up on 12 July 2005; Allan Rich Seafoods Limited was incorporated on 29 July 2005 and bought the business of Roland International Seafoods on 5 August 2005. At all material times Mr Roland Saldanha was the director and shareholder of the three companies. The Council was at all material times the food authority with responsibility for issuing approval to the companies pursuant to the relevant food hygiene regulations.
3. The application for Judicial Review was lodged on 8 January 2009. In June 2009 Calvert-Smith J granted permission to apply and made limited directions. On 18 November 2009 a case stated was lodged and the hearing of the case stated took place in December 2009 before Cranston J. The questions raised by the Lincolnshire & Gainsborough Justices were as follows;

i. Were the Justices right to proceed with the application of 14 October 2008 rather than adjourn the proceedings for the appellant to seek legal advice?

ii. Was it wrong and unfair for the Justices to admit evidence not served in advance of the hearing?

iii. Once the Justices were aware the issue was lack of approval, should Allan Rich Seafoods Limited have been given another opportunity to apply for approval before the Justices determined the application?

iv. Is it the premises and/or the company which requires authorisation?

v. Was the finding that the premises were not approved supported by the evidence?

vi. Did the Justices err in failing to distinguish between the stocks of the appellant intended for human consumption and stocks of the appellant not so intended, when making the order?

vii. Were the Justices right, on the evidence they heard, to make an order under Section 9(6) (a) and (b) of the Food and Safety Act of 1990?

4. Cranston J answered the questions as follows:

i. Yes;

ii. No;

iii. No;

iv. Neither, see the Judgment;

v. Yes;

vi. Not relevant to answer;

vii. Yes.

5. In these proceedings the following issues have been identified;

i. Were the Council entitled to certify on 8 October 2008 that the first claimant was not approved under the relevant food hygiene regulations?

ii. Was the Council precluded from so certifying, by reason of an estoppel, because it had acted unfairly, negligently or incompetently towards the claimants, specifically should it have given the claimants the opportunity for a further hearing before so certifying?

iii. Were the proceedings before the Justices on 14 October 2008 unfair?

iv. If successful, what remedies are the claimants entitled to in these proceedings?

v. Is the resolution of the above issues affected by the decision of Cranston J in the case stated appeal Allan Rich Seafoods v Lincoln Magistrates Courts [2009] EWHC 3391 (Admin)?

