‘If you can’t smoke in it, it won’t be COVID safe’

As the UK nations start to open up for businesses following lockdowns, some of our favourite institutions are also finally being allowed to open their doors – or at least their gardens if they have them.

But in perhaps a fit of exuberance, according to local and national newspaper reports, a significant number are not following the rules and their new ‘outdoor’ structures are too enclosed to be compliant with COVID rules.

There is concern that hospitality business owners are getting their advice from the people selling them the sheds, domes and greenhouses – when they would be better off asking EH.

Hospitality businesses will already be intimately familiar with COVID compliance for outdoor structures as they are identical to the smoking ban rules: if you couldn’t smoke in it, it won’t be COVID compliant.

And for pubs and bars in a pickle, the EH officers that EHN Extra spoke to are confident they can still help.

CIEH President and legal trainer Julie Barratt is critical of the way the guidance has been issued by central government. What should have been a simple message of ‘follow the smoking ban rules’ has instead been complicated. Even the COVID regulations refer to other regulations (the smoking ban regulations), which doesn’t make it easy for people to follow.

Barratt added that some businesses may have been getting advice from wrong places such as the retailers of outdoor structures, and also local authority planners who have been sought out for advice around whether planning permission is needed.

“And the answer is no, you don't need planning permission as it's a temporary structure, bung it up,” said Barratt. “But the planners haven't said, ‘But you might want to talk to environmental health as it needs to be 50 per cent open to air’, because why would they think that?

“There's a degree of joining-up that's not gone on. But when you look at the speed that these regulations have come out, you can see why that's not happened. We haven't had time to sit back and think ‘what are the consequences, who needs to be joined up’?

“And the businesses haven't had very long to get ready. And in the desperate breakneck urgency to get the premises open and be serving people outside, they've done what they think. It's a product of legislation and guidance made quickly and followed blindly.”

Barratt advised businesses that are not in compliance to still contact EH so they can help make them COVID secure - though in some cases this may involve a retrofit. She added: “This is deeply unfortunate because we are going to get criticised for enforcement when, had we been asked for advice, we could have provided information which would have stopped all this.”

EHP Tony Lewis at the Royal Agricultural University said he and his colleagues were “dismayed” that the hospitality sector did not appear to have taken advice from EH and instead have “leapt ahead” to provide facilities that “frankly, are just not within the law”.

He added: “There should not be this issue because the standards which are being required with COVID, are no different to what they've been required to provide for years in respect to smoking shelters.”

Asked whether central government should have made this more explicit, Lewis said “maybe” but added that the focus of the government has been “political rather than health focused”. The terminology used by central government is all about the “road map to freedom - without explaining in public health terms what we're doing and why we're doing it”.

He added: “Relying on publicans to read the regulations is frankly ridiculous. There is a responsibility if a publican is uncertain as to what they should do [to find out] - if they are a tied house, then the brewery perhaps should be offering advice. If they're a publican, and a member of the Licence Victuallers Association maybe they should be offering advice.

“But at the end of the day, the only place where the advice is assured is from environmental health colleagues.”

One EH officer in the north of England said their council had received “a lot of enquiries with regards to outdoor structures” from hospitality businesses and is trying to support them in re-opening. They pointed to Sunderland City Council, which has produced guidance, and a series of videos on how to re-open safely, on behalf of a few local authorities.

They added: “Some of the pubs are making some fabulous outdoor areas, but not all appear to be COVID secure. Of course, the weather here puts us at a bit of a disadvantage.”

EHP Sheila Roberts, director of enforcement and safety, and head of regulatory services, at the London Borough of Newham, said the borough does not have many pubs and bars planning on opening as many don’t have outdoor spaces. “Most of our pubs are very compliant, some don’t intend to open until May,” she said.

“We did have one example where a venue wanted to use – it looked like an igloo with a table in it.” Roberts said the team discussed the issue and said ‘okay’ as long as ventilation was put on the sides to make it less than 50% enclosed. “Another pub wanted to have a DJ and didn’t know they were not allowed to do that.”

EHP Chris Turner with Worcestershire Regulatory Services said his team had received a number of enquiries about outdoor covered spaces and that some venues were at first “hoping to get away with more than is legally required”. But he said he and his colleagues were bracing themselves for an increase in noise nuisance complaints as more people spend time in groups outdoors.

Read an article by Julie Barratt in the May 2021 issue of EHN, out at the beginning of May.