Compulsory closure of premises

The Regulations explained below have now been revoked and replaced by The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020 No. 350], which were made and came into effect at 1.00 p.m. on Thursday 26 March, and are [will be] described in a later blog post.

The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020 No. 327) were made at 2.00 p.m. on Saturday 21 March, and came into effect immediately. [Similar regulations were also made in Wales.] These regulations require the immediate closure of restaurants (including restaurants and dining rooms in hotels or members clubs), cafés (including workplace canteens) [but see below for exceptions], bars (including bars in hotels or members’ clubs) and public houses, and also Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Massage parlours, Indoor skating rinks and Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.

Cafés or canteens at a hospital, care home or school, canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; and services providing food or drink to the homeless are all exempted from the requirement to close cafés and workplace canteens.

With regard to restaurants, cafés, bars and pubs, the regulations only require the closure of any premises (or part of the premises) in which food or drink are sold for consumption on those premises. If a business sells food or drink for consumption off the premises it must not sell food or drink for consumption on its premises while the regulations remain in force. So seating areas in a take-away must be closed. Nor may outdoor seating areas be used for the consumption of any food sold on the premises. However, food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises. [The effect of the regulations in relation to hotels is that guests will not be able to eat or drink in the hotel, except in their own rooms.]

It is an offence for any of the specified businesses to remain open or to re-open during the period that these regulations are in force, or to infringe any of the other rules outlined above.

These Regulations expire at the end of the period of six months (i.e. after 21 September 2020). In the meantime, the Secretary of State for Health must review the need for the restrictions imposed by these regulations every 28 days, with the first review taking place not later than 19 April. As soon as the Secretary of State considers that the restrictions set out in these regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, he must publish a direction terminating the period during which the regulations apply. Such a direction may exempt all of the businesses covered by these regulations or only some of them.

The main purpose of my drawing attention to this new piece of legislation is to analyse how this relates to the Use Classes Order. Clearly any uses falling within Use Class A1 selling food, such as sandwiches, for immediate consumption must not allow any of that food to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. Shops that have ancillary cafés will have to keep those cafés closed. There is a potential anomaly with regard to Class A1. This relates to Class A1(k) - internet cafés, i.e. where the primary purpose of the premises is to provide facilities for enabling members of the public to access the internet. Clearly they can no longer serve food or drink, but should they perhaps be closed altogether?

Restaurants and cafés within Use Class A3 must all be kept closed, as must pubs and bars within Use Class A4. However hot food take-aways within Use Class A5 can remain open, but must not permit any of the food they serve to be consumed on the premises or in an area (such as a seating area) immediately adjacent to the premises. These regulations do not actually enable A3 and A4 premises to sell hot food for consumption off the premises; so a temporary amendment of the GPDO (or of the UCO) will still be needed for this purpose. Furthermore, there are quite a few planning permissions for cafés or restaurants which contain conditions preventing the sale of hot food for consumption off the premises. An amendment to the GPDO would not in itself have the effect of abrogating any such condition.

Some premises within Use Class D1 are affected by the closure regulations, but others are not. Art galleries must be kept closed (other perhaps than commercial galleries falling within Use Class A1, although in the absence of a definition of “galleries” in the closure regulations this is not entirely clear). Museums must also close, but the closure regulations do not refer to public libraries or reading rooms, nor do they relate to public halls and exhibition halls as such, although concert halls [within Class D2 – see below] do have to be closed. (This does appear to be an anomaly. Maybe the draftsman of the regulations should have looked at the Use Classes Order!) Churches and other places used for worship are, of course, unaffected by the regulations.

Schools, universities and colleges (within Use Class D1(c)) are not affected by these regulations but are, or will be, covered by regulations made by the Secretary of State for Education. I will check this, but have not yet had the opportunity to do so. The 'order' last week to close these institutions must undoubtedly have been (or will be) backed with legislative authority.

So far as Use Class D2 is concerned, many premises within this class are clearly affected by the closure regulations. These include cinemas (as wells as theatres – a sui generis use), concert halls, bingo halls, casinos (another sui generis use), various types of indoor sports facilities, (but not outdoor sports facilities) and also night clubs (yet another sui generis use). As with Use Class D1, there are anomalies in the closure regulations. They do not, for example, refer to dance halls (Use Class D2(d)), unless “other indoor leisure centres” can be stretched to include this category.

Finally, while we are on the subject of sui generis uses, there is no mention of amusement arcades or centres (or fun fairs) in the closure regulations unless, here too, “other indoor leisure centres” can be stretched to include this category. Clearly these regulations were drafted in a tearing hurry, but it might have been a good idea to involve MHCLG in drafting Part 2 of the Schedule to the closure regulations, in order to ensure that no relevant premises were omitted, particularly if they are mentioned in the UCO, either as sui generis uses or within the schedule to that Order.

As this post is published, it seems that the closure regulations may well be extended to a much wider range of uses, possibly embracing the whole of Use Class A1, other than food shops, pharmacies and other essential suppliers, not to mention various uses in other use classes that have not so far been affected by the closure regulations. This is definitely a case of “watch this space”.

UPDATE 8.30 p.m. As I predicted at the end of the blog post above, the Prime Minister has announced that more extensive compulsory closures are now to be introduced with immediate effect. We shall no doubt see the actual subordinate legislation tomorrow. A wide variety of shops within Use Class A1 will now have to be closed, as well as libraries and places of worship, among other premises.

© MARTIN H GOODALL