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1. Pavement licences
With the easing of lockdown restrictions, businesses and local authorities will need to take extra care when applying the pavement licence provisions to ensure national and local requirements are still being met. This includes the national conditions on smoke-free seating and the no-obstruction condition set out in the legislation, so that the highway remains accessible for all users. In addition, local authorities may wish to review any local conditions they have set in relation to access and safety, such as taking into account the impact increased crowds will have on security. This update also reflects the latest announcements relating to the Step 4 easements in the ‘COVID-19 Summer Response’.
1.1 What is a pavement licence?
A pavement licence is a licence granted by the local authority, or deemed to have been granted, which allows the licence-holder to place removable furniture over certain highways adjacent to the premises in relation to which the application was made, for certain purposes. This is a streamlined process to allow businesses to secure these licences quickly and, where they are deemed to have been granted, allow these licences to remain in place for a year but not beyond 30 September 2022. Where a pavement licence is granted, clear access routes on the highway will need to be maintained, taking into account the needs of all users, including disabled people.
1.2 What is the purpose of the Business and Planning Act process for pavement licences?
This process provides a streamlined and cheaper route for businesses such as cafes, restaurants and bars to secure a licence to place furniture on the highway. This will provide much needed income for business and protect as many hospitality jobs as possible.
1.3 How does the process for pavement licences work?
Pavement licences are otherwise granted primarily under Part 7A of the Highways Act 1980. The fee for the Highways Act process varies between local authorities, and there is a minimum 28 calendar day consultation period. The Business and Planning Act process provides a cheaper, easier and quicker way for businesses to obtain a licence. The fee for applying for a licence under the Business and Planning Act process is capped at £100 and the public consultation period is 5 working days (excluding public holidays), starting the day after the application is sent electronically to the authority.
If the local authority does not determine the application before the end of the determination period (which is 5 working days beginning with the first day after the end of the public consultation period, excluding public holidays), the licence is deemed to have been granted for a year (or, if shorter, until 30 September 2022) and the business can place the proposed furniture such as tables and chairs within the area set out in the application for the purpose or purposes proposed.
1.4 What businesses are eligible?
A 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. Businesses that are eligible include: public houses, cafes, bars, restaurants, snack bars, coffee shops, and ice cream parlours including where such uses form an ancillary aspect of another use, for example supermarkets, or entertainment venues which sell food and drink.
A licence permits the business to use furniture placed on the highway to sell or serve food or drink and/or allow it to be used by people for consumption of food or drink supplied from, or in connection with the use of the premises.
1.5 What furniture can be permitted by a licence?
The furniture which may be used is:
- counters or stalls for selling or serving food or drink;
- tables, counters or shelves on which food or drink can be placed;
- chairs, benches or other forms of seating; and
- umbrellas, barriers, heaters and other articles used in connection with the outdoor consumption of food or drink.
This furniture is required to be removable. Local authorities should be pragmatic when determining what is ‘removable’ but in principle this means it is not a permanent fixed structure, and is able to be moved easily, and stored away of an evening.
1.6 How much do applications cost?
Fees will be set locally, but are capped at a maximum of £100.
1.7 Are there any exclusions from this provision?
Licences can only be granted in respect of highways listed in section 115A(1) Highways Act 1980. Generally, these are footpaths restricted to pedestrians or are roads and places to which vehicle access is restricted or prohibited. Highways maintained by Network Rail or over the Crown land are exempt (so a licence cannot be granted).
1.8 Where does this new process apply?
This process applies to England only, including London and other areas where statutory regimes other than the regime in the Highways Act 1980 may be relevant to the grant of licences for street furniture.
1.9 Which authority can exercise pavement licence functions?
Under section 101 of the Local Government Act 1972, local authorities may arrange for the discharge of their functions by a committee, a sub-committee or an officer of the authority; or by any other local authority. This means that the executive of a local authority can delegate decisions to a committee, or officer of the authority. They may also wish to delegate the functions to another authority, for example to a County Council in a two-tier area.
