This article first appeared in the January 2014 NAPE newsletter.
In 2013 shisha lounges continued to be a hot planning enforcement topic and with an apparent increase in numbers of shisha lounges all over the country, the topic will no doubt remain interesting in 2014.
Where shisha lounges are not operated in accordance with laws and regulations, they have the potential to cause serious harm and if it is in the public interest, planning enforcement should be considered as part of a multi-agency approach. A number of local authorities have already issued guidance for a multi-agency approach on shisha lounges.
Planning Enforcement is very important as part of such a multi-agency approach because enforcement action can result in an unauthorised and inappropriate shisha lounge being shut down.
Unauthorised development could consist of either operational development or a material change of use. The Smoke Free (Premises and Enforcement) Regulations 2006 require a 50% opening in walls for smoking shelters. Most smoking shelters would require planning permission for operational development and where this is not obtained, enforcement action should be considered.
The use of premises for shisha smoking is sui generis. Any change of use to the use as a shisha lounge therefore requires planning permission for a material change of use. The below appeal cases deal with the material change of use of premises where shisha smoking was alleged to be a key part of the change of use.
In the first case in Hillingdon the Inspector determined that there was insufficient evidence that the shisha smoking itself (as alleged in the enforcement notice) resulted in a change of use of the premises and therefore quashed the notice. At the same time he also granted permission on a s78 appeal for a (different) change of use of the premises.
In the second (Sandwell) case the change of use was not in dispute. The local PCT objected that the proximity to a school and the effect of shisha smoking on the health and wellbeing of young people was a material planning consideration but the Inspector disagreed and granted planning permission.
Hillingdon case (December 2013 decision)
Hillingdon Council had issued 3 enforcement notices including a notice for the Change of use from A4 (drinking establishment) to a mixed use comprising A4/covered area for smoking shisha pipes (sui generis).
In submissions at appeal, the Council contended that due to the intensification of the use of the former covered patio/smoking area, a material change of use had occurred. The Council submitted that the number of patrons purchasing beverages at various times of the day strongly suggested that the use of the premises for smoking shisha pipes is not an ancillary use of the drinking establishment.
The inspector said that the overall changes to the premises and resultant increased capacity reinforced his view that some form of change of use had occurred due to intensification. However, he felt that there was insufficient evidence to conclude that the material change of use was solely due to the introduction of shisha smoking, which is what the Council alleged in its enforcement notice.
The inspector had expected firm evidence relating to the precise numbers of shisha smokers in comparison with other smokers or other users of the public house. In his view the Council had not conclusively shown that shisha smoking, in itself, had been anything more than an ancillary use in the main bar areas and the dessert lounge. He stressed that the overall activities in the new lounge, in conjunction with the other unauthorised works, might well have resulted in a material change of use but in this case he did not feel he could correct the notice. He decided therefore that there had not been a change of use to a mixed use comprising A4/covered area for smoking shisha pipes (sui generis).
The appellant also submitted a s78 appeal for the additional use of a Shisha Lounge (sui generis) within existing building/grounds of building (A4) use. The inspector decided that although he did not agree that the smoking of shisha pipes itself had resulted in a change of use, the use of the premises had in fact changed to a mixed use of Class A4 and use as a Shisha Dessert Lounge (for eating, smoking, drinking and relaxation). He decided that the mixed use had not had any effect on the character and appearance of that part of Hillingdon and granted permission.
Therefore, even if the enforcement notice had alleged the correct change of use, planning permission would still have been granted in this case. However, the case tells a salutary tale to ensure evidence gathered at investigation stage matches the allegation in a notice.
Sandwell Metropolitan Borough Council (January 2013 decision)
In the Sandwell Metropolitan Borough Council case, an appeal decision was issued in January 2013 for the conversion of a building into a coffee shop and the construction of an outside shelter for smoking shisha. The Council said that they would have refused the application on health and crime grounds.
The local PCT objected at appeal on the grounds that shisha contains tobacco, which is harmful to health, and the use of shared waterpipes could increase communicable diseases such as tuberculosis and hepatitis C. Reference was made to the 2010 Tower Hamlets judicial review case in which it was determined that the proximity of a site to a school and the effect on the health and wellbeing of young people was a material planning consideration. The Inspector also considered paragraph 69 of the NPPF which states that planning can play an important role in creating healthy communities.
However, the inspector distinguished the Tower Hamlets from the shisha case, because there are age-related restrictions on the sale and consumption of tobacco products, unlike fast food. He said that the planning system does not exist to duplicate any such control under other legislation.
The Inspector determined that there was no objective evidence that the development would have a harmful effect on crime, antisocial behaviour and the fear of crime in the West Bromwich town centre.
The lesson is that where a local authority chooses to refuse permission for a shisha lounge on health and crime grounds, these reasons need to be very well motivated and supported by compelling evidence.
Although the shisha uses in these two cases turned out to be permitted, it is likely that a number of shisha lounges continue to operate in breach of effective enforcement notices.
In April 2013 we saw an example of what could happen where compliance with effective enforcement notices remains outstanding. Ealing Council prosecuted the owner of a shisha lounge for non-compliance with an enforcement notice that required him to cease operating as a café and shisha pipe lounge and revert to a shop. He was fined £5,000 for the planning offence. He was also fined for smoking law offences and was ordered to pay the Council’s costs.
Planning Contravention Notice
Where a local authority suspects that an unauthorised material change of use to a shisha lounge has occurred, it is useful to serve a Planning Contravention Notice to elicit further information on the use and also put the owner/occupier on notice that the planning enforcement investigations are becoming more serious. Investigation of smoking shelters is relatively straightforward.
Serving a Stop Notice alongside an enforcement notice, requiring operations to cease within 72 hours, is a radical solution to unauthorised shisha lounges. A fine of £20,000 can be handed down for breaching a stop notice. Bear in mind though, that a person with an interest in the land or who occupies the land at the time the stop notice is served, may be entitled to compensation for loss or damage that is directly attributable to the prohibition where the planning enforcement notice is quashed on appeal on grounds other than those mentioned in paragraph (a) of section 174(2) of the TCPA 1990 (and in other circumstances). A stop notice should only be considered where a local authority is very confident the enforcement notice cannot be successfully challenged on grounds other than (a).
A multi-agency approach is essential to tackle unauthorised shisha lounges. To aid enforcement officers in understanding which other agencies may be involved, here is a non-exhaustive list of other laws relevant to shisha lounges:
• S8(1) of the Health Act 2006 provides that any person who controls or is concerned in the management of smoke free premises must cause a person there to stop smoking. Maximum fine £2500.
• ‘No Smoking’ signs must be displayed in accordance with s6 of the Health Act 2006. Fixed Penalty Notice of £200 or a Fine of £1000 on prosecution.
• S7 of the Health Act 2006 determines that it is an offence to smoke in a smokefree place. Fixed Penalty is £50 or on prosecution a fine of £200.
• Waste Disposal & Infection Control: Health & Safety at Work etc 1974
• Food Hygiene (England) Regs 2006
• Environmental Protection Act 1990 – statutory nuisance
• Licensing Act 2003- Licence required for the provision of late night refreshments and provision of regulated entertainment (playing of recorded music /live music /dancing)
• Building Act 1984 (Building Regs 2010) with structural and fire safety provisions
• The Regulatory Reform (Fire Safety) Order 2005
• The Children and Young Persons Act 1933 (as amended) - S7(1) offence to sell tobacco or cigarette papers to persons under 18
Please email Izindi@ivylegal.co.uk for copies of the Hillingdon and Sandwell appeal