In the past few years, a range of factors has contributed to a growing number of establishments offering Shisha smoking as part of the goods and/or services they provide. Shisha smoking involves smoking tobacco or herbal substitutes, mixed with molasses and fruit to provide a sweetly flavoured smoke. The smoke is bubbled through cold water in the hookah pipe used to inhale it. Hookah pipes are often shared. Originating in some areas of Asia and the Middle East, it is becoming an increasingly popular pastime in the UK. Commonly enjoyed alongside a drink, or after a meal, providing access to Shisha on business premises can be legally problematic in some cases. Here we take a look at when and how Shisha can legally be provided and used, alongside consideration of how cafes, restaurants and similar establishments can adapt their premises to ensure they’re complying with relevant legislation.
What is “ancillary” use?
There are a variety of categories which are used to describe business use. For example, A1 premises are used for retail activities, hairdressers, travel agents and similar, whilst A2 premises are used for the delivery of professional services. A3 use relates to restaurants and cafes, whilst A4 use is related to drinking establishments. Finally, hot takeaway premises are classified as A5. If a leaseholder or premises owner wishes to change the use to which their establishment is put (for example they wish to close their pet shop and set up a restaurant instead), they will need to apply to the local authority to agree a change of use. Local authority decisions on whether to grant a change of use are based on a range of factors, including how many premises in the area already operate in the desired category, and the potential effects on nuisance behaviour, health, traffic and similar considerations. Whilst changing premises use can be problematic, it’s often possible to provide additional services as an ancillary use, without changing category. It is this facility which many A3 (restaurants) and A4 (drinking establishments) use to enable them to offer Shisha smoking legally.
Ancillary use means that the service offered isn’t the main reason why people are entering the premises. In the case of Shisha smoking, local authority planning enforcement officers would need to be confident that the main reason customers were entering A3 or A4 premises which house a Shisha smoking area was to partake of services included within the A3/A4 definition. So, if it was clear that people were entering a restaurant primarily to dine, but a few were enjoying a Shisha pipe afterwards, Shisha in this instance would be defined as ancillary to A3 use, and legal. Alternatively, if premises for A3 use weren’t operating as a restaurant (for example, not offering meals), or appeared to only attract Shisha smokers, enforcers could argue that the premises weren’t operating in line with their granted permissions. For example, an appeal case in 2017 concerning the Cafe Baku in W1, confirmed the court’s decision that the Cafe’s Shisha activities did not form an ancillary part of its activities, but rather a substantial part. The evidence used included factors such as:
– A Shisha pipe and platter of food was offered as a combined package for a single price. Analysis of the cost showed that the cost of the platter accounted for less than 25% of the overall price, demonstrating that the bulk of the cafe’s income was derived from Shisha smoking rather than food and drink.
– Analysis of what was bought indicated that the majority of customers were purchasing “Shisha experiences”, rather than food and drink alone with a small minority of customers opting for a Shisha smoke.
– When council enforcement officers visited the premises, they noticed that the outdoor seating area was busy, with all customers sat in that area appearing to be either smoking Shisha pipes or in a group that was sharing them. In comparison, the inside of the cafe was completely empty.
– There had previously been complaints regarding the smell of the pipes, as well as complaints regarding disturbance and noise emanating from the cafe.
Compliance with smoking legislation
The Health Act 2006 sets out clear criteria under which smoking can still take place in public places. The public are still allowed to smoke outside, or under a structure which has a roof and 50% or more of the wall space open to the outside. Clearly no business would be allowed to retain its right to trade should Shiska smoking (or any other form of smoking), be permitted indoors. For many businesses, a well-built shelter can provide a comfortable smoking space in which customers will wish to linger, at the same time as complying with government guidance. If business owners are considering the provision of such a structure, it’s important they use a professional with experience in building regulation services London clients regularly use. Architects and structural engineers have an excellent grasp of the legislation surrounding smoking shelter construction and can advise accordingly.
With care, Shisha smoking can be ancillary to A3 or A4 premises use
In considering whether Shisha smoking can form part of the services an A3 or A4 premises provides, the key issue is whether the smoking can be shown to be a minor part of the operation’s activities. Enforcement officials normally need several different pieces of evidence that suggests Shisha is forming the major part of what a business provides before a successful case can be made. If a business does decide to offer Shisha smoking, actions such as ensuring Shisha occupies only a minor place on menus etc, limiting Shisha smoking to a minority of customers, being able to demonstrate that revenue from Shisha smoking is negligible, ensuring smokers are appropriately accommodated and being able to show that in other respects the establishment is being well run can all help to strengthen the case for Shisha smoking to be classed as an ancillary activity.
Get in touch to find out more about Shisha smoking and potential challenges to its ancillary status.
