Pavement Licensing Guidance

Version 5: July 2022

1. Introduction.

As the COVID-19 pandemic affected businesses across the economy the Government announced urgent relaxations to planning and licensing laws to help the hospitality industry recover from the coronavirus lockdown by removing some requirements and expediting others.

The Business and Planning Act 2020 has made temporary changes to planning procedures, alcohol licensing legislation and made it easier for premises serving food and drink to seat and serve customers outdoors.

The measures included in the Act modify provisions in the Licensing Act 2003 to;

provide automatic extensions to the terms of on-sales alcohol licences to allow for off-sales
introduced a temporary fast-track process for businesses to obtain permission, in the form of a "pavement licence", from Reigate & Banstead Borough Council (RBBC) for businesses offering food and drink. The licence will allow furniture such as tables and chairs on the pavement, outside their premises to enable them to maximise their capacity whilst adhering to social distancing guidelines.

The Government has recently announced that it intends to extend these measures until 30 September 2023.

2. Scope

2.1 Definition of pavement café.

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.

2.2 Eligible Businesses.

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, cafés, bars, restaurants, snack bars, coffee shops, and ice cream parlours.

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.

2.3 Eligible Locations.

Licences can only be granted in respect of highways listed in section 115A(1) Highways Act 1980. If you need to check whether the land you are seeking to use is highways land, contact Surrey County Council highways information team (Surrey County Council website). If you do not check this information and the land is not public highway, then any pavement licence applied for, or granted will be invalid, and the application fee will not be refunded.

In general these locations are footpaths restricted to pedestrians or are roads and places to which vehicle access is restricted or prohibited. They do not include highways maintained by Network Rail, Crown land, car parks, beer gardens, village greens etc.

2.4 Type of furniture permitted.

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 should be weatherproof, and capable of being easily cleaned. It should not be a permanent, fixed structure as it must be stored away at the end of each licensed day.

The Council would also expect the type of furniture to be 'in keeping' with the local area.

2.5 Planning Permission.

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.

2.6 Interaction with Part 7A of the Highways Act 1980.

Part 7A of the Highways Act 1980 already provides a mechanism for local authorities to grant businesses permission to place objects or structures on the highway for any of the following:

(i) for a purpose which will result in the production of income;

(ii) for the purpose of providing a centre for advice or information; or

(iii) for the purpose of advertising.

3. Application and Determination of Pavement Licences

3.1 Submission of the Application.

An application for a Pavement Licence must be made to the Council, and the following will be required to be submitted with the application:

an online Application Form which will require the fee of £100, to be paid by credit or debit card at the time of submission;
a plan showing the location of the premises shown by a red line, so the application site can be clearly identified;
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 plan must show the positions and number of the proposed tables and chairs, together with any other items that the applicant wishes to place on the highway. The plan shall include clear measurements of, for example, pathway width/length, building width and any other fixed item in the proposed area;
(if applicable) a risk assessment demonstrating how the applicant will manage the conflict between pedestrians using the footway, those using the tables and those queuing to access the premises;
the proposed days of the week on which, and the times of day between which, it is proposed to put furniture on the highway;
the proposed duration of the licence (for e.g. 3 months, 6 months etc);
photos or brochures showing the proposed type of furniture and information on potential siting of it within the area applied for along with details of any objects or markers to be used to donate the boundary;
(if applicable) reference of existing pavement licence currently under consideration by the local authority;
(if applicable) evidence of consent from neighbouring frontage(s) to use footway space outside their property;
evidence that the applicant has met the requirement to give notice of the application (for example photographs of the notice outside the premises and of the notice itself),
a copy of a current certificate of insurance that covers the activity for third party and public liability risks, to a minimum value of £10 million, and
any other evidence needed to demonstrate how the Council's local conditions, and any national conditions will be satisfied.

3.2 Fees.

The fee for applying for a licence is set locally but is capped at £100. Using established methodology, the Council has determined that the fee for applications will be £100.

Application fees must accompany the application in order for the application to be considered valid and for the consultation period to commence.

The fee is an 'application' fee for the processing of the application. The fee will not be refunded if the application is withdrawn, refused or if a licence is surrendered or revoked before expiration.

3.3 Consultation.

Applications are consulted upon for 7 days, starting with the day after the day on which a valid application was made to the Council.

