Business

Smoke Free Hastings: Smoking Shelters

This page contains the following information about Smoking Shelters:

Introduction
Legislation
Planning and Building Control
Licensing
Health and Safety
Enclosed and Substantially Enclosed premises

Introduction

This information will help businesses that want to provide outdoor Smoking Shelters to ensure that they meet all of the Council's legal requirements, including Planning, Building Control and Licensing as well as the new Smokefree laws.

It will be referred to by Officers of the Council's Planning, Building Control, Environmental Health and Licensing Teams in relation to all enquiries received about Smoking Shelters.

Legislation

The Smokefree legislation does not require the creation of Shelters for smokers and an owner of a premises cannot be compelled to make such provision. However, it is likely that some businesses will want to build Shelters to accommodate people who work on or visit their premises, and who can no longer be allowed to smoke inside their buildings.

If a Smoking Shelter is provided the design will have to be such that it is not an enclosed or substantially enclosed structure as defined by the Smokefree (Premises and Enforcement) Regulations. Otherwise it will have to be smoke-free like the interior of the premises it is associated with, thus defeating the object of providing it.

If a business applies to Planning for consent to erect a Shelter for smokers, Environmental Health will be consulted. Similarly if a business submits details of a proposed Smoking Shelter to Environmental Health, they will share those details with Planning.

Read the Definitions of Enclosed and Substantially Enclosed premises for further information.

The Smokefree legislation does not deal with how Smoking Shelters should be constructed or sited. Therefore the approval or refusal of consent for such Shelters will necessarily be a matter for local determination by regulatory officers liaising with planning officers and others, to ensure that any shelter that is used for smoking is not substantially enclosed and can be used by smokers without offences being committed.

Where businesses do want to erect shelters they will need to give consideration to the following:

local Planning and Building Control requirements
Licensing requirements in terms of outside hours/use of the street
noise issues, especially at night and adjacent to residential areas
smoke drifting into adjacent properties
light pollution affecting adjacent properties where the Smoking Shelter is provided with lighting
litter accumulation
fire safety
general Health and Safety

Planning and Building Control

Planning Permission

Planning Permission will normally be required for the following operations and uses:

permanent external Smoking Shelter structures - whether freestanding or attached to existing buildings
awnings/canopies/blinds attached to buildings as they will almost always have a material effect on the external appearance of a building
use of any land as a beer garden or yard, where the land does not form part of the business premises
construction of timber decking
stub-out bins on the front of premises

Planning permission will not normally be required for the following operations and uses:

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

Lawful development certificate or planning application

Businesses can check the need for planning permission formally by submitting an application for a certificate of lawful proposed development, or informally by seeking advice from Planning. Detailed guidance on the submission of applications is available on the Planning section of this website. Applications for smoking shelters should demonstrate that the structure would not be 'substantially enclosed'. Planning Applications for Smoking Shelters and related structures will normally take up to eight weeks to process from the time a valid application is received. If the application has to go to a Planning Committee, this will extend the decision period by at least four weeks.

Material considerations

All Planning Decisions are based upon Planning Policies contained within the Council's adopted Development Plan, related guidance, and any other material considerations. When assessing a Planning Application for a Shelter, awning or similar structure, the council will seek to ensure that the facilities are well-designed and sensitively sited in a way that:

enhances the street scene
protects the safety and free flow of pavement users and
has no detrimental impact on the amenity of neighbouring residents

In particular:

Is the shelter/awning or other structure in a prominent location?
Is the structure well designed, using appropriate materials, and in character with the existing building?
Will the location/siting of the shelter/awning have any adverse impact in terms of:

visual intrusion
character and appearance of the area
loss of outlook
overlooking of adjacent residential premises
light pollution
siting adjacent to doors/windows/air intake systems whether within or adjacent to the premises
secondary smoke infiltration into adjacent residential or commercial premises or
introduction or intensification of activity and disturbance near noise sensitive premises, particularly in the late evening?

Will the siting of the shelter/awning result in loss of parking spaces, with associated impact on parking problems in the vicinity?
Will the Shelter/awning obstruct or block an adjacent public footpath or road to the detriment of pedestrian or traffic safety?

In general, canopies/Shelters/heaters and similar structures sited on the public highway or on other public spaces are unlikely to be permitted.

Proposals affecting premises in a conservation area, or affecting a listed building, will be particularly sensitive. The design of any smoking-related structure/shelter will need to be of exceptional quality if it is 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 any other amplified sound to any noise sensitive boundary, or hours of operation (although more likely to be addressed under licensing provisions). In some cases, temporary permission may be granted to allow the review of any impact in sensitive locations.