1.10 How does this interact with other regulatory process, such as alcohol licensing?
It is important to note the grant of a pavement licence only permits the placing of furniture on the highway. A pavement licence does not negate the need to obtain approvals under other regulatory frameworks, such as the need for a licence to sell alcohol, and the need to comply with registration requirements for food businesses.
Temporary amendments to the Licensing Act 2003, through the Business and Planning Act 2020, allow the sale of alcohol by eligible holders of an on-sale licence for consumption off the premises without needing to apply for a variation of their licence. These temporary amendments apply if the premises had a licence that permitted sales of alcohol only for consumption on the premises on 22 July 2020, and the premises still retain that licence. More details can be found in the guidance accompanying the Business and Planning Act 2020. The duration of these temporary amendments have also been extended to 30 September 2022, but remain legally independent and separate from the pavement licences process.
Local authorities will also need to have regard to the Public Sector Equality Duty, under the Equality Act 2010 when devising and implementing the new licensing regime, which includes the need to have due regard to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act. Any businesses which apply for a pavement licence will also need to have regard to their own duties under the Equality Act 2010, such as their duty under s.29 of the Act not to discriminate in providing their service.
1.11 Does the applicant need planning permission as well as the licence?
No. Once a licence is granted, or deemed to be granted, the applicant will also benefit from deemed planning permission to use the land for anything done pursuant to the licence while the licence is valid.
2.1 How long are pavement licences valid for?
If a local authority determines an application before the end of the determination period (which is 5 working days, beginning with the first day after the end of the public consultation period, excluding public holidays) the authority can specify the duration of the licence. The Business and Planning Act 2020 specifies a statutory duration of 3 months. To help support local businesses, the expectation is that local authorities are pragmatic and will grant licences for 12 months (or until 30 September 2022 if shorter), unless there are good reasons for granting a licence for a shorter period such as plans for future changes in use of road space.
If a licence is ‘deemed’ granted because the authority does not make a decision on an application before the end of the determination period, then the licence will be valid for a year (or until 30 September 2022, if shorter). However, if, when implemented, a licence that has been deemed granted does not meet the conditions set out in the legislation or any local conditions, it can be revoked at any time on the grounds that it has breached the conditions.
A licence applied for before the Business and Planning 2020 (Pavement Licence) (Coronavirus) (Amendment) Regulations 2021 come into effect will not be valid beyond 30 September 2021. It therefore follows that no licence granted or deemed granted before the Business and Planning 2020 (Pavement Licence) (Coronavirus) (Amendment) Regulations 2021 come into effect can be valid beyond 30 September 2021, although the holder of such a licence may be able to apply for a further licence.
2.2 How will the Business and Planning Act 2020 (Pavement Licence) (Coronavirus) (Amendment) Regulations 2021 (the “2021 Regulations”) be implemented?
The Secretary of State has used the enabling power in the Business and Planning Act to extend the duration of the temporary pavement licence provisions for 12 months to 30 September 2022. This means that businesses can apply for a pavement licence to be in place within this extended period, up to 30 September 2022. This extension only applies to a pavement licence for which an application is made after the date on which the regulations come into effect.
These regulations do not automatically extend existing licences as these were granted on the basis that they would be in place for a specified period until 30 September 2021 or earlier. Businesses will need to apply for a new licence if they wish to have one in place during the extended period from 30 September 2021, so that the application can be determined on the basis of the 2021 Regulations. Local authorities are encouraged to take a pragmatic approach in applying the extended provisions, so that it is as convenient as possible for businesses to apply for a licence during the extended period.
2.3 How long will the Business and Planning Act process be in place?
This is a temporary measure to support businesses recover from the impacts of coronavirus restrictions. As the economic impacts of coronavirus will continue to be felt for some time, the 2021 Regulations mean that the Business and Planning Act process will remain in place until the end of September 2022 – giving certainty to businesses for the foreseeable future. It will also allow them enough time to apply for new licences under Part 7A of the Highways Act 1980 or equivalent provisions in any Local Act, if they want to extend their use of pavement furniture beyond the end of September 2022.
