England goes al fresco: guidance for operators on the Pavement Licence and off-sales relaxation

A new Pavement Licence was born this week, which will make it easier for all operators to obtain permission to put tables and chairs on the public highway by way of a very short form application to the council. The Business and Planning Bill 2020, which should become an Act of Parliament next week, has just revolutionised the longstanding laws on placing furniture on the public highway or pavement and swept away the requirement to apply for permission to make off-sales under the Licensing Act 2003.

Let’s look at these two dramatic changes.

Tables and Chairs and the Pavement Licence

Currently it is necessary to apply for three different permissions in respect of tables and chairs on the pavement. You need a planning permission which allows change of use from a highway to restaurant/tables and chairs use. Secondly, you need a Highways Act 1980 permit which effectively permits you to obstruct the pavement without enforcement action from the council. Thirdly, in London, you would need a street trading licence to allow you to provide services to customers on the highway. This does not even include the premises licence which may prevent you from selling outside the premises.

The new Bill dispenses with all these requirements.

At the stroke of a pen it does away with the necessity to apply for planning permission and a highways permit and on a close reading, it does not even seem to require you to have a premises licence under the Licensing Act 2003, although in the latter case you would not be able to sell alcohol.

This is not law until it passes in Parliament next week and I suspect it will take time for councils to set up their administrative procedures to cope with the likely thousands of applications which will be made in a very short space of time. The councils have had little time to prepare for this revolutionary change and currently there will be no forms, no agreed fees, no procedures and no policies, so it’s likely to be a frustrating start for operators who will just want to get moving!

However, the application is to be a very short form procedure with a notice displayed at the premises and a consultation period of 7 days. The authority is required to determine the application immediately afterwards and having taken into account any representations made to it. If it fails to make a decision, then the application will be deemed granted in any event.

Local authorities may refuse the application on the basis of obstruction to traffic.

The licences once granted will be for a limited duration set down by the licensing authority, not less than three months but none to go beyond 30 September 2021. This is very much a temporary permission to get operators though a very difficult period following re-opening.

It will be open, as now, for the licensing authority to attach any conditions it sees fit to any licence granted. Licences can be revoked for non-compliance with conditions.

The system is not up and running yet but operators can save time by preparing now. This is what will be needed as a minimum requirement:

1. Detailed plans of the external areas showing dimensions;
2. Specification of the days of the week and times you will have the furniture on the street;
3. Description of the furniture;
4. Details of your public liability insurance to cover activities on the street; and
5. Fee of up to £100.

There will be more requirements at each local authority as they develop their policies and we will keep you posted.

Off-sales authorised until 30 September 2021

This is another huge step in the right direction to assist our struggling hospitality sector and could save thousands of jobs across England.

The effect of the Bill is that, from the date upon which it comes into force as an Act, those premises licences which do not currently have permission to sell alcohol off the premises, will be allowed to do so. The licence will be read as if there was such a permission.

Further, in one of the most common examples, where a premises licence permits off-sales but currently has a condition which prevents sales of alcohol in open vessels, then this is now to be permitted regardless of that condition.

We are informed that yet more guidance will be published shortly to assist us all in interpreting the new Act!

If the local authorities are expecting a tsunami of new applications on the pavement licence side, this may be offset a little by the fact that all the proposed applications to change premises licences to allow off-sales or to relax conditions will not now need to be made.

The pace of change is now frenetic so if you need measured guidance relating to your own premises, please contact Gareth Hughes.