Amidst continuing uncertainty on how long some form of social distancing measures will be in place, the Government have sought to ease strain on the hospitality sector by introducing proposals that would make it easier for pubs, bars and restaurants to set-up seating areas outside their premises.
The proposed legislation would simplify the process by which businesses are granted permission to have chairs and tables outside their premises and the Government have published draft guidance which outlines the mechanics of the streamlined process.
Pavement licences are granted by local authorities, primarily under Part 7A of the Highways Act 1980 and allow the licence-holder to place removable furniture over certain highways adjacent to the premises. Any business which uses (or proposes to use) premises for the sale of food or drink for consumption (on or off the premises) can apply for a licence, this includes (but is not limited to) the following: public houses, cafes, bars, restaurants, snack bars, coffee shops, and ice cream parlours.
Typically, a business would require both a specific pavement licence and planning permission for a change of use of the highway to allow for the placement of furniture outside its premises. These permissions are distinct and individually necessary.
The New Application Process
The new streamlined regime proposed by the Government, would mean that once a licence is granted, or deemed granted, the applicant will also benefit from deemed planning permission to use the land in accordance with the terms of the issued pavement licence.
Where application fees previously varied between local authorities, the Government will now cap the application fee at £100.00.
The new process will also see decisions over the granting of licenses being made significantly quicker. Where local authorities previously had 28 days to provide a determination, the authority now has a total of 10 working days (from the day following submission) to consult on, and determine the application. This consists of 5 working days for public consultation, and 5 working days to consider and determine the application. If the local authority does not determine the application before the end of this period the license will have been ‘deemed’ granted for the period of 1 year.
The expectation is that local authorities will grant licences for 12 months or more unless there are good reasons for granting a licence for a shorter period, such as plans for future changes in use of road space. No licences, whether granted or deemed, will be valid beyond 30 September 2021.
Making an Application
Applications may be made to the local council in person, by post or through their website, with many local authorities providing a standard application form. Each applicant must provide detailed information regarding the nature of the business premises and the proposed use of outdoor space and must supply relevant supporting documentation including a site plan and a public liability insurance policy. The applicant is further required to affix a notice to the premises on the day they submit the application to the local authority for a period of 5 days (the consultation period). This notice must be easily visible and legible to the public and must remain in place for the public during the consultation period.
Local authorities will consider a number of factors when determining whether to approve any given application. Both the Secretary of State and individual local authorities may (and are encouraged to) publish conditions for pavement licences. Such guidance should be checked prior to the submission of an application, but decision-making may be founded on unpublished material. The following factors will be under specific consideration:
- Public health and safety
- Public amenity
Exclusions & Time Limitation
This process applies to England only and licences can only be granted in respect of highways as defined by the Highways Act 1980. Generally, these are footpaths restricted to pedestrians or roads and places where vehicle access is restricted or prohibited. As this is a temporary measure to support businesses affected by the COVID-19 pandemic the Government have stated that the new process will only remain in place until the end of September 2021.
Finally, the grant of a pavement licence only permits the placing of furniture on the highway. The Guidance is clear that other regulatory frameworks, such as the need for alcohol licenses and the need to comply with registration requirements for food businesses, will still apply. Nonetheless, plans to allow businesses to sell alcohol for consumption off-premises without the need to vary the existing licence also form part of the Government’s support package in response to the COVID-19 pandemic.