Planning Services

A planning advice note on smoking shelters and other features

Background

Smoke free legislation in the Health Act 2006 came into force England at 6am on Sunday 1 July 2007
Aim - to create smoke-free places and to protect workers and the public from the harmful effects of passive or secondary smoke
Introduces a statutory smoking ban in 'enclosed' and 'substantially enclosed' premises
The new law will affect most public premises, including restaurants, pubs, bars, shops, cinemas, shopping centres, leisure centres, offices, factories and other enclosed workplaces and public transport
Exemptions include:
- Private accommodation, but not common parts, for example, staircases and lifts
- Hotel accommodation
- Other residential accommodation in care homes, hospices, mental health units; and
- Prisons for adults
Many licensed premises will seek to provide areas for smokers, by the provision of facilities such as smoking shelters, canopies or other covered outside areas which, combined with the use of outdoor space heaters, allow use in most weathers
These structures will have some form of roof, and a combination of walls and openings to comply with the Health Act provisions

What is the purpose of this note?

To provide planning guidance on the provision of facilities for smokers, in the context of compliance with the new health legislation, but please note this guidance note is not a definitive interpretation of the law
To advise on the requirement for planning permission and the factors that will be taken into account to decide whether or not planning permission will be granted

What is meant by 'enclosed' and 'substantially enclosed' premises?

Whether a proposed smoking shelter or related structure complies with the relevant health legislation is not a planning judgement - it is a matter for the council as the Environmental Health Authority who will enforce the legislation
It is helpful to understand fully the use of these terms in the new health legislation:
- 'Enclosed' premises have a ceiling or roof and, except for doors, windows and passageways, are wholly enclosed, either permanently or temporarily; and
- 'Substantially enclosed' premises have a ceiling or roof, but any openings in their walls will have a total area that is less than half of the area of the walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises
When determining the area of an opening, we will not take into account openings where doors, windows or other fittings can be opened or shut
A roof includes any fixed or moveable structure or device that is capable of covering all or part of the premises, and includes, for example, a retractable canvas awning
In summary, a smoking shelter with a roof and walls where the permanent openings have a total area that is the same or more than the total area of walls will be classified as 'substantially enclosed' and will not be classed as a smoking shelter through health legislation
Be aware: you need to make sure that your proposed shelter is not 'substantially enclosed'. If it is then it will not comply with the smoke free regulations and you will be wasting your time and money
You should also be aware that siting a smoking shelter too close to walls of nearby buildings or fences could have the effect of enclosing the structure to the point where it would become 'substantially enclosed'

The need for 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 or blinds attached to buildings - 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
Be aware that it is not the job of the planning team to ensure that your structure meets the requirements of the Health Act and you may want to seek independent advice before submission
You are encouraged to seek informal advice from the planning team before you submit an application

Planning permission will normally not 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 part of the main pub or restaurant use and are lawfully part of the existing business

If you have any doubt about the need for planning permission you should check with us before proceeding.

Application forms for planning permission, can be downloaded from the planning documents web page, or you can get them from the planning reception at Barking Town Hall. A fee is payable and details about fees are available from our web site, but the fee is dependent on floor space or area enclosed.

Applications for smoking shelters should include calculations to show that the structure is not 'substantially enclosed'.

We will normally take up to 8 weeks to process planning applications for smoking shelters and related structures from the time we receive a valid application.

Material considerations

All planning decisions are based upon planning policies in our adopted development plan, related guidance, and any other material considerations.

When assessing a planning application for a shelter, awning or similar structure, we will make sure 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 you should consider the following:

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 of the shelter or awning have any adverse amenity impact in terms of:
- Visual intrusion
- Character and appearance of the area
- Loss of outlook
- Overlooking of adjacent residential premises
- Light pollution
- Being built next to doors, windows or air intake systems either within or adjacent to the premises
- Secondary smoke infiltration into adjacent residential or commercial premises; and
- Introduction or intensification of activity and disturbance near residential or other noise sensitive premises, particularly late in the evening
Will the location of the shelter or awning result in loss of parking spaces, with associated impact on parking problems in the area?
Will the shelter or 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 will need to be of exceptional quality if it will not affect the character or setting of a listed building, or the character or appearance of a conservation area.

Contact us

This advice note is a guide for a complicated process. You should seek further information and advice from the planning online web page. For more information you can contact us at the address shown.

You can also visit the Planning Portal for more information.