Smoke free - key issues in relation to smoking shelters

The smoke free legislation does not require the creation of shelters for smokers and an owner of premises cannot be compelled to make such provision. However, it is likely that some businesses will want to build shelters to accommodate people who work on or visit the premises and who can no longer be allowed to smoke inside their buildings.

Furthermore, the smoke free legislation does not deal with how smoking shelters should be constructed or sited other than establishing the 50 per cent rule (see below). Therefore the approval of such shelters, or otherwise, will necessarily be a matter for local determination by Environmental Health staff liaising with planning officers and others to ensure that any shelter that is used for smoking is not substantially enclosed and can be used by smokers without offences being committed. 

The following can be offered as general guidance.

Smoking is not permitted in the vast majority of workplaces and public places which are enclosed or substantially enclosed.

Premises will be considered to be enclosed if they have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed, whether on a permanent or temporary basis.

Premises are substantially enclosed if they have a ceiling or roof, but there are openings in the walls which are less than half the total areas of walls, including other structures which serve the purpose of walls and constitute the perimeter of premises.

This is known as the 50 per cent rule - put simply:

• if 50 per cent of the walls or more are missing then it is legal to smoke in the area; or
• if more than 50 per cent of the walls are present then it is illegal to smoke in the area

When, calculating the area of an opening, no account can be taken of openings in which there are doors, windows or other fittings that can be opened or shut.

A roof includes any fixed or moveable structures, such as canvas awnings

Tents, marquees or similar constructions will also be classified as enclosed if they fall within the definition (note that tent/marquee side-panels will be classed as rolled down even when they are rolled up.)

In general if an opening or cover can be closed, the 50 per cent rule will be calculated on the basis that those openings are closed.

Where businesses do want to erect shelters they will need to give consideration to the following:

• planning requirements - Any permanent structure sited on commercial premises will require planning consent. For further advice please contact the Planning Department on 01302 734854
• building control requirements - Large or complex structures may require building control approval. For further advice please contact the Building Control Department on 01302 734848
• licensing requirements in terms of outside hours/use of the street - This particularly relates to pubs and clubs. For further advice contact the Licensing Department on 01302 737590
• noise issues, especially at night and adjacent to residential areas
• provision of suitable litter receptacles to help keep the streets/outside areas clean
• the use of temporary covers that may cause the structure to be classed as substantially enclosed

The siting of the shelter is also important and it is therefore recommended that:

• it should not be sited too close to sheltering walls or other structures which may prevent proper air-flow through the shelter since this would not only be against the spirit of the law and common sense but could also effectively render the structure substantially enclosed
• there are no hard and fast rules about how far away the structure must be from a sheltering wall in order for the wall not to be considered as forming part of the shelter, the key issue is whether it prevents proper air-flow through the shelter
• it should be sited so as to ensure as far as possible that second hand smoke will not drift into smoke free areas of premises and give rise to complaints

For all the above reasons it is advised that before any final decision is made on the type, location of a shelter you should seek advice by calling 01302 737572

For further information, please contact us: 

• email: health&safety@doncaster.gov.uk
• address: Doncaster Council, Civic Office, Waterdale, Doncaster, DN1 3BU
• tel: 01302 737548