3.1 What information does an applicant need to provide?
An application to the local authority must:
- specify the premises and, the part of the relevant highway to which the application relates;
- specify the purpose (or purposes) for which the furniture will be used which must be to sell or serve food or drink, and/or for use by other people for the consumption of food or drink. In both cases the food or drink must be supplied from, or in connection with relevant use of the premises;
- specify the days of the week on which and the hours between which it is proposed to have furniture on the highway;
- describe the type of furniture to which the application relates, for example: tables, chairs, and/or stalls;
- specify the date on which the application is made;
- contain or be accompanied by such evidence of public liability insurance in respect of anything to be done pursuant to the licence as the authority may require; and
- contain or be accompanied by such other information or material as the local authority may require, for example how national and local conditions have been satisfied.
Local authorities may require applications to be made on a standard application form.
3.2 What other information may the local authority require?
Local authorities may require the applicant to provide other information or material to help them make a swift determination. This could be included in their standard application form. Publicising information requirements, and applicants ensuring that they have provided all relevant information to meet these requirements, is beneficial to all parties involved in the process and can speed up decision making. Any requirements imposed should be reasonable and should be kept as minimal as possible. Examples of the information a local authority might require include:
- a plan showing the location of the premises shown by a red line, so the application site can be clearly identified (some authorities may require this on an OS Base Map);
- a plan clearly showing the proposed area covered by the licence in relation to the highway, if not to scale, with measurements clearly shown;
- the proposed duration of the licence (for e.g. 3 months, 6 months, or a year);
- evidence of the right to occupy the premises e.g. the lease;
- contact details of the applicant;
- photos or brochures showing the proposed type of furniture and information on potential siting of it within the area applied;
- evidence that the applicant has met the requirement to give notice of the application (for example photograph);
- (if applicable) reference of existing pavement licence currently under consideration by the local authority
- any other evidence that shows how the furniture to be introduced is in accordance with national guidance regarding accessibility (such as use of good colour contrast, suitable physical barriers around chairs and tables and or other appropriate measures); and
- any other evidence needed to demonstrate how any local and national conditions will be satisfied, including the ‘no-obstruction’ national condition.
3.3 How should applications for the extended 12-month period be submitted?
To obtain a licence for any period after 30 September 2021, a new application will need to be made even if the premises already had a licence until 30 September 2021. An application will need to have been made after the date on which the Business and Planning Act 2020 (Pavement Licence) (Coronavirus) (Amendment) Regulations 2021 come into effect. Local authorities are encouraged to take a proportionate approach to information requirements for businesses seeking a new pavement licence where a licence has existed, so that this is as convenient as possible for businesses and members of the public. An example of a proportionate approach could be allowing applicants to re-use application material from their original application, updating where relevant to ensure they still comply with local and national conditions.
Alternatively, and for licences that are needed beyond 30 September 2022, it remains open for an applicant to apply for permission to place furniture on the highway under the Highways Act 1980, Part 7A.
3.4 What happens if an applicant has already made an application under the Highways Act 1980 regime?
It remains open for an applicant to apply for permission to place furniture on the highway under the Highways Act 1980. However, that applicant may opt to make a fresh application for a pavement licence under the Business and Planning Act process. In those circumstances the pending application will be deemed to have been withdrawn. If the fee for the pending application was paid the authority will not be permitted to charge a fee for the new application for a pavement licence.
4. National Conditions
The 2020 Act sets out two conditions which apply to pavement licences which are granted or deemed to be granted these are: a no-obstruction condition and a smoke-free seating condition. These apply only to licences granted under the Business and Planning Act 2020, not existing licences permitted under Part 7A of the Highways Act 1980, or other relevant legislation.
4.1 How can the local authority and applicant consider the needs of disabled people when considering whether the requirements of the no-obstruction condition are met?
