Compulsory closure of premises – revised rules

The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020 No. 588) are now in force. They further amend the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350). I have not previously commented on the No.3 amendment regulations (S.I. 2020/558), which came into force on 1 June, and so I will cover those as well in this note. However, I shall confine this summary to those regulations that govern the use of premises; I am not therefore commenting on those regulations that continue to govern personal movement.

Where various premises have previously been required to be closed, the proprietor of a business offering goods for sale or for hire can now open it to the public, provided the shop is separate from the premises used for any business that is still required to remain closed. So all shops can now open to the public. “Shops” are not defined in the Regulations, and so it would seem that the definition in Class A1 of the Schedule to the Use Classes Order 1987 (as amended) can be assumed to apply. As before, such businesses are also permitted to make deliveries or otherwise provide services in response to orders received through a website, or otherwise by on-line communication, or by telephone (including orders by text message), or by post.

Again, as before, a café or restaurant may be open solely to sell food or drink for consumption off the premises, provided the café or restaurant is separate from any premises used for a business that is still required to remain closed. For this purpose, a shop, café or restaurant is separate from premises used for the closed business if it is in a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside those closed premises. The list of catering premises that must otherwise remain closed remains the same as it was in Part 1 of Schedule 2 in the original regulations.

There are slight changes to Part 2 of Schedule 2, comprising the list of other premises that must remain closed. Drive-in cinemas are now exempted from the requirement to close cinemas. The prohibition on opening museums and galleries no longer extends to retail galleries, where the majority of the art on display is for sale. (These are galleries that fall in fact within Use Class A1, rather than D1). Betting shops are no longer required to remain closed.

On the other hand, the prohibition on the opening of indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities was extended by the No.3 amendment Regs (on 1 June) to include indoor games, recreation and entertainment venues. Similarly, the prohibition on the opening of funfairs (whether outdoors or indoors) has been extended by the No.3 Amendment Regs to embrace theme parks and adventure parks and activities. These were clearly unintended omissions from the original Regs. For the same reason the prohibition on opening playgrounds etc. has now been tweaked twice, and it now prohibits the opening of playgrounds, indoor sports courts, outdoor gyms and outdoor swimming pools. The listed prohibitions have also been extended to social clubs, model villages and indoor attractions (as defined in the amended paragraph 23E(2)) at aquariums, zoos, safari parks, farms, wildlife centres and any place where animals are exhibited to the public as an attraction. From1 June, aquariums, zoos, safari parks, farms, wildlife centres were added to the list of attractions that must be closed, but from 15 June they can now open, with the exception of any ‘indoor attractions’ (as defined). [Confused? Well I confess that I am.] Indoor attractions must also remain closed at visitor attractions such as botanical or other gardens, biomes or greenhouses; heritage sites or film studios and landmarks, including observation wheels or viewing platforms.

The prohibitions in paragraphs 21, 22 and 23 have been removed, so that it is now lawful to open all types of outdoor market, car showrooms and auction houses.

Although libraries must remain closed, this does not prevent the library from carrying on a business of offering goods for sale or for hire in a shop which is separate from the premises usually used for the provision of library services (“the library premises”); nor does it prevent the making deliveries in any way permitted under the rule mentioned above allowing shops to carry on remote ordering and delivery services; and neither does it prevent a library from operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the library premises.

Places of worship must remain closed for public worship, but are now permitted (in addition to providing for funerals, broadcasting an act of worship, whether over the internet or as part of a radio or television broadcast, certain essential voluntary services or urgent public support services, as specified in the Regs) to be open for private prayer by individuals, i.e. prayer which does not form part of communal worship. Furthermore, a place of worship is permitted to carry on a business of offering goods for sale or for hire in a shop which is separate from the place of worship, and to make deliveries or otherwise provide services in response to orders received by the means mentioned above (i.e. online, by phone or by post). A place of worship may also operate a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the place of worship.

For these purposes, a shop, café or restaurant is separate from a place of worship or library premises if it is a self-contained unit, and provided also that it is possible for a member of the public to enter the shop or café from a place outside the place of worship or library premises. It should perhaps be emphasised that the amended regulations do not permit a use of any premises that is not already authorised under the planning legislation; nor do they permit such a use in breach of any planning condition, enforcement notice or other legal constraint on such development.

There are also changes to the list of premises in Schedule 2 that must remain closed. The most important change is the complete removal of Part 3 (which was the part of the schedule that listed premises that could remain open for business), consequent upon the amendment of Regulation 5(1), which now prohibits only the provision of library services (with the exception mentioned above).

Oh, I almost forgot; you will be delighted to know that the prohibition on gyms and other sports facilities no longer extends to facilities for training for elite athletes (including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres). But before any of you sporty types get overenthusiastic about this, the definition of ‘elite athletes’ is confined to those officially in the running for the British Olympic Team, or at a similar high level in their sports.

And finally, don’t get too used to the rules outlined above, because they are liable to change again in less than three weeks’ time, if the government decides that it’s safe to further relax the coronavirus lockdown. (Alternatively, if recent public behaviour leads to an increase in the rate of infection, rather than a continuing decrease, this could prompt a tightening of restrictions instead.)

© MARTIN H GOODALL