Gone up in smoke

A central London café has failed to convince an inspector that shisha smoking at the front of the premises is lawful, the inspector distinguishing shisha smoking from cigarette smoking (DCS Number 200-006-729).

The council maintained that shisha smoking was not incidental or ancillary to the principal use as a sandwich bar/café, but had become a separate use within a composite planning use as a sandwich bar/café/shisha smoking establishment.

The inspector took the view that shisha smoking differs from other forms of tobacco smoking in a number of ways. He noted that it entails use of special equipment, principally shisha pipes and a charcoal brazier, and that this equipment is effectively hired by customers, and prepared for use by waiters. This differs from other forms of smoking, he reasoned, which do not require special equipment, and are generally portable for the smoker. He noted that the smoking of cigarettes and cigars can be carried on in any place where it is lawful, and there is no need to visit a particular place offering a special service. In addition, in contrast with going out for a meal and perhaps having a cigarette, shisha smoking appeared to him to be very much a social activity in itself, sometimes with pipes being shared, and with food often comprising little more than a snack.

In terms of revenue, it appeared to the inspector that shisha sales had come to be a predominant aspect of the business, and this was supported by the proportion of customers observed to be smoking shisha. The relatively limited number of food items on the menu, the minimal kitchen facilities, and the presence of staff carrying out quite specialised shisha duties gave further indication that shisha smoking had become an integral part of the establishment’s offer, quite over and above what might be considered as a normal ancillary or incidental use. As a matter of fact and degree he considered shisha smoking had become an identifiable separate element in the mixed use of the premises.

The inspector concluded that shisha smoking had become a distinctly separate activity from those that would be considered as normally ancillary or incidental to the lawful sandwich bar/café use of the appeal premises. As a result a new sui generis mixed use as a sandwich bar/café/shisha smoking establishment had been created. This was a material change of use for which no planning permission had been granted and he therefore refused to issue a certificate of lawfulness.

The following DCP section is relevant: 4.321

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