LICENSING AND REGULATORY COMMITTEE

23 September 2020

Title: Business and Planning Act 2020 – Pavement Licensing
Report of the Operational Director, Enforcement Services
Open Report	For Information
Wards Affected: All	Key Decision: No
Report Author: Theo Lamptey, Service Manager Public Protection, Regulatory Services	Contact Details: Tel: 020 8227 5655 E-mail: theo.lamptey@lbbd.gov.uk
Accountable Director: Andy Opie, Operational Director, Enforcement Services
Accountable Strategic Leadership Director: Fiona Taylor, Acting Deputy Chief Executive
Summary This report is intended to update the Committee on the new pavement licensing regime which came into effect on 22 July 2020 under the Business and Planning Act 2020.
Recommendation(s) The Committee is recommended to note the report.
Reason(s) The Business and Planning Act 2020 introduces pavement licenses, to allow licenced premises to make use of pavements and highways outside seating areas. The effect of this is to support and encourage additional seating space for businesses during the pandemic.

1.	Introduction and Background

1.1	The Business and Planning Act 2020 introduced a range of measures intended to support economic recovery from the disruption caused by the COVID-19 outbreak in the UK.

1.2	Among the various provisions, Sections 1-10 of the Act established a new licensing regime intended to make it easier for businesses that sell food and drink for consumption on or off the premises to seat and serve customers outdoors through the introduction of ‘pavement licences’.

1.3	The pavement licensing regime took immediate effect and is now operable. This report explains the provisions of the new pavement licensing regime.

Matter for consideration

2.	The Intention of the Act

2.1	A pavement licence authorises the operator of a business selling, or proposing to sell, food and drink to put removeable furniture such as counters, tables and chairs on the highway adjacent to that premises in order either to facilitate the sale of food and drink or for its customers to use.

2.2	This licensing regime is intended to provide a new, fast track procedure for the grant of pavement licences which will bypass other existing regulatory regimes, which would otherwise consider the use of the public highway, including:

The Highways Act;

Planning; and

Street trading.

2.3	However, pavement licences do not otherwise add to or alter any entitlements the premises may or may not have to serve food or beverages. Such entitlements will still be covered in the normal way by of:

The planning regime;

The (alcohol) licensing regime; and

Tenancy agreements.

2.4	This regulatory short cut is temporary and no pavement licence may extend beyond 30 September 2021, when the new regime comes to an end.

2.5	The pavement licensing regime will be administered in Barking and Dagenham by the licensing service.

3.	The licensing process

3.1	An application for a pavement licence may be made by any individual, partnership, limited company or other organisation, that uses, or proposes to use, a specific premise for, or including:

use as a public house, wine bar or other drinking establishment; and

other use for the sale of food or drink for consumption on or off the premises.

3.2	Applications must be made electronically, in such form as the local authority may specify, and must be accompanied by a set fee of £100.

The application must specify:

The premises;

The part of the highway to be used;

The purpose;

The days and times of the week it is proposed to put furniture on the highway;

The type of furniture;

The date the application is made;

Contain evidence of public liability insurance as the local authority may require; and

Contain other information as the local authority may require.

3.3	Following submission of a completed application, that application enters a 7-day public consultation period. The application is advertised by way of a public notice exhibited together with a plan at the premises subject of the application in a position where it can be easily read from the outside. The application is also published on the Council website. During the consultation period the licensing team consults with the police, highways authority and street trading. Ward councillors will be informed also.

3.4	Following the public consultation process the Council has a further 7 days to determine the application. If the application is not determined by day 15 of the process, then the application is deemed granted.

4.	Determination of the application

4.1	The local authority may grant or part grant or reject the application. Before making any decision, the local authority must take into account any representations received.

4.2	The Local authority can only grant if it considers that, taking into account any conditions to be attached, nothing done by the licence holder would have an effect on:

Preventing traffic, other than vehicular traffic, from entering the relevant highway at a place that traffic could normally enter it;

Passing along the relevant highway;

Having normal access to premises adjoining the highway;

Preventing the use of any vehicle permitted by a pedestrian planning order or traffic order;

Preventing statutory undertakers having access to any apparatus of theirs; and

Preventing an operator of an electronic communications code network accessing electronic communications apparatus.

4.3	The licensing authority may attach conditions to the grant of a licence. This authority has published a set of standard conditions which shall apply to the grant of all licences. A copy of the standard conditions is attached as Appendix A. These include conditions prohibiting ‘obstruction’ of the highway. Premises specific conditions may be added to the grant of any individual licence where appropriate.

There is no appeal against a decision to refuse the application.

5.	Enforcement

5.1	A local authority may revoke the licence if conditions of the licence are breached or serve notice requiring steps to remedy the breach. If the licence holder fails to comply with steps, then the local authority may revoke the licence or take the steps itself and recover the costs. The local authority may also revoke if:

some or all of the highway becomes unsuitable:

there is a risk to public health or safety: or

it recognises false or misleading information was given.

Extension of the provisions of the Licensing Act 2003 to facilitate pavement licence applications

5.2	In order to help broaden the potential for pavement licences, those premises licensed for alcohol on sales by way of the Licensing Act 2003 automatically now have off-sales attached to their licence. This enables drink purchased inside of the premises to be consumed in the area covered by the pavement licence outside of the premises.

6.	Options Appraisal

Impact of the new regime

6.1	The new legislation has been widely publicised within the hospitality and leisure trade. The Licensing team have helped raise awareness of the new provisions during discussions and correspondence with the licensed trades around covid-19 issues.

6.2	Despite this, and a number of enquiries, no applications have been received by the licensing team to date. The reasons for this are unclear. However, it is recognised that within the Borough that:

Many premises have limited public highway readily available to them to make use of under a pavement licence;

Many premises are already restricted in their use by other arrangements made to ensure their premises are Covid-secure (for example by external queueing arrangements prior to admission); and

The fact that the new regime came into being toward the end of the summer period and at a time when the weather has deteriorated from earlier months of the year may have discouraged operators from establishing outside facilities.

7.	Legal Implications

Implications completed by Deirdre Collins, Prosecution Barrister, Law and Governance

7.1	The Business and Planning Act 2020 introduces pavement licenses, to allow licenced premises to make use of pavements and highways outside seating areas. The effect of this is to support and encourage additional seating space for businesses during the pandemic.

7.2	Local Authorities may only refuse to grant a pavement licence if the proposed external seating area preventing traffic, other than vehicular traffic, from entering the relevant highway at a place that traffic could normally enter it, or prevents it passing along the relevant highway or from having normal access to premises adjoining the highway, preventing the use of any vehicle permitted by a pedestrian planning order or traffic order preventing statutory undertakers having access to any apparatus of theirs or preventing an operator of an electronic communications code network accessing electronic communications apparatus.

7.3	There is no appeal to an unsuccessful application.

7.4	No licence is anticipated to exist beyond September 2021.

Public Background Papers Used in the Preparation of the Report: None

List of appendices:

Appendix A – Copy of Standard Conditions