The Facts

6. On 14 October 2008 the second defendant ("The Justices") made a Condemnation Order under section 9(6) (a) and (b) of the Food Safety Act 1990. Under that order 200 tonnes of fish and fish products were destroyed. The order was made on the application of the first defendant, the Council. The condemnation order was sought pursuant to a certificate issued under Regulation 27 of the 2006 Regulations that the contents of the two cold stores "had not been stored, produced, processed or distributed in compliance with the Hygiene Regulations…EC Regulation 853/2004 and EC Regulation 854/2004 in that the business is not approved by the competent authority". It is the Council's case that even if the first claimant had applied for approval, the Council would not have granted such approval until proper steps had been taken to address the unsatisfactory and unhygienic physical state of the first claimant's factory premises.
7. These proceedings have been hampered, as was the case before Cranston J, by an absence of relevant documentation. It is the claimants' case that from the mid 1990s the first company Allrich Seafoods had been granted approval pursuant to the relevant regulations. It did so with an approval number of GR010. No documentation exists as to any application for, or the grant of, approval to any of the companies. It is not contested that Allrich Seafoods and Roland International Seafoods Limited were at some time or another given approval numbers and that they were inspected by Council officials pursuant to the relevant regulations. One Council employee in particular, Mrs Martland-Curtis, carried out inspections of the claimant's premises between 2000 and the end of 2007. Reliance is placed upon these inspections by the claimants as evidence of the fact that the premises had received approval and that Mrs Martland-Curtis was aware of the company changes.
8. On 1 January 2006 the relevant legislation changed, the definition of "establishment" in the legislation was altered. The change in the legislation was followed by a change in the Council personnel visiting the establishment. On 28 July 2008 Mark Radley, a Council employee, visited the premises following a complaint that rubbish was being burnt there. He saw that there was some fish in boxes that was open to the environment as a result of which a full inspection was triggered. This was conducted by Yvonne Garraway, an Environmental Health Officer acting on behalf of the Council. She visited the premises on 29 and 30 July 2008. On 31 July 2008 she sent an email to the Food Standards Agency asking for information regarding the number GR010 and Allan Rich Seafoods Limited. On the file note she made she noted neither were listed. Ms Garraway also recorded that the list might not be complete and that Roland International Seafoods Limited was listed with approval number GR003FE. The result of Ms Garraway's inspection visit was a ten page letter sent to Mr Saldanha at Units 31 to 32 on 4 August 2008. The letter enclosed thirteen remedial notices under the Food Hygiene (England) Regulations 2006. In the letter Ms Garraway stated that neither the Food Standards Agency nor the Council had any record which indicated that the company had been approved. Specifically, she stated: "Unless you are able to provide evidence that you are an approved establishment, you will need to make a formal application."
9. An inspection visit to the premises took place on 21 August 2008. On 5 September 2008, Joanna Riddell, a Senior Officer with the Council wrote to Mr Saldanha stating that she understood that there was not as yet full compliance with the food hygiene notices. The letter also stated: "During the visit you were asked to produce confirmation of your approval, to date no documentation was been received. The Food Standards Agency has confirmed they do not have any record of an approval for Allan Rich, therefore in the absence of any paperwork from yourself I conclude that you are not approved. This being the case I am considering what action can be taken and will contact you next week to discuss this."
10. On 15 September 2008 Mr Saldanha replied to Ms Riddell. He explained the background to the operations but he did not specifically deal with the issue of approval. On 17 September 2008 Ms Riddell carried out a further inspection of the premises and served Mr Saldanha with a Hygiene Emergency Prohibition Notice pursuant to Regulation 8 of the Food Hygiene (England) Regulations 2006 by reason of active rodent infestation at the food business.
11. On 23 September 2008 Ms Riddell issued a Remedial Action Notice pursuant to section 9 of the 2006 Regulations, the notice expressed the opinion that hygiene regulations were being breached because fish and fish products were being exported without approval, the premises does meet the standards of Regulation (EC) 852/2004 and Regulation (EC) 853/2004. The notice required Mr Saldanha to cease the process of repacking fish and fish products and the use of an unauthorised approval mark. The action required to remedy the situation stated in the notice was: "Improve the premises and apply for approval under 853/2004."
12. On 1 October 2008 Council officers visited the premises. On 3 October 2008 they again visited and met with Mr Saldanha. A further Remedial Action Notice pursuant to section 9 of the 2006 Regulations was issued. The covering letter explained that the factory was not approved and enclosed a letter of 23 March 2001. The remedial notice stated that it was being issued because food regulations were being breached: "Fish and fish products are being stored, processed and repackaged in a premises that is not compliant with Regulation (EC) 852/2004 and 853/2004 in that it is not approved." The notice required Mr Saldanha to cease the process of storing, processing and repackaging fish and fish products. The action required to remedy the situation was stated to be: "make an application for approval under Regulation 853/2004 and improve the premises in line with Regulation 852/2004."
13. Mr Saldanha said that having received the Remedial Action Notice he completed an application for approval but that Miss Riddell refused to accept it. Miss Riddell denied this. Mr Saldanha also wrote to the Chief Executive of the Council stating that Mrs Martland-Curtis had agreed to transfer the approval number to the new company Allan Rich Seafoods Limited.
14. On 8 October 2008 Ms Riddell issued a Food Condemnation Warning Notice under section 9 (3) (4) of the Food Safety Act 1990 and Regulation 23 of the 2006 Regulations. The application stated that it was to be made to the Magistrates Court. On 14 October 2008 a hearing took place before the magistrates who made an order pursuant to the 1990 Act.

