Al Fresco: Trading spaces

You think you know what outdoors is? John Porter asks some awkward questions.

It all sounds quite straightforward. Once the legislation kicks in the rule will be - smoking indoors "no", smoking outdoors "yes". It may not be what we wanted but at least it's clear. Or is it? Without wishing to drop a metaphorical dog-end into the pub trade's collective beer can, do we know what "outside" actually means?

The Department of Health (DoH), which framed the Bill, says the main aim is to ensure second-hand smoke poses no danger to pub employees, and all studies show smoke in an enclosed space is the problem.

But the DoH hasn't included a definition of what constitutes an enclosed space. With many different garden suppliers offering many different solutions - windbreaks, canopies, decking and marquees among them - pub operators will have to tread carefully when planning outdoor developments.

Pubs will know from long, often bitter, experience that any set of regulations which leaves too much scope for local interpretation is, sooner or later, going to cause them problems.

In the original consultation the DoH defined a "substantially enclosed" area as a structure where the total roof and wall surfaces exceed 70 per cent of "the total notional roof and wall area" - that is the total area which would be taken up by the roof and walls if the area was completely boxed in. The consultation added that the terms "roof" and "wall" include moveable and temporary structures.

Any publican who thinks that sounds a bit complicated may be comforted to know that the Local Government Association (LGA) and the Local Authorities Coordinating Office on Regulatory Services (LACORS) agree. The only problem is that the alternative formulation they suggested during consultations was: "Any structure with a roof and at least a single wall shall be defined as being enclosed."

Think what it would mean for a pub. A garden area with a roof canopy and a windbreak could be considered an enclosed area under this definition, and so covered by the smoking ban.

In the event there was no definition of "enclosed" in the Bill which went before Parliament. The DoH promises more guidance when the regulations are published for local authorities.

"As I understand it, the DoH is still working on the 70 per cent definition in drafting the regulations," says LGA policy officer Alice Hood. "The regulations for the ban in Scotland use a definition that basically means premises are defined as substantially enclosed if they have a roof and walls on more than 50 per cent of the perimeter of the premises, but that's not the same as the definition proposed in the English consultation."

With many pub companies having already committed to invest in outdoor areas during 2006, it's a case of making a judgement call on what will be acceptable.

Mercury Inns will be developing the outdoor areas in around 10 of its pubs this year. "I think common sense will prevail when it comes to deciding whether something falls within the spirit of the Act," says managing director Mark Butler.

"We certainly won't be taking the mickey - but if you were to put up a marquee with an entrance from the pub to use as a smoking room, I don't think there's much doubt it would be seen as a permanent enclosed structure."

During the Commons debate which culminated in MPs voting for the smoking ban, health minister Caroline Flint indicated that decisions on what constitutes an enclosed space in practice will be made on a "case by case" basis - which may herald some more interesting times ahead for the pub trade.

Case Study: The Fishes, North Hinksey​

Life's one long picnic at the Fishes. The Peach Pub Company pub at North Hinksey, near Oxford, is making the most of its two acres of riverside garden with picnic hampers that allow customers to fully experience the great outdoors.

"The pub has always had a strong trade at weekends, especially when the weather is good, but the system in place when we took over wasn't working," says general manager Natalie Langman. "Now the picnic hampers are proving very popular and are a great topic of conversation."

The hampers are the brainchild of head chef Corin Earland. Each wicker basket is crammed with plastic deli pots and wax boxes full of tasty food.

Customers choose their hamper at the bar while they are ordering their drinks and take a pager which allows them to find a nice spot in the garden and wait for the bleep to tell them the hamper's ready for collection.

The picnic menu comprises numerous deli items including cheese, cold cuts, fish, pickles, dips, fresh fruit and a selection of breads. Items start from £1.50 making the menu flexible enough for customers to spend as much or as little as they like. Rugs are also available to make the full picnic experience.

Plans are already in place to add an outdoor bar serving chilled, bottled beers and wines this summer.

"The idea has been a complete success and we are really looking forward to the summer," adds Natalie. "Our turnover has increased, our customers stay longer and it's certainly helped to attract new ones. Many come for a meal just because they've heard about the picnic hampers."