Smoking can cause planning permission

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Simon Exley of Slee Blackwell’s Commercial Department takes a look at the legal implications of the new smoking ban.

On 1 July this year the Health Act 2006 came into force with the aim of creating smoke-free places and protecting people from the harmful effects of secondary smoke. The statutory smoking ban applies to all “enclosed” and “substantially enclosed” premises. So, if you are responsible for running a restaurant, a pub, a shop, an office or any other regulated premises you need to know exactly what the law requires. A number of exemptions are currently allowed including hotel accommodation, and other residential accommodation in care homes, hospices and mental health units. Whether a proposed smoking shelter or related structure complies with the relevant health legislation is not a planning judgement but a matter for the Local Authority as the Environmental Health Authority, who will enforce the legislation.

Premises are “enclosed” if they have a ceiling or roof and (except for doors, windows or passageways) are wholly enclosed on either a permanent or temporary basis. “Substantially enclosed” premises have a ceiling or a roof which covers all or part of the area but less than half the total area of walls is permanently open. When determining the area of an opening, no account can be taken of openings in which doors, windows or other fittings can be opened or shut. You should therefore ensure that any smoking shelter (proposed or already constructed) is not “enclosed” or “substantially enclosed”, any installed which are will not comply with the smoking regulations and you will have wasted your time and money.

In addition to the requirements of the Health Act 2006 planning permission will normally be required for the following: – permanent external smoking shelters, either freestanding or attached to existing building awnings/canopies/binds attached to buildings pavement and forecourt tables and chairs sited on the public highway or a private forecourt use of any land as a beer garden or yard, where the land does not currently form part of the business premises timber decking stub out bins at the front of premises Planning permission will not normally be required on the following:- portable freestanding awnings/canopies and space heaters the use of beer gardens and yards, where these are ancillary to the main pub/restaurant use and are lawfully part of the existing business.

When assessing a planning application for a shelter, awning or similar structure, a Local Authority will seek to ensure that facilities are well designed and sensibly sited in a way that:- enhances the street scene, and protects the safety and free flow of pavement users and has no detrimental impact on the amenity of neighbouring residents. In general canopies/shelters/heaters and similar structures sited on the public highway or in other public spaces are unlikely to be permitted.

Proposals that will be particularly sensitive are those which affect premises in a conservation area or affect a listed building. In such circumstances, design of any smoking-related structure shelter will need to be of exceptional quality if it were not to affect the character or setting of a listed building or the character or appearance of a conservation area. If planning permission is granted, conditions may be imposed to restrict, for example, the transmission of music or other amplified sound to any noise sensitive boundary, or hours of operation (they are more likely to be addressed under licensing provisions). Furthermore, in some cases a temporary permission may be granted to allow the review of any impact in sensitive locations. Separately an application for Advertisement Consent will also require to be made where it is proposed that there are to be external signs, for example, to direct customers to a smoking shelter.

The main concerns of a Local Authority for deciding whether to grant an Advertising Consent will be:- highway safety – would the sign cause obstruction to pedestrians or traffic?; amenity – would the sign be visibly obtrusive – particularly in the conservation area or on a listed building. Where there is a liquor licence in place, the holder of the licence must also check the provisions of their Premises Licence to consider whether a variation needs to be submitted. When original applications were made for a Premises Licence, licensing plans were submitted identifying the areas of premises where the consumption of alcohol is permitted.

If smokers are to be allowed to drink in previously unused external areas the plans will need to be amended and a variation will need to be submitted. The holder of the Premises Licence will also need to consider if any existing outside areas have conditions governing their time of use as again this may necessitate a variation. Other conditions to check include re-admission policies and queuing requirements.

If you have already put in place a smoking shelter you should be concerned that it meets not only the requirements of the Health Act 2006, but planning requirements and any Premises Licence has been reviewed and updated as necessary. Similarly, if you have not yet put in place a smoking shelter but are considering doing so, all the points raised will need to be addressed.

To find out more in regard to the issues raised in this article and for further advice regarding planning, the Health Act 2006 and Licensing, contact Slee Blackwell. Simon Exley can be contacted on: 01271 372128.