The no-obstruction condition is a condition that the licence must not have the effects set out in section 3(6) of the 2020 Act. When determining whether furniture constitutes an unacceptable obstruction in light of the no-obstruction condition, the provisions require that local authorities consider the needs of disabled people. In order to do this, authorities should consider the following matters when setting conditions, determining applications (in the absence of local conditions), and when considering whether enforcement action is required:
- Section 3.1 of Inclusive Mobility sets out a range of recommended widths which would be required, depending on the needs of particular pavement users, but is clear that in most circumstances 1500mm clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway,
- any need for a barrier to separate furniture from the rest of the footway so that the visually impaired can navigate around the furniture, such as colour contrast and a tap rail for long cane users. In some cases, it may be appropriate to use one or more rigid, removable objects to demarcate the area to which the licence applies, for example wooden tubs of flowers. However, this will need to be balanced to ensure any barriers do not inhibit other street users, such as the mobility impaired, as such barriers may create a further obstacle in the highway;
- any conflict of street furniture with the principal lines of pedestrian movement particularly for disabled people, older people and those with mobility needs. The positioning of furniture should not discourage pedestrians from using the footway. The available route must be entirely clear and not pass through an area with tables and chairs;
- so that where possible furniture is non-reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind, and thereby cause obstruction – for example, the local authority could refuse the use of plastic patio furniture, unless measures have been taken to ensure it is kept in place.
Section 149 of the Equality Act 2010 places duties on local authorities, to have due regard to: the need to eliminate unlawful discrimination, advance equality of opportunity between people who share a protected characteristic and those who don’t, and foster or encourage good relations between people who share a protected characteristic and those who don’t.
4.2 What is reasonable provision for seating where smoking is not permitted?
The national smoke-free seating condition seeks to ensure customers have greater choice, so that both smokers and non-smokers are able to sit outside, in order to protect public health by reducing risks of COVID transmission.
It is important that businesses can cater to their customers’ preferences. The Business and Planning Act 2020 imposes a smoke-free seating condition in relation to licences where seating used for the purpose of consuming food or drink has been, (or is to be) placed on the relevant highway. The condition requires a licence-holder to make reasonable provision for seating where smoking is not permitted. This means that where businesses provide for smokers, customers will also have the option of sitting in a non-smoking area. Ways of meeting this condition could include:
- Clear ‘smoking’ and ‘non-smoking’ areas, with ‘no smoking’ signage displayed in designated ‘smoke-free’ zones in accordance with Smoke-free (signs) regulations 2012 which can be viewed here.
- No ash trays or similar receptacles to be provided or permitted to be left on furniture where smoke-free seating is identified.
- Licence holders should provide a minimum 2M distance between non-smoking and smoking areas, wherever possible.
Further, business must continue to have regard to smoke-free legislation under The Health Act 2006, and the subsequent Smoke-free (Premises and Enforcement) Regulations 2006.
Public Health England has published guidance for smokers and vapers during the COVID pandemic.
4.3 Where an authority has set a local condition covering the same matter as a national condition, which take precedence?
Where a local authority sets a local condition that covers the same matter as set out in national conditions, then the locally set condition would take precedence over the national condition where there is reasonable justification to do so.
5. Determining the application
5.1 What happens once the information is submitted to the local authority?
Once the information is submitted to the local authority the authority has 10 working days from the day after the application is made (excluding public holidays) to consult on, and determine the application. This consists of 5 working days for public consultation, and then 5 working days to consider and determine the application after the consultation.
If the local authority does not determine the application within the 10 working day period, the application will be deemed to have been granted subject to any local conditions published by the local authority before the application was submitted.
5.2 What will a local authority consider when deciding whether to grant a pavement licence?
The local authority will need to consider a number of factors, when determining whether to approve the application. These include whether local conditions might be needed to make it possible to approve an application which would otherwise be unacceptable.
The Secretary of State may specify conditions for pavement licences, in Regulations (although to date there has not been a need to do so). This is in addition to the statutory ‘no obstruction’ condition referred to in sections 5(4) and 3(6) of the Business and Planning Act 2020 Act and ‘smoke-free’ seating condition.
Authorities are encouraged to publish local conditions subject to which they propose to grant pavement licences so that applicants and those making representations are aware of them. When considering their powers in relation to local conditions they should bear in mind the requirements of the no-obstruction condition and the smoke-free seating condition. They should also take into account any national conditions which may be specified in the future in Regulations.
