Robin Watson put up the structure – which planners say is a marquee – at the back of the Shoulder of Mutton pub in York when the smoking ban came into force last year.

It has no walls, but council planners say that because the poles are screwed to pieces of concrete to stop it blowing away it needs planning permission.

The structure has been a hit with smokers at the pub in Heworth Green, although Mr Watson said trade has still dropped since the introduction of the smoking ban last July.

"We put the screws down one side to hold it down so it won't blow away but the council were claiming it was a permanent structure and said we had to take it down," he said.

"It just seems whatever we do we have somebody complaining about something.

"There has been a drop in trade but this is managing to keep us going. They haven't given us a reduction in council rates because of the smoking ban so I don't see why I need this."

Now York city planners have told Mr Walton he can either apply for planning permission or take it down.

They claim the fact it is "physically attached to the ground" and has been there for around a year means planning permission is needed, and he has been warned that breaching an enforcement notice would leave him liable to a £20,000 fine.

His case has been taken up by Yorkshire's Ukip Euro MP Godfrey Bloom, who said the demand was "absurd".

"Whatever happened to the British sense of compromise?" he said. "They could easily unscrew it from the concrete blocks but then what happens if it blows away – it would be health and safety.

"One might ask if there's a conspiracy of the British government to close the British pub."

Lee Le Clercq, northern regional secretary of the British Beer and Pub Association, said: "On the face of it this does seem to be an over the top request by the council which clearly presents yet another hurdle for another hard-pushed publican.

"It really is no wonder we are losing 27 pubs a week in this country."

Chairman of the Federation of Licensed Victuallers Associations, Tony Payne, said he thought there was little Mr Watson could do. "I really do sympathise but unfortunately the legislation is there and it looks like he will just have to apply for the planning permission.

"There is absolutely no doubt that landlords are facing very tough times indeed and closing all the time since the smoking ban came into force."

A City of York Council spokeswoman said: "The structure requires planning permission because it is fixed to the ground.

"The council's planning enforcement team has written to the owner of the property asking them to take the structure down or apply for planning permission."