Decision of Cranston J

15. Before the court is the judgment of Cranston J in the case stated proceedings. On behalf of the claimants it is contended that the judgment does not deal with all the issues in the case in particular the pre-2006 law. It is the claimants' contention that the court is not estopped from considering the issues now raised. It is the first defendant's case that the court is so estopped because in the careful and detailed judgment Cranston J considered and determined all relevant issues. Even if not estopped it is submitted that the judgment is strongly persuasive.
16. Central to the decision of Cranston J is a consideration of the issue of approval. It is identified in the first paragraph of the judgment. The history of the matter is recited in paragraphs 4 to 16, the hearing before the Justices in paragraphs 17 to 22, the post-2006 legislation in paragraphs 23 to 35 and the pre-2006 law in paragraphs 36 to 39.
17. In paragraphs 23-35 under the heading "Authorisation" Cranston J cites the relevant European and English law, at paragraphs 36-39 he identifies the pre-2006 law. I do not intend to recite the relevant legislation as this has been carefully and concisely done by Cranston J. At paragraph 40 he states:

"It seems to me that in this maze of current regulation the following at least is clear:

1. The European Community Instruments Regulations (EC) 852/2004, Regulation (EC) 853/2004 and Regulation (EC) 882/2004 must be read as a whole, and in the light of their overall principal objective, as expressed in the recitals, to secure a high level of consumer protection with regard to food safety.

2. The Community Instruments place the obligations on the food business operators, which means the natural or legal persons responsible for ensuring that the requirements of food law are met within the undertaking carrying out the activities related to any stage of the production, processing and distribution of food.

3. Food business operators, with establishments handling particular products of animal origins, including fishery products, must obtain express approval to operate. Establishments are units for food business. Approval involves an on-site visit.

4. Approval can be withdrawn for non-compliance with food law but the food business operator needs to be given written notification, with reasons, and information on appeal rights.

5. There is no express provision for the transfer of an approval of an establishment from one food business operator to another.

18. I agree with summary provided by Cranston J, in particular the final point as to the absence of an express provision for the transfer of approval in the post-2006 legislation.
19. At paragraphs 41 and 42 Cranston J considers the law and the factual position in 2005, prior to the change in legislation. He states:

"41. As far as the law in force in 2005 was concerned, persons could not operate a fishery products establishment unless it had been approved. Both in the 1991 European Community Directive and the UK Regulations establishment was defined as premises. An application for approval had to be in writing and accompanied by the requisite information. There was nothing about the transfer of approval. Under the Code of Practice significant changes in ownership would trigger an inspection.

42. In this case there is some evidence that approval number GR010 was at some point issued to All Rich Seafoods Ltd. There is the 1997 registration document for unit 31 on which there is the hand written note of this number, and also the use of the number in the letter from Mrs Martland-Curtis in 2001, albeit that she appears mistaken as to the dissolution of Roland International Seafoods Ltd. There is also some evidence that at one point approval number GR003FE may have been issued to Roland International Seafoods Ltd. In that regard there is the email of 10 July 2007 from Mrs Martland-Curtis to the Food Standards Agency. There is no evidence from the records of the Council or the Food Standards Agency that approval was given to the appellant or that the appellant was ever granted permission to use the approval numbers GR010 or GR003FE. Neither is there evidence from the records of the Council or any application for approval submitted by the appellant, or of any application by the appellant to be permitted to use approval numbers GR010 or GR003FE. Finally it has never been suggested that any approval given was ever withdrawn from the appellant in accordance with the procedures laid down in Community or domestic law".

20. I agree with the statement of the law in paragraph 41. Before this court were further documents disclosed by the first defendants, in particular computer records. The documents do not affect the finding made by Cranston J that there is no evidence from the Council or the Food Standards Agency that approval was given to the appellant or that the appellant was granted permission to use any previous approval numbers. There is no evidence that the appellant applied to be permitted to use any previous approval numbers.
21. Before Cranston J Miss Lonsdale, acting on behalf of Allan Rich Seafoods, made submissions relating to the pre-2006 position based upon the "appellant's" evidence. Those submissions were repeated before this court by Miss Lonsdale acting on behalf of the claimants. They are set out at paragraphs 43 and 44 of Cranston J's judgment.