When setting local conditions and determining applications, issues authorities will also want to consider include:
- public health and safety including security – for example, ensuring that uses conform with any coronavirus measures in place, and any reasonable crowd management measures needed as a result of a licence being granted and businesses reopening;
- public amenity – will the proposed use create nuisance to neighbouring occupiers by generating anti-social behaviour and litter; and
- accessibility – taking a proportionate approach to considering the nature of the site in relation to which the application for a licence is made, its surroundings and its users, taking account of:
- considerations under the no-obstruction condition, in particular considering the needs of disabled people;
- any other temporary measures in place that may be relevant to the proposal, for example, the reallocation of road space. This could include pedestrianised streets and any subsequent reallocation of this space to vehicles;
- whether there are other permanent street furniture or fixed structures in place on the footway that already reduce access; and
- other users of the space, for example if there are high levels of pedestrian or cycle movements.
5.3 How can local authorities consider security?
When considering public health and safety, local authorities should seek to ensure a balanced consideration for security implications, particularly the risk to groups of people from interaction with hostile vehicles, and the creation of large crowds in new public spaces. The impact of several pavement licences in an area may result in larger, distributed, or dense crowds of people. Local authorities should factor this into the security planning process and ensure the overall security arrangements for an area are adapted as appropriate. Examples of appropriate measures could include increased CCTV surveillance, manned guarding, vehicle security barriers and ACT (Action Counters Terrorism) training for businesses. Find more information about ACT training.
Local authorities should consider consulting with Police Licensing Teams, Designing Out Crime Officers and Counter Terrorism Security Advisors for relevant advice.
Additional guidance is available for managing the most common security implications and how to protect crowds and queues of people. This includes information on suggested Counter Terrorism licence considerations, which local authorities are encouraged to consider when determining pavement licence applications.
5.4 Can local authorities impose conditions which are not published?
Yes. When they grant a licence, local authorities may impose reasonable conditions whether or not they are published upfront. There is an expectation these will be supported by a clear justification for the need of a condition, such as evidence raised during the consultation, which is in addition to any published local conditions. Conditions might, for example, limit the maximum number of chairs and tables, or type of furniture, time and days of operation with justification for this.
5.5 How can local authorities and applicants maintain outdoor spaces safely, following confirmation of the removal of social distancing measures?
From 19 July, social distancing guidance will no longer apply. This means that local authorities and businesses do not need to implement social distancing (2m or 1m+) and the public do not need to keep apart from people they don’t live with. However local authorities and businesses may wish to consider that some people may make a personal choice and limit their close contact with others. Businesses still have a legal duty to manage risks to those affected by their business. The way to do this is to carry out a health and safety risk assessment, including the risk of COVID-19, and to take reasonable steps to mitigate the risks you identify. Businesses should use the working safely guidance to consider the risk within their premises and decide which mitigations are appropriate to adopt. See more information on how people can stay safe and help prevent the spread of COVID-19.
5.6 What are the outcomes of an application?
If the local authority determines the application before the end of the determination period the local authority can:
- grant the licence in respect of any or all of the purposes specified in the application,
- grant the licence for some or all of the part of the highway specified in the application, and impose conditions, or
- refuse the application.
To the extent that conditions imposed on a licence by the local authority do not have the effects specified in the statutory conditions (see paragraph 4.1 and paragraph 4.2) the licence is granted subject to those requirements.
5.7 Is there a route to appeal a decision?
There is no statutory appeal process for these decisions, however, councils may wish to consider the scope for an internal review process, for example permitting appeals to their Licencing committee.
6.1 What steps should an applicant take to engage with their community?
The applicant is required to affix a notice to the premises, so it is easily visible and legible to the public on the day they submit the application to the local authority. They must ensure the notice remains in place for the public consultation period which is the period of 5 working days beginning with the day after the day the application is submitted to the authority. When counting ‘working days’ public holidays are not included. Applicants are encouraged to keep evidence of this. Applicants are encouraged to engage with any services operated in the vicinity for vulnerable customers, for example, care home or disability organisations nearby where individuals may be at particular risk.