Advertisement consent

If a business is proposing to provide new external signs, for example, to direct customers to smoking shelters, the business may need to make a separate application for advertisement consent. The main concerns in deciding whether to grant consent will be:

highway safety - for example, would the sign cause obstruction to pedestrians or traffic
amenity - would the sign be visually obtrusive, particularly in a conservation area or on a listed building, or add to advertisement clutter

Building regulations approval

The following structures are currently exempt from control under the Building Regulations:

a small detached single-storey building with an internal floor area of not more than 30m² which contains no sleeping accommodation, and is sited at least 1m from the site boundary or constructed substantially of non-combustible material
a small detached single storey building with an internal floor area of not more than 15m² and
the extension of a building by the addition at ground level of:

a conservatory, porch, covered yard or covered way or
a carport open on at least two sides

Where the internal floor area of that extension does not exceed 30m², provided that in the case of a conservatory or porch which is wholly or partly glazed, the glazing satisfies the requirements of Part N (glazing - safety in relation to impact, opening and cleaning) of the Building Regulations 2000.

Licensing

If a business holds a premises licence or a club premises certificate under the Licensing Act 2003, and they plan to alter:

The 'licensed area' in connection with the new Smokefree legislation and/or
The structure of the licensed premises

Businesses will need to submit an application to Licensing to vary their existing certificate or premises licence.

If they are planning to construct a smoking shelter, which encompasses a 'bar' or other facility for the sale or, in the case of a club the supply of alcohol or the provision of any 'Regulated Entertainment' this will constitute a major variation to the Premises Licence, as will any application to vary the licensed hours.

Applications to vary a Premises Licence or Club Premises Certificate must be made to Licensing and copied to the local responsible authorities. In addition the application must be advertised on the exterior of the affected premises and within a local newspaper.

A consultation period of 28 days is allowed for representations to be made by any responsible authority or interested party (as defined within the Licensing Act 2003). If representations are made against the application, it will be necessary for the application to be considered by the licensing committee.

Noise

Members of the public congregating outside buildings but remaining within the boundary of the premises may cause noise and disturbance amounting to a statutory noise nuisance and/or serious enough to warrant a review of the licensed premises under the liquor licensing regime set out in the Licensing Act 2003. Many licensed premises are already subject to noise limits either through existing planning consents and/or licensing conditions.

Noise complaints rose by 1,000 per cent in Edinburgh after the smoking ban was introduced in Scotland, and it is therefore clearly important that licensees give careful thought to how they will manage this issue, and for planning authorities to give careful consideration to this when considering planning applications for smoking shelters.

There are a number of actions licensees can take as part of a noise management strategy to reduce noise from people smoking outside:

Sound trap lobbies or automatically closing doors to prevent noise escaping from the premises as people go outside to smoke
Signage requesting people to respect neighbours when they go outside
A curfew for people who go outside after a set time not allowing re-admittance
Restrict access to outside areas late in the evening and at night
Brief door supervisors on how to monitor and control clients immediately outside the premises
Make the premises completely smoke-free inside and out

Smoke infiltration

The location of smoking shelters could result in the infiltration of secondary smoke into residential and/or commercial properties in the close proximity of the structures, including infiltration into smoke-free premises from where the smokers came

Smoking shelters should not be located under or near any openable windows of the same or adjoining property

Smoking shelters should not be located under or near any air intake fans of the same or adjoining property

Smoking shelters should not be located directly at or in front of the entry and/or exit doors to any premises

Such matters are likely to be considered at the Planning stage of the development and so close liaison with Planning is recommended.

Light Pollution

Light from shelters or structures to accommodate smokers (especially if they go on and off when customers enter/leave the structure) can disturb/be a source of complaint from residents living next to the premises.

Litter

Litter accumulation in or near entrances to buildings or smoking shelters, blowing onto or impinging on public areas

The provision of special bins, with compartments for smoking related litter, placed at locations where problems are expected. Also, the provision of pocket ashtrays to smokers

Fire Safety

Smoking shelters (eg. rooftop patios) not having and/or preventing the means of escape to the safe assembly points located outside would be a possible area of concern. Similarly, structures that prohibit or inhibit safe channelling to the assembly points would also be a cause for concern.

The use of heating devices which are intrinsically unsafe, installed or located in an unsafe manner, and/or poorly secured will be Fire Safety and Health and Safety concerns

Health and Safety

The following points would be of consideration:

The use of heating devices which are intrinsically unsafe, installed or located in an unsafe manner, and/or poorly secured.

Non-substantially enclosed structures erected to accommodate smokers and where the public congregate, being located close to chemical and/or gas cylinder stores.

The intrinsic safety of some structures erected to accommodate smokers may be an issue.

Floor construction materials and general state of repair may help facilitate slip, trip and fall accidents.

Safe access and egress to and from the smoking areas.

Poor lighting and/or outside areas becoming icy, wet, damp or covered in litter thereby increasing the risk of slips, trips and falls.

Unsafe electrical systems provided for outdoor structures and heating equipment.

Enclosed and Substantially Enclosed premises

Premises will be considered to be enclosed if they have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed, whether on a permanent or temporary basis.

Premises are substantially enclosed if they have a ceiling or roof, but there are permanent openings in the walls which are less than half of the total areas of walls, including other structures which serve the purpose of walls and constitute the perimeter of premises. When determining the area of an opening, no account can be taken of openings in which doors, windows or other fittings that can be open or shut. This is known as the 50 per cent rule.

A roof includes any fixed or movable structures, such as canvas awnings. Tents, marquees or similar will also be classified as enclosed premises if they fall within the definition.

This page last updated: 24/07/2008