BAR bosses are stunned after being told the smoking area they have been using for eight years is illegal.

Colchester Council has informed the Elysium Group, which is the company behind popular bar and nightclub Qube, in Crouch Street, their smoking area is too enclosed to be used legally.

Legislation brought in by the government after the smoking ban in 2007 says if there is a ceiling or roof on a structure and more than 50 per cent of the walls are present then it is classified as substantially enclosed and cannot be used as a smoking area.

But the managing director of Elysium Ash Afzalnia, who also owns top restaurant Mimosa and town centre bar and restaurant Hudson, believes Qube's smoking area is legal because three sides are open.

He said: "We have got a smoking area we have been using since Qube opened and all of a sudden the council are saying it is illegal.

"When we were building Qube we had a conversation with the council, they sent officers to come and have a look and they said it was a legal smoking area.

"The area was checked again and signed off in 2010 so I cannot understand why it has suddenly fallen short of being acceptable.

"Various officers have visited Qube over the years but it has never come up.

"It would be a lot less safe to have people waiting outside on the pavement while they smoke."

A council spokesman said the matter first came to light in January when officers attended on another matter.

He said: "Whilst officers were there, they noticed the outdoor area at the rear of the premises was covered by a roof.

"A letter was sent on 19 January regarding the dimensions of the ‘smoking area’, in order to ascertain if the area was substantially enclosed.

“Requests to provide this information went unanswered over a period of time and, as a consequence of this, the matter is now subject to an enforcement action for obstruction under the Health Act 2006, and listed to be heard at Colchester Magistrates' Court on July 12.

“On June 9 officers once again visited the premises to take measurements, and advised Qube’s duty manager that the area was substantially enclosed due to its location being close to perimeter walls.

"A formal letter was sent to Elysium Leisure the next day, on June 10 informing it of this decision."