Trinity barrister, Shada Mellor has acted for Hartlepool Borough Council in closing down a gym which has operated persistently in breach of the Coronavirus Regulations.
Mr Eddy Ellwood had kept Xtreme Fitness in Vue Business Park, Hartlepool open and trading despite repeated advice from the local authority, warning letters and prohibition notices. He asserted that he had a legal right to keep the premises open for himself and members of the public to peacefully protest the “disproportionate measures of lockdown”. Several notices had been posted on the doors and windows of the premises informing people of their right to protest, and that the premises would remain open for that purpose.
The Council were left with no option but to serve a closure notice under the Anti-social Behaviour, Crime and Policing Act 2014 and follow that notice with an immediate application to Teesside Magistrates Court for a Closure Order. The legislation explicitly allows Closure Orders to be enforced with a power to enter premises to do anything necessary to secure them against entry.
In papers served in advance of the hearing on 11 February 2021, Shada argued that the continued operation of the gym did not merely constitute criminality under the Regulations, but constituted a free-standing common law offence of public nuisance, as re-stated by the House of Lords in R. v. Rimmington [2006] 1 A.C. 459. The common law offence is made out where a person does an act not warranted by law which endangers the life, heath property or comfort of the public. Shada also submitted that the gym’s failure to close, giving rise to a risk of infection, independently constituted the tort of nuisance to a serious degree.
Following legal advice at the hearing of the Council’s application, the gym operator did not oppose the making of a Closure Order, which was then imposed by District Judge Capstick for the maximum statutory period of 3 months (with the caveat, that if the law permits gyms in Hartlepool to re-open, the Closure Order will cease to have effect).
During the period of the Closure Order the only persons permitted on the premises are officers of Hartlepool Borough Council, and the owner, but only for maintenance purposes. It is expressly included in the order that the owner is not permitted to use the gym equipment while on the premises. Breach of the Order is an offence punishable by imprisonment.
Shada is a member of Trinity Chambers’ Licensing Group, which has developed a nationally renowned expertise in the interpretation and enforcement of Coronavirus Regulations. Members of the Group are able to provide rapid advice and representation in relation to legal issues arising as a result of the pandemic.