Posted By The toecap It will be interesting to see when the first prosecution occurs

Posted By MT Certainly here in Scotland that wouldn't work, if there is only 5cm between them. Our LA has been rejecting shelters of this type unless there is a gap of at least 2 feet between the wall and the shelter.

Posted By Rob T Alternatively take them on. They can't just go about making it up as they go along. Too many people try to do that when they get a little power (look at some people in our profession!!!). You can't get done for breaching the "spirit of the law" - only the actual breaking of.

Posted By steve e ashton MT you write: "Our LA has been rejecting shelters of this type ..." On what basis / authority? Its certainly not in the regs... and there is no mention of approval or rejection either. Rob - hear hear! Has anyone heard of any court challenges on shelter design yet (In Ireland perhaps ? or Scotland / Wales) ? Steve

Posted By MT Indeed, I do write "Our LA has been rejecting shelters of this type ..." You write "On what basis / authority? Its certainly not in the regs... and there is no mention of approval or rejection either." The basis is because the shelter would not conform to the rules applicable to shelters i.e. less than 50% enclosed, therefore if it didn't comply, it would be "rejected" as a smoking shelter, would be deemed to be an enclosed space and as such would have to comply with the Regulations the same as other enclosed spaces. Also, some of these new shelters required building warrants and as such the plans are viewed by Environmental Health before warrants are issued, and any issues of non-compliance are raised at that point. Hope that helps explain. I'm afraid I don't know any more details than that.

Posted By Mark Eastbourne Heather and MT are correct. We had a smoking cessation officer in who explained that if a shelter was too near existing shelters then they may not comply. ATB Marko

Posted By Lukasz Thanks for responses. I am not gonna put shelters like that on my site but i was curious what is opinion of other H&S professionals and also how it looks from law side. Do I need also permission of LA if this shelter would be build by scaffolders and it would be just temporary?

Posted By CRT I have read the postings with interest, and it just shows how much confusion there appears to be on the subject. In my opinion there are two issues; planning permission for the shelter - obtained from the LA, without it, you could be made to remove it. Secondly the shelter, any smoking shelter has to conform to the 50% rule. the example described has a roof and two walls (full height i assume)with an open front. Even though there is a 5cm gap between the walls, the overall area is more than 50% enclosed so cannot be used as a smoking shelter, the LA cannot make you take it down because it is more than 50% enclosed but can take action if anyone smokes in it. other examples include; ballustrading, ballustrading with ivy growing up it, fast growing conifers, awnings etc etc etc. As others have stated, why not consult the LA at the outset and ask, surely its better than spending money on something you cannot use unless, of course you want to be the first one to test it in court. CRT

Posted By MT Thanks for that clarification CRT. That is exactly what I was trying to explain. Interestingly, the first court case for a person who refused to cease smoking within a non smoking premises, then assaulted the staff for asking him to leave the premises was in court in Scotland this week. Steve: "When did the LA Planning Dept (or the smoking cessation officer) assume the right to adjudge whether or not a premises was public and/or substantially enclosed?" The Planning Department isn't involved. It is the Building Control Department who will refer the plans to the Smoking Control Officer (a smoking cessation officer, I imagine, would be someone who advises people on how to quit smoking?) who can then advise the applicants that their proposed shelter would not conform. The applicants can then choose whether or not to take his advice and alter their plans to ensure compliance. Certainly in Scotland, Local Authorities did not "assume" the right to implement the legislation. Responsibility for implementation and Enforcement was given to LAs by the Scottish Executive. Hence, the SE provided funding to LAs to employ Smoking Control Officers who implement the legislation, deal with Fixed Penalty Notices and report to the Procurator Fiscal.

Posted By alan noble There is nothing in the legislation which states how far a shelter should be from another structure. See www.south-ayrshire.gov.u...talhealth/smokefree.asp. As the author I explain the 'sheltering effect' and that there is a need to have shelters at a distance from other structures. I chose a distance of 1.5m. It arose because building physics says that you can have eddies and dead zones with little or no circulating air. It also arose because architects wanted certainty in their design. Why 1.5m? It was selected because we needed a distance that could be argued in court was 'reasonable'. The concept of "What is reasonable" has precedent in Scots Law. So 1.5m, a distance a little more than you would need for a door, passagway or escape route seemed to satisfy the reasonableness test. It has been widely accepted by professionals such as architects which is evidence that it meets the test of being reasonable. What it has produced in Scotland are imaginative designs and some cracking structures which in a some cases have enhanced buildings.

Posted By geecee Speaking of Scots law there have been two instances lately where I have come across smoking as though smoke-free meant nothing. First one was a premises (cannot reveal source)where top clients are allowed to smoke simply because of the clout they have. Second one was a communal area in a bed-sit where smoking was the norm!At least they could argue it was a private dwelling - maybe. My view is that enforcement in some areas will need the premises controller to take action. Regards.

Posted By Jim Masson "Anyway, let's see if the Wicked Witch can get this law annulled. It would be the only good thing that a Blair has ever done." Have to fundamentally disagree with that one!!! While I'm not a member of the Blair fan club by any means, this was a very positive law, just a pity England lagged behind the Celts and tried to squirm out of it... What I would like added would be a ban on people standing smoking at entrances, defeats the purpose a bit if you have to wade through clouds of second-hand smoke to get INTO the nice frsh premises. Certainly in Scotland it is an 'enabling; legislation, and several LA's are already adding their little bits. One is getting ready to ban puffers in public parks, another is banning it near schools.

Posted By Rob T JH that does not mean in the open air!!! No-one can ban smoking in the open air. Jim they may try to ban smoking in parks but as soon as a case comes to court it will be laughed at. No-one owns the open air that we breath.

Posted By Heather Collins Rob I think you will find that "national authority" (note the Act does not give it capital letters) simply means, for example the Welsh National Assembly, the Scottish Parliament, etc. All it is saying is that there was no need for these bodies to wait for Westminster to make regulations - it could be done independently.

Posted By Lukasz JH In my opinion smoking should not be banned in places like parks. If NA want to ban places like that first step should be taken to reduce smoking in places which are more crowded and where exposure is higher, just think about crowdy streets in the city centre. I would like to see situation when you are sitting in the park, nobody is around you closer than 15 metres and some authority is coming to you and telling you to stop smoke because it is not H&S. Another problem is how you will stop people to smoke in houses where for example plumber is coming to do some small job? How you will check if somebody smoked there if "around 85% of secondhand smoke is invisible and oddourless"? Regard Lukasz

Posted By Crim BBC RADIO 2 @ 1PM. All you need to know about the smoking ban including the loopholes?