Asian Restaurateur — Spring 2017

SHISHA PIPES

SPRING 2017

SHISHA COULD

BE THE PERFECT

ADDITION TO

YOUR BUSINESS

PROFITS AND PITFALLS BY RICHARD WILLIAMS

AND SIMON PLOWMAN (JOELSON)

t’s amazing how the growth of shisha smoking
has grown around the UK, so that it’s now
a lucrative “add on” for bar and restaurant
operators. But how do you go about introducing
shisha into your retail mix and what are the
pitfalls of doing so?

Richard Williams (licensing lawyer) and Simon
Plowman (planning consultant) at Joelson in London,
set out the process and potential pitfalls to avoid.

RIGHT TO OCCUPY
It goes without saying that you will need to use an
outside space to lawfully permit shisha smoking. So
if you have an external area, is it part of your demise
i.e. is it included within your freehold or leasehold
title? It’s likely that you’re already using this area for
outside drinking and smoking and possibly you have
tables and chairs on it. But you may want to check
the deeds. Are you legally entitled to use the area?

HIGHWAYS
It’s possible that the area you want to use has been
adopted by the local authority as part of the highway.
Land can be adopted as a highway even if it is
privately owned, as the Council will adopt just the
surface of the road or pavement and maintain it at
public expense. In certain areas, such as in London,
it is commonly assumed that pavement light areas
(above the cellar) are private land and not highway.
However, this is not always conclusive and caselaw
exists which states that these areas can be adopted
highway.

If the local authority has adopted the land as
highway, then legally you will need to get its

permission to place tables and chairs on the land and

you guessed it, a fee is usually payable to obtain that

consent. In some Council areas, this fee can run to

many thousands of pounds per annum. If you need to

obtain a highways consent or street trading licence,

this approval normally needs to be renewed every

year, when the annual fee is also payable.

PLANNING PERMISSION

Some Councils take the view that use of adopted

highway (and even private land) represents a “change

of use” under planning legislation. It’s possible to

argue against this view, particularly where the tables

and chairs are not permanent fixtures, as they will

usually be taken in every evening. Tables and chairs

outside on privately owned land are also likely to

be ancillary to an existing A3 or A4 planning use.

However, there is no definitive view in legislation, so

be prepared to have to submit a planning application

to authorise use of an external area.

Certain Councils are now asking shisha operators to

apply for specific planning consent for shisha use,

which they say is a “sui generis” planning use. You

may want to take advice from a

planning specialist about this, as

you may end up tying yourself

up in knots with planning and

highways applications if you do

what the Council ask you to.

Often shisha activities are

late night, outside normal

business hours, Becareful do

your homework many planning

consents have conditions which

state that, for example “the

Get In Touch!

Richard Williams (Solicitor)

& Simon Plowman (Planning

Consultant) at Joelson

020 7580 5721

http://www.joelsonlaw.com

[email protected]

[email protected]

This article does

not constitute legal

advice. Please

consult a specialist

about your specific

situation for advice.

This article refers

to legislation

applicable in

England and Wales

only.