"43. For the appellant Miss Lonsdale contends that the appellant was entitled to have his evidence accepted, that he could rely on any approval previously granted for other companies which operated out of units 31 to 32. First she submits, it is the establishment which is approved and establishment means the premises both under the current law as under the previous law. If there is a change in ownership of a business, but the business is still operated in the same way from the same premises, there is no need to apply for new approval, although the food business operator is obliged to inform the food authority of the change of ownership. Once the premises are approved they remain approved until the approval is revoked. In particular, Miss Lonsdale invokes the passage in the guidance suggesting that the new operator of an establishment need not seek approval in order to continue the activity for which approval has been granted in the past.

44. Secondly, Miss Lonsdale contends that the evidence demonstrates that the Council were informed about, and noted, the change of food business operator in relation to the establishment at units 31 to 32 when Roland International Seafoods Ltd ceased business and the appellant took over in 2005. There was in effect a transfer of approval. In Mr Saldanha's evidence he notified Mrs Martland-Curtis of the change in food business operator to the appellant in 2005 and this was accepted by her on behalf of the Council. That was then followed by subsequent inspection visits. In Miss Lonsdale's submissions, Mr Saldanha's evidence before the justices was supported by evidence which has subsequently come to light in particular the letter of 28 July 2005 with its manuscript annotation "Alan Rich Seafoods Ltd August 5^th". The inference was, either in response to that letter, or alternatively at the further visit, Mr Saldanha notified Mrs Martland-Curtis of the change to the appellant as operator and this was accepted by Mrs Martland-Curtis on behalf of the Council. There was also a second witness statement of Mrs Martland-Curtis in December 2009, where she explains that in summer 2005 she was told by Mr Saldanha that Roland International had ceased trading and the new operator was to be the appellant, named after his two sons, she also explained the subsequent inspection visit was conducted by another officer."

22. As to Miss Lonsdale's first submission that is dealt with by Cranston J in paragraphs 45 and 46 of his judgment:

"45. In my view whatever the position under the pre-2006 law, "establishment" no longer means premises. It may be that the use of the term "establishment" in some parts of the Community instruments, and the Code of Practice, connotes a physical location, premises or, in the case of fishery products, possibly a fishing vessel. However, the definition of "establishment" is clear – a unit of a food business. Read in the context of legal instruments designed to further food safety, and which place obligations on food business operators, "establishment" must mean something more than premises. An assessment merely of the suitability of the premises would not fulfil the food safety purpose of the EC regulations. In my view "establishment" denotes both premises and the manner in which those premises are being used by the food business operator. Thus approval is required for a food business or unit of the food business not merely for the premises from which the business is conducted. If the Community instruments had intended that the suitability of premises should be assessed, in my view they would have said so. There was a clear and intended change in the 2004 Community instruments from the 1991 directive.

46. Thus the guidance is incorrect in suggesting there is no need for approval if the new operator of an establishment continues the activities for which approval was granted in the past. The guidance does not take account of the definition of an establishment in the Community Instruments. It remains stuck in pre-2006 law. It may be that the guidance has some application in the case where control changes with an existing food business operator, for example the transfer of ownership of a company with the company remaining as the food business operator. I express no concluded view on that. Here, however, there was a new food business operator, the appellant, which like a phoenix arose from the ashes of Roland International Seafoods Ltd, albeit that its guiding mind was the same, Mr Saldanha, in my judgment under Regulation (EC) 853/2004, the appellant would need approval".

