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Shisha Smoking – a “hot topic”

The increasing popularity of shisha smoking in recent years has led local authorities to consider the various powers at their disposal to address the activity. For councils such as Westminster, the issue might be said to be “smoking hot” at the moment, with the authority looking at measures to control it and seemingly set on a course to reduce the harm it perceives it to cause.

Westminster issued its draft strategy, “Reducing the Harm of Shisha” in December 2015, citing a British Heart Foundation study from 2012, which showed a 210% increase in the number of premises in the UK offering shisha over the five years to then from 2007. Westminster says that its document is aimed at enabling people to make informed choices, to help businesses operate in a sustainable and responsible way, and to protect and enhance the amenity of every neighbourhood within its area of responsibility.

Consultation on the document closed on the 12 February this year, with the final strategy due to be published this spring: it has yet to appear, and enquiries of the council this week revealed that publication has now been deferred until spring 2017, for undisclosed reasons. Nevertheless, the council has confirmed that the issue of shisha smoking is still very much in its spotlight.

Responsibility for public health shifted to local authorities from 1 April 2013 and in addition they have powers under licensing, planning and environmental protection legislation at their disposal.

Westminster’s Draft Strategy proposes a three-pronged approach to the issue, as follows:

  • To educate people about the harm associated with shisha;
  • To regulate the activity; and
  • To lobby and form partnerships with other authorities and organisations such as the UK Healthy Cities Network and the Smokefree Alliance.

This approach, the council believes, will increase its effectiveness and ability to improve health outcomes and reduce nuisance.

Shisha involves smoking tobacco or herbal smoking products through a water pipe or hookah. Historically most prevalent in Africa, the Middle East and South East Asia, the activity has in recent years gained popularity in Europe and North America. Although traditionally carried on by members of the aforementioned ethnic groups, it has become popular with students and other young people from all ethnic backgrounds in recent years. It is instructive to note that shisha smoking is banned in public places in some countries such as Pakistan, with other Middle Eastern and Asian countries considering similar restrictions.

Shisha bars are found across the UK and, whilst they tend to be concentrated in cities such as Manchester and Birmingham and in other boroughs of London, such as Brent and Tower Hamlets, Westminster has seen an increase in the number of premises within its area offering shisha smoking, to a total of some 132 businesses at the end of 2015, with the number continuing to grow. In Westminster, the greatest concentration of such premises is around the Edgware Road Stress Area, although some are also found in the Queensway Stress Area, the West End Stress Area and elsewhere throughout the borough.

In the consultation paper, the council points to the fact that many of those who smoke shisha are unaware of its health impact, often wrongly believing that because the smoke is inhaled through a water pipe that is “safer” than traditional cigarette smoking. Studies looking at the long term health effects of shisha smoking are few and far between but, says the council, there is an increasing amount of evidence which suggests the health effects of shisha smoking are similar to, or worse than, those of cigarette smoke. It also points to health and safety issues arising from sharing water pipe mouth pieces and the fire risk associated with burning charcoal. In addition, the consultation paper highlights the possible amenity impacts of shisha smoking caused by noise and fumes and crime associated with the activity in terms of illicit tobacco and the evasion of excise duty.

The council is engaged in various smoking cessation campaigns, including some that target shisha smoking specifically, particularly amongst students. It is also in the course of drawing up guidance for businesses on the range of regulatory requirements associated with shisha smoking that need to be met, and on good practice to address health and amenity concerns.

Turning to the regulation of the activity, Westminster’s Consultation Paper highlights the wide range of powers that the council has at its disposal to control shisha smoking. These include:

  • Smokefree Legislation – The Health Act 2006 bans smoking in “substantially enclosed premises”, imposing various rules concerning the structures in which smoking can and cannot take place. Such matters are also governed by the Health and Safety At Work Act 1974.
  • Highways Law – The Council’s Highways Department has various powers to prevent shisha smoking obstructing the pavement and to require tables and chairs on the pavement to be licensed.
  • Environmental Protection Act 1990 – This gives the council various powers to curb statutory nuisance arising from fumes or noise. Such matters are also covered by the Anti-Social Behaviour Act 2003.
  • The Licensing Act 2003 – Although public health is not currently a licensing objective under this legislation, many in the sector expect it to be introduced as one shortly. This notwithstanding, there may nevertheless be conditions on premises licences as matters stand, which serve to limit to shisha smoking by, for example, preventing the use of outside areas after a certain time, or limiting the number of patrons allowed in outside areas. Should premises be found to be causing a public nuisance through shisha smoking activity, the council has powers to add such conditions to the licence upon a licence review.
  • Planning Legislation – The council has powers to tackle shisha smoking by alleging that, by offering it as an activity, premises have unlawfully changed planning use.

I am currently involved in a case in Westminster where the council, having attempted to use tables and chairs legislation to control shisha smoking at a set of premises, is now using the planning legislation and alleging that the shisha smoking at the premises amounts to an unlawful change of planning use from A3 (restaurant) to a mixed A3 and sui generis use. An application was made for a Certificate of Lawfulness on the basis that the shisha smoking at the premises is merely ancillary to the restaurant use. However, this was turned down flat by the authority, without any opportunity being given to lodge additional evidence. That decision has been duly appealed to the Planning Inspectorate, and a decision on that appeal is awaited early next year.

In what I believe to be a robust case, the arguments advanced included the following:

  • Shisha smoking is demonstrably a very small part of the business’s turnover (being approximately 5%);
  • There is no specifically designated shisha area at the premises;
  • The number of customers partaking of shisha is very low;
  • The number of menu items represented by the shisha activity at the premises is very low when compared to the number of food and drink items on offer;
  • The appearance and presentation of the premises remain very much those of a restaurant;
  • The shisha smoking at the premises isn’t leading to any intensification of their use; and
  • Shisha smoking at the premises has never given rise to any complaints, whether they be about noise, fumes or anything else.

It will be interesting to see what the outcome of this appeal will be and also what Westminster’s final shisha strategy document looks like when it finally comes out. I know that there is considerable concern amongst the business community in Westminster, with an increasing number of outlets offering shisha or wishing to do so. We will update you on the outcome of the appeal and on Westminster’s strategy in future editions of this newsletter. In the meantime, should you have any questions or concerns, please contact one of the team.