6.2 What must a notice contain?
The notice must:
- be in the form which the local authority prescribes, if it prescribes one;
- state that the application has been made and the date on which it was made;
- indicate that representations relating to the application may be made to that local authority during the public consultation period and when that period comes to an end; and
- contain such other information or material as that local authority may require.
The applicant is encouraged to talk to neighbouring businesses and occupiers prior to applying to the local authority, and so take any issues around noise, and nuisance into consideration as part of the proposal.
6.3 What information may local authorities require to be displayed on the site notice?
The local authority may require that other information is included in the notice such as:
- the statutory provisions under which the application is made;
- description of the proposed use of the furniture;
- address of the premises and name of the business;
- website for the council where the application and any accompanying material can be viewed during the consultation period;
- address (which might be an email address) to which representations should be sent during the consultation period; and
- the end date of the consultation (5 working days starting the day after the application is submitted to the authority).
A template site notice local authorities may wish to adapt is contained in Annex A.
6.4 Who must local authorities consult?
The local authority must consult the highways authority, if they are not the highways authority; this is usually the County Council in a two-tier area. Transport for London is the highway authority for some roads in London. For security advice, local authorities should consult Police Licensing Teams, Designing Out Crime Officers or Counter Terrorism Security Advisors. The authority must also consult such other persons as the local authority considers appropriate.
6.5 How can members of the public make representations about the application?
Members of the public can contact the council to make representations. Local authorities must take into account representations received from members of the public during the public consultation period which is the period of 5 working days starting the day after the application is submitted (excluding public holidays). In order to promote accessibility to those unable to access printed notices, Local Authorities are encouraged to consider using digital methods of publicity. They should also consider the needs of those who may find it more difficult to access online publications, and where practicable should consider making all formats of consultation available at the same time.
6.6 How must local authorities publicise the application and seek representations from local communities and other stakeholders?
The local authority is required to publish the application and any information or material which the applicant has submitted with it to meet the requirements of the authority, in such a manner as it considers appropriate, for example, on their website or via an online portal.
The local authority is also required to publicise the fact that representations may be made during the public consultation period and when that period comes to an end. Local authorities might consider using digital methods of publicity, such as automatic notices, which members of the public can opt in to receive. In deciding what steps to take local authorities should consider the needs of those who may find it more difficult to access online publications.
When publishing applications and publicising the fact that representations can be made, authorities will need to have regard to their duties under the Equality Act 2010 and will need to meet the requirements in the Public Sector Bodies (Websites and Mobile Applications) (No 2) Accessibility Regulations 2018, and therefore ensure that these are made accessible.
7.1 In what circumstances can the local authority enforce or revoke a licence?
If a condition imposed on a licence (either by the local authority) or nationally is breached, the local authority will be able to issue a notice requiring the breach to be remedied. If the licence-holder fails to do so, the local authority may itself take steps to remedy the breach and can take action to cover any costs of so doing.
The authority may revoke a licence in the following circumstances:
For breach of condition, (whether or not a remediation notice has been issued) or
- there are risks to public health or safety – for example where it comes to light that there are significant security risks which have not been sufficiently considered, or addressed in a proportionate fashion (this should be reassessed as necessary, particularly in the event of changes to the terrorism threat level);
- this use of the highway is causing an unacceptable obstruction, breaching the non-obstruction condition – for example, the arrangement of street furniture prevents disabled people, older people or wheelchair users to pass along the highway or have normal access to the premises along side the highway.
- the use is causing anti-social behaviour or public nuisance – for example, the use is increasing the amount of noise generated late at night and litter is not being cleaned up;
- it comes to light that the applicant provided false or misleading statements in their application – for example they are operating a stall selling hot food and had applied for tables and chairs on which drinks could be consumed; or
- the applicant did not comply with the requirement to affix the notice to notify the public for the relevant period.
The local authority may also revoke the licence where all or any part of the area of the relevant highway to which the licence relates has become unsuitable for any purpose for which the licence was granted or deemed to be granted. For example, the licensed area (or road adjacent) is no longer to be pedestrianised. It is good practice for local authorities to give reasons where these powers are used.