2. Making a smoking shelter
You also need to think about the nuisance and planning issues that may affect the business if you do provide a shelter.
Nuisance
The location of shelters for smokers could result in smoke drifting into residential dwellings and/or commercial properties.
Light from shelters for smokers (especially if they go on and off when customers enter or leave the shelter) could disturb local residents living next to shelters and be the source of a complaint and nuisance.
For a nuisance to occur the odour and/or smoke or light problem must happen frequently over a period of time. A smoking shelter next to neighbours' dwellings or gardens may cause such problems. The local authority must investigate all nuisance complaints that they receive from the public. If they are satisfied that smoke or light coming from a premises is a statutory nuisance (including from outdoor areas such as car parks and beer gardens), they must take action. This would normally take the form of an abatement notice, which, if breeched could lead to a fine of up to £20,000 per offence. People affected by a statutory nuisance can also take private action.
- Structures to accommodate smokers should not be under or near openable windows of the same or adjoining premises
- Structures put up for smokers should not be under or near any air intake fans of the same or adjoining property
- Structures put up for smokers should not be directly at or in front of the entry and/or exit doors to any premises
- Make sure lighting levels provide safe access and egress to the structure but do not give rise to complaint.
Noise and Public Order
People and music are the two main sources of noise associated with pubs, clubs and bars. More customers outside will obviously increase potential disturbance for neighbours. If not properly controlled this could result in complaints from businesses or people who live in your local neighbourhood. There are three sources of potential noise and public order problems that you need to control:
- Amplified music
Customers using outdoor areas of the premises
Customers gathering outside the business perimeter
The local authority must investigate all noise complaints that they receive from the public. If they are satisfied that noise coming from a premises is a statutory nuisance (including from outdoor areas such as car parks and beer gardens), they must take action. This would normally take the form of a noise abatement notice, which, if breeched could lead to a fine of up to £20,000 per offence. People affected by a statutory nuisance can also take private action.
Licensing Act 2003
Businesses must have procedures to prevent a public nuisance, otherwise noise and public order problems result. Then the local authority can take action to review the premises' licence. This will allow statutory consultees and other interested parties, to ask that specific conditions are placed on the licence, or the right to hold a specific event be removed. Noise coming from a premise or the vicinity of a premise can be considered, meaning noise caused by patrons is a responsibility of the management if they are directly linked to the premises (for example if they are smoking or drinking outside).
If a condition of a licence is breeched, then action against the licence holder could lead to a fine of up to £20,000 per offence.
Litter
Cigarette butts and packets dropped on any open space are defined as litter. An increase in customers or staff outside increases the risks of smoking related litter adjacent to your premises.
Managers have a legal duty to ensure litter from their premises is controlled. Persistent problems will be investigated and may result in a Street Litter Notice. This requires you to provide a bin and take reasonable steps to ensure that land next to the premises is kept clear of litter. If you don’t a fixed penalty notice would be served on the owner or premises license holder. In addition, dropping litter on any open space is an offence. Any person who is seen to drop smoking related litter by an authorised officer of Exeter City Council will be issued with a fixed penalty notice.
To control this problem, provide fixed or portable outdoor ashtrays or bins that:
- are positioned either next to entrances or at any location where smokers are likely to congregate to smoke;
- do not interfere with the activities of other legitimate users of the pavement or highway;
- regular sweeps and litter picks
- supervision by management
Planning
No smoking signs must be displayed at each public entrance to a building and they must be at least A5 (148mm x 210mm) in size.
- No such advertisement may exceed 0.3 square metres in area
- Illumination is not permitted
- No character or symbol on the advertisement may be more than 0.75 metres in height.
If the property is a listed building, in some circumstances Listed Building Consent may be required. Before displaying any sign it is strongly advisable to contact the Council with a drawing of the proposals to seek confirmation that it will not be necessary to make an application.
The creation of a roof terrace or similar is likely to require physical alterations such as new doors or railings, which will require planning permission. The Council’s Development Control section can provide informal pre-application advice on the likelihood of gaining planning permission.
Planning permission is likely to be required for any form of extension to commercial premises (such as a covered way or awning) or a freestanding building/structure to provide shelter for smokers. The Council’s Development Control section can provide informal pre-application advice on the likelihood of gaining planning permission.
A smoking shelter attached to a listed building will also require Listed Building Consent.
Umbrellas in pub gardens and outside other buildings open to the public are likely to need planning permission, depending on their location, size, physical attachment and permanence. The Council’s Development Control section can provide informal pre-application advice on the likelihood of gaining planning permission.
The placement of fixed bins outside commercial premises will need planning permission. The placement of bins that are not fixed will not require planning permission. If the bin is placed on public highway land, the permission of the Highway Authority will also be required. Ashtrays or “butt bins” fixed to the external wall of a building will not normally require planning permission unless they are very large, but may require Listed Building Consent.