The landlord of a bar in Northampton is hoping the Planning inspectorate sees 'common sense' after the borough council refused to allow the venue to keep its roof terrace open. until late.
Customers of Borjia in Castilian Street have been using the first-floor smoking area there until 2am at the weekends since the premises was opened in 2012.
But in late 2017, Northampton Borough Council informed the venue it, in fact, did not have planning permission to use the roof for that purpose.
The authority called on Borjia to submit a retrospective application for the terrace.
But when it did council planners refused the bid - stating the smoking area would have an adverse effect on the neighbouring residential properties if kept open until 2am.
David Ward, landlord of Borjia, says the terrace has had the opposite effect - and has received no complaints from residents in the seven years the terrace has been open.
"The terrace is completely enclosed and there are walls that are 7ft high - so there is no real scope for it affecting any of the local residents. It is completely policed by CCTV, security staff and bar staff."
By the letter of the law the use of the terrace is restricted until midnight.
But closing it then, Mr Ward believes, will mean smokers will have to go out onto the street.
"If you go onto the street, you have no control over what people do," added the landlord, who also founded DW Solicitors in Wellingborough Road.
The decision as to whether to allow the terrace to be used until 2am will now be taken by the Planning Inspectorate following an appeal by Borjia, with the borough council footing the bill for all costs if it loses.
Ironically, a late bar adjacent to the venue, Sazerac, was recently granted planning permission to build a roof terrace.
Neighbours of Borjia have also written in to support the bar's application.
The landlord of some rented properties in Castilian Court said: "I am of the view the use of the roof terrace is significantly less likely to cause any effect on my residential sub-tenants than customers at the Borjia bar being forced to smoke on the street."