July 3, 2020

In what is now becoming the typical 11th hour and 59th minute publication, the regulations to remove the closure restrictions on pubs, bars cafés and restaurants with effect from 4 July 2020 were published at about 3.25 on 3 July 2020.


The regulations in question are The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020. They supersede the much-amended Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, about which I had promised regular updates, but when push came to shove, I lost the will to keep up.

Some immediate surprises about the new Regulations.

Firstly, not just cinemas but theatres are completely removed from the categories of business which must remain closed. The staged system that theatres are going through on their path to reopening...

June 30, 2020

This article first appeared in the Journal of Licensing for March 2020. 

What details should licensing authorities post on their websites about forthcoming hearings to determine applications under the Licensing Act 2003?

Many local authorities will tell you that this is governed by under Part VA of the Local Government Act 1972, which relates to “Access to Meetings and Documents of Certain Authorities, Committees and Sub-Committees”, and that the answer is that the 1972 Act requires the meeting agenda and report to be placed on the local authority website. Quite often you will hear that agendas and reports need to be on the website “five clear days” before the meeting to comply with the 1972 Act.

In this article, I am going to tell you that those local authorities are wrong: one of the many quir...

June 29, 2020

The Government is rushing through Parliament a new streamlined process for to apply for a “Pavement Licence”. This temporary authorisation will short-circuit the usual suite of consents required under the Highways Act, planning law and (in some cases) street trading regimes. The purpose of the new licence is to help the beleaguered hospitality sector in a time of social distancing. Together with Sarah Clover and Leo Charalambides of Kings Chambers, I have co-authored for Nexstart (the National Exit Strategy Advice & Response Team for the Hospitality and Entertainment Industry) a guide on this section of the legislation.

The document will be kept updated as the Bill passes and then to reflect its experience in practice.

Other relevant links are:

The Business and Planning Bill 2019-...

May 21, 2020

In his judgment in R (on the application of Susan Fisher) v. Durham County Council [2020] EWHC 1277 (Admin) handed down in the Leeds District Registry on 21 May 2020, Julian Knowles J. has dismissed a challenge brought by Susan Fisher, a woman with a neurological disorder which causes her to make involuntary sounds and noises, including words and phrases, frequently at very loud volume, against the decision of my client Durham County Council to serve her with a abatement notice under the Environmental Protection Act 1990 (“EPA 1990”).

The Judge has refused to grant permission to appeal.

I represented the local authority in resisting Ms Fisher's challenge.

The notice related to the statutory nuisance of noise Ms Fisher was causing from the premises in which she lived, a privately tenanted mid-terraced...

April 11, 2020

In the last few weeks this blog has been as guilty as others in unleashing a torrent of comment to respond to the torrent of regulations, guidance, practice directions and other verbiage as the legal world struggles to cope with COVD-19.

I'm afraid that isn't going to stop - when I find the time from moving every single object in my flat to a different place and then moving it back, whilst simultaneously ironing every shirt I own and making the entire contents of the "Good Housekeeping" cookbook like it's 1974, I am going to produce my long-promised second article on The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, considering in particular the controversial question of enforcement powers.

But in the meantime, here is the pilot episode of "Coffee & Counsel", where myself...

March 26, 2020

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 13.00 today.

This the law behind the “lockdown” announced by the Prime Minister on 24 March 2020 - essentially until now the lockdown has had no legal effect.

As I predicted, the Regulations are made not under the new Coronavirus Act 2020 but instead under the existing powers under s.45C of the Public Health (Control of Disease) Act 1984.

The Regulations have been made under the emergency procedure under s.45P without the need for Parliamentary approval.

They revoke and replace The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (“the first Regulations”) which closed down restaurants, cafes, pubs and other leisure venues on 21 March 2020 and about which I have previously written...

March 24, 2020

The Health Protection (Coronavirus: Closure of Leisure Businesses, Footpaths and Access Land) (Wales) Regulations 2020 come into force at 12.00 today. They require the closure of holiday sites, camping sites, amusement arcades and indoor play centres, and further seek to close footpaths crowded with persons who unwisely decamped to Wales for the period of the epidemic.

As is becoming clear, the Government is placing heavy reliance in its legislative management of this crisis on s.45C of the Public Health (Control of Disease) Act 1984. I predict that these provisions will be used for the regulations to enforce the so-called “lockdown”). 

Persons who carry on these businesses are responsible for closing them: regulation 2(1).  

As with the The Health Protection (Coronavirus, Business Closure) (England)...

March 24, 2020

GUEST POST BY RICHARD STUBBS OF TRINITY CHAMBERS

The vast majority of the adult population will have watched our Prime Minister Boris Johnson tell us all to stay in our homes wherever possible until further notice. The exceptions to that advice are:

  1. Shopping for basic necessities – to be undertaken as infrequently as possible.

  2. One form of exercise a day – run, walk, cycle, with social distancing firmly in mind

  3. For medical need or to provide care to a vulnerable person

  4. Travel to and from work, in the words of Mr Johnson “only where it is absolutely necessary and cannot be done from home”

The full guidance on staying at home and away from others can be accessed here https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-st...

March 23, 2020

The rent here may be low, but I believe we have it on very hard terms’, so said Marianne.

We are in lockdown. Italy has Italian tenors serenading neighbours, Spain has Spanish Police dancing in the streets and the UK is about to reveal its method of merriment in lockdown. One thing however is clear: most UK businesses will have no footfall through their doors. Cash flow – the lifeblood of any business – will be severely affected. What then of businesses unable to pay their rent? The Government (by way of amendments to the Coronavirus Bill) proposes to shield businesses from the immediate consequences of not paying rent.  

The right of a landlord to bring a business tenancy to an end – by way of re-entry or forfeiture –for non-payment of rent will now not be enforceable during the “relevant period”...

March 23, 2020

As the world moves rapidly online, and we learn wonderful new words like Zoom and PowWowNow and discover weird new places like Teams, licensing practitioners have been chewing over a thorny question of whether or not local authority meetings, including licensing sub-committee meetings can lawfully be undertaken online, given the provisions of Schedule 12 of the Local Government Act 1972 requiring votes to be taken by members “present” at a meeting.

This had previously been interpreted by government (in pre-COVID-19 days) as meaning they had to be physically present in a building.

My colleague Gary Grant argued persuasively in an article that licensing hearings were not affected by these provisions as s.9(3) of the Licensing Act 2003. That of course would not assist non-licensing hearings Gerald Gour...

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Barrister

Licensing, chancery/commercial and property barrister.

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