23. I agree with the interpretation of the law as set out in paragraph 45. "Establishment" goes beyond the fact of the premises. It includes the nature of the activity carried out in those premises. Approval cannot be given unless the authority knows who the operator is and what the person is going to be operating. There was a clear and intended change in the 2004 Community Instruments from the 1991 directive. It follows that the guidance relied upon by Miss Lonsdale is incorrect. It does not take account of the definition of establishment in the Community Instruments, it remains stuck in pre-2006 law.
24. As to Miss Lonsdale's second submission that the evidence demonstrates that the Council were informed about, and noted, the change of food business operator in relation to the establishment at units 31 to 32 when Roland International Seafoods Ltd ceased business and the appellant took over in 2005, there was in effect a transfer of approval. Miss Lonsdale contended that Cranston J did not fully consider the pre-2006 law, approval had previously been given and survived the change in the legislation. Relevant to this submission are the transitional provisions, they include the following:

Regulation (EC) 854/2004, Article 3, Approval of Establishments "1(a) When community legislation requires the approval of establishments, the competent authority shall make an on site visit. It shall approve an establishment for the activities concerned only if the food business operator has demonstrated that it meets the relevant requirements of regulations (EC) 852/2004 and (EC) 853/2004 and other relevant requirements of food law.

3. The competent authority shall give each approved establishment, including those with conditional approval, an approval number, to which codes may be added to indicate the types of products of animal origin manufactured. For wholesale markets, secondary numbers indicating units or groups of units selling or manufacturing products of animal origin may be added to the approval number.

4. (a) The competent authority shall keep the approval of establishments under review when carrying out official controls in accordance with articles 4-8.

(b) If the competent authority identifies serious deficiencies or has to stop production at an establishment repeatedly and the food business operator is not able to provide adequate guarantees regarding future production, the competent authority shall initiate procedures to withdraw the establishment's approval. However, the competent authority may suspend an establishment's approval if the food business operator can guarantee that it will resolve deficiencies within a reasonable time.

(c) In the case of wholesale markets the competent authority may withdraw or suspend approval in respect of certain units or groups of units.

5. Paragraphs 1, 2 and 3 shall apply both:

a) To establishments that begin placing products of animal origin on the market on or after the date of application of this regulation;

b) To establishments already placing products of animal origin on the market but in respect of which there was previously no requirement for approval.

In the latter case, the competent authority's on site visit required under paragraph 1 shall take place as soon as possible.

Paragraph 4 shall also apply to approved establishments that place products of animal origin on the market in accordance with community legislation immediately prior to the application of this regulation."

25. Article 3 applies to "establishments". Article 2, paragraph 2 reads: "the definitions laid down in the following regulations shall also apply as appropriate to:

i) Regulation (EC) 852/2004 except for the definition of competent authority

and

ii) Regulation (EC) 853/2004"

The effect of this provision is that the definition of "establishment" is a "unit of a food business". Applying this definition and on the specific facts of this case Allan Rich was not an approved establishment as defined by the new legislation. Any approval granted to Allan Rich, even if valid under the old legislation, did not survive the transitional provisions. Accordingly approval was required.

26. The claimants rely upon a letter dated 22 December 2005 issued by the Food Standards Agency, in which guidance was offered in respect of the new legislation. Specifically, for approved establishments it was stated that in respect of establishments which are currently approved and continue to be subject to approval under Regulation 853/2004 from 1 January 2006 the existing approval may continue. The letter refers to "establishments" which are currently approved. The claimants' "establishment" had not been approved in the sense relevant to the new legislation.

Action taken by the Council

27. If there was any doubt as to the need for approval the actions taken by the Council from 4 August 2008 to October 2008 put Mr Saldanha upon the clearest notice of this fact. The following meetings and letters illustrate this point;

i) Letter 4 August 2008 written by Ms Yvonne Garraway, Environmental Health Officer on behalf of the Council addressed to Mr Saldanha in which it was stated by Ms Garraway: "I have checked the above approval number with the Food Standards Agency and they have no record of your approval. Added to which there is no paperwork at this authority that indicates that approval was given. In conclusion, then, unless you are able to provide evidence that you are an approved establishment, you will need to make a formal application";

