Legal advice: Outdoor smoking areas

Planning and licensing law must be considered when creating an outdoor area for smokers.

By Keith Miller and Niall McCann of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

One of the consequences of anti-smoking legislation may be that publicans will wish to develop outdoor space for customers who want to smoke while they enjoy their drink or bar snack. You could consider covering over an outdoor area or adding an open-sided extension to provide a facility which is not an enclosed area, in which smoking would be banned.

Some of the issues you should bear in mind are:

• lease and/or freehold covenants
• planning and by-laws
• licensing.

Lease and covenant restrictions​

If you are a tenant, your lease will almost certainly contain restrictions on additions and alterations, particularly external works, and in some cases there will be an absolute prohibition.

This would not necessarily mean that your landlord would turn you down flat if asked, but he can do and might demand a price for giving his consent - for instance, an increase in your rent. His approval "may not be unreasonably withheld or delayed" in most cases - nevertheless it must be obtained and you must apply formally with drawings of your proposals.

If you own a freehold building, check your title, as some properties are subject to restrictive covenants requiring approval from neighbours or former owners for extensions or external works.

Planning concerns​

Planning permission will be required in most instances. If in doubt, ask your local planning department. If you are in a conservation area or your pub is a listed building further consents will be needed. Depending on what works are required, building regulation consent may also be necessary. Electrical work and glazing are now more strictly controlled and should be carried out by registered professionals or overseen by the local building control department.

In view of the special purpose of the area, the method of dispersing or extracting the smoke produced by customers may become an issue for your neighbours.

Remember to consider access for the disabled. "Service providers" must take the needs of disabled people into consideration in the way they provide their service. For example, a patio may need a ramp for wheelchairs and space between tables should be adequate, so as not to prevent access to disabled customers. Table service could be offered, to avoid the need for these customers to travel to an internal bar counter.

Licensing​

The licensing aspect of developing an outside area is less clear. Gone are the days of making an application under the Licensing Act and putting in an appearance before the magistrates.

Under the new legislation it is advisable, though there is no specific requirement, to have your licence formally varied before doing any work. This would involve making the application, advertising it, displaying the necessary notice and attending a committee if representations are received.

Sounds too much like hard work? Well, in our experience some councils have been willing to forgo the formalities where the proposed changes are relatively minor and accept new plans to be attached to the premises licence provided that a covering letter explains the proposed changes. This is an area in which the trade has asked for further guidance. Alternatively, you could apply for a new premises licence for your outside area. The reason for this approach is to avoid the risk, when applying to vary your premises licence, of onerous conditions being placed on it which could apply to the whole of your establishment. At least if you apply for a new premises licence and you have a rough ride at the committee hearing you will not jeopardise how your business currently operates in the rest of the premises. If the conditions attached to the new licence are completely unworkable you have the option of choosing to continue to operate under your old licence, rather than taking the new licence up.

We would recommend that any applications are submitted sooner rather than later before the issue of outside smoking areas becomes a controversy! Although local authorities are now involved in the administration of licences as well as planning, these are two separate functions and one department's approval does not imply the consent of the other.

Some councils may decide to raise the profile of the licensing objective regarding the protection of children.

In other words, the perceived danger to children of straying into a smoking area may lead to a further series of conditions and guidance notes. Again, will a serving facility be required in the smoking space or will it be enough to tell smokers to extinguish cigarettes before taking a trip to the bar? There may be similar concerns about toilets.

Once the bandwagon starts rolling, who knows where it will stop?