ii) Meeting 21 August 2008 between Ms Garraway and Mr Saldanha. In her witness statement Ms Garraway stated that she made clear that she told Mr Saldanha that he required approval;

iii) Letter 5 September 2008 from Ms J Riddell, Community Health Services Manager, of the Council which stated: "During the visit you were asked to produce confirmation of your approval, to date no documentation has been received. The Food Standards Agency has confirmed that they do not have any record of an approval for Allan Rich, therefore in the absence of any paperwork from yourself I conclude that you are not approved. This being the case I am considering what action can be taken and will contact you next week to discuss this";

iv) Remedial Action Notice pursuant to the Food Hygiene (England) Regulation 2006, regulation 9 served on 23 September 2008. Paragraph 4 of the notice states: "The action required to remedy the situation is as follows; improve the premises and apply for approval under 853/2004." That notice was withdrawn, but in a letter dated 3 October 2008 from Ms Riddell to Mr Saldanha it was stated: "On 23 September a Remedial Action Notice was also served on you regarding your approval status, particularly relating to your export of products to Malta. This notice has been withdrawn and a further notice is enclosed with this letter. This Remedial Action Notice has been served as your factory is not approved and you require approval to continue to operate";

v) Letter 3 October 2008: This letter enclosed a Remedial Action Notice under Regulation 9 of the 2006 regulations. It was written by Ms Riddell. It repeated that remedial action was required as the factory was not approved and Mr Saldanha required approval to operate. The notice itself stated: "The action required to remedy the situation is as follows: Make an application for approval under Regulation 853/2004 and improve the premises in line with regulation 852/2004";

vi) On a visit by Ms Riddell on 3 October 2008, Ms Riddell stated that she gave Mr Saldanha an application form.

28. By 8 October 2008 Mr Saldanha had been given a number of opportunities to rectify the situation. What he needed to do was to submit a new form. He had been told to make an application for approval, I do not accept that he did so. On 8 October 2008 a certification was issued pursuant to the Regulation 27 of the 2006 Regulations. This certified that food had not been produced, processed or distributed in compliance with the hygiene regulations. It was addressed to Allan Rich Seafoods Limited and identified breaches of Regulations 853 and 854, namely that business was not approved by the competent authority. It was signed by Miss Riddell. I find that the Council was entitled to issue this certificate.

Legitimate expectation

29. A separate point is raised on behalf of the claimants, namely that by reason of inspection visits carried out by employees of the Council there was on the part of the claimants a legitimate expectation that approval had been given and thus the council are estopped from denying the existence of approval. In 2008 the Council could not be precluded from enforcing the relevant law even if a previous employee was or could have been mistaken in the conduct of the matter. The issue is whether in seeking to enforce the law in 2008 the Council acted fairly. I find that it did so act.
30. On 14 October 2008 the application was heard by the Justices. The hearing, its conduct and the order made by the Justices were considered by Cranston J, they had to be given the nature of the proceedings before him. In my view there is no good evidence to support a finding that the proceedings were unfair.

Conclusion

31. As to the issues identified in paragraph 5 above I find:

i) The Council were entitled to certify on 8 October 2008 that the first claimant was not approved under the relevant food hygiene regulations;

ii) The Council were not precluded from so certifying by reason of an estoppel nor do I find that it acted unfairly, negligently or incompetently towards the claimants;

iii) The proceedings before the Justices on 14 October 2008 were fair.

32. It will be clear from this judgment that I have taken account of the review and interpretation of the relevant law and the facts as set out in the decision of Cranston J in the case stated appeal Allan Rich Seafoods v Lincoln Magistrates Court [2009] EWHC 3391 (Admin). I have also considered the evidence and the submissions made in these proceedings. In arriving at my findings I have exercised my own judgment. This application is dismissed.
33. As to costs, the order that I make is that the claimants do pay the costs of the first defendant, subject to a detailed assessment. The claimants do pay £25,000 on account of these costs within 28 days of the date of this order. The second defendants did not appear and were not represented. There is no order for costs as between the claimants and the second defendant.