The Council will publish a list of applications under consideration.

The Council is required by law to consult with the Highways Authority. In addition, to ensure that there are no detrimental effects from the application the Council will also consult with:

RBBC Environmental Health Services (including Environmental Control and Food and Safety Teams)
Planning
Surrey Fire & Rescue Service
Surrey Police

Members of the public and those listed above can contact within the consultation period the Council to make representations.

The Council must take into account representations received during the public consultation period and consider these when determining the application.

3.4 Site Notice.

An applicant for a pavement licence must, on the day the application is made, fix a notice of the application to the premises so that the notice is readily visible to, and can be read easily by, members of the public who are not on the premises. The notice must be constructed and secured so that it remains in place until the end of the public consultation period. Evidence of compliance with the site notice requirement must be supplied to the Council. The Council would also expect the applicant serves a copy of the site notice on immediate neighbours to make them aware of the application.

The Site Notice must:

state that the application has been made and the date on which it was made;
state the statutory provisions under which the application is made;
state the address of the premises and name of the business;
describe the proposed use of the furniture;
indicate that representations relating to the application may be made to the Council during the public consultation period and when that period comes to an end ie 7 days starting the day after the application is submitted to the authority).
state the Council's website where further details accompanying the application may be obtained during the consultation period; and
state the address to which representations should be sent during the consultation period;

A template Site Notice is shown as Appendix 1.

3.5 Site Assessment.

The following matters will be taken into account by the Council in considering the suitability of the proposed application:

public health and safety - for example, ensuring that users conform with latest guidance on social distancing 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, excessive noise 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, taking account of:
- 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 structures in place on the footway that already reduce access,
- the impact of access and egress to the premises
- the impact on any neighbouring premises
- the recommended minimum footway widths and distances required for access by mobility impaired and visually impaired people as set out in Section 3.1 of Inclusive Mobility (Gov.UK), and
- other users of the space, for example if there are high levels of pedestrian or cycle movements.

Applicants are strongly encouraged to talk to neighbouring businesses and occupiers prior to applying to the local authority, and take any issues around noise, and nuisance into consideration as part of the proposal.

3.6 Determination.

Once the application is submitted the Council has 14 days from the day after a valid application is made (excluding public holidays) to consult on and determine the application. This consists of 7 days for public consultation, and then 7 days to consider and determine the application after the consultation period has ended.

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,
impose conditions on any licence granted, or
refuse the application.

If the local authority does not determine the application within the 14-day period, the application will be deemed to have been granted subject to any published local or national conditions.

3.7 Approval of Applications.

RBBC supports the aims of the Business and Planning Act and wishes to help promote economic recovery and growth in its area and will therefore seek to grant applications for licences where possible. However this aim has to be balanced with the need to ensure the issuing of pavement licences does not put public health or safety at risk, does not lead to antisocial behaviour or public nuisance and ensures that the public, particularly those with disabilities such as sight impairment are unhampered when walking along streets. The Council will consider the criteria contained within these guidelines in determining applications and will treat each case on its merits.

On approving the application, the Council will issue a Pavement Café Licence to which conditions will automatically be attached. The licence will also contain specific terms such as days and hours when tables and chairs etc are permitted. A copy of the Council's standard conditions, are shown at Appendix 2. Additional conditions may be attached if the Council considers it appropriate in the circumstances of any particular case.

The Council will in general only permit Pavement licences between 09:00 and 23:00hrs. Applications outside these hours will be assessed in terms of the criteria detailed above. The Council however retains the right to specify permitted hours of trading that are less than those specified above in appropriate circumstances.

3.8 Licences Deemed to be Granted.

The Council aims to determine all applications within the determination period provided by the Act. That means that applications will be granted or refused within the period of 7 days beginning with the first day after the public consultation period. If the Council does not make a determination by the end of the determination period, section 3 (8) of the Act provides that the licence for which the application was made is deemed to be granted by the Council to the applicant.

3.9 Licence Duration.

If the Council determines an application before the end of the determination period (which is 7 days, beginning with the first day after the end of the public consultation period, excluding public holidays) the duration of the licence will be specified, subject to a minimum duration of 3 months.

The expectation from the Government is that local authorities will grant licences until 30 September 2023 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 until 30 September 2023.

3.10 Refusal of Applications.

If the site is deemed unsuitable for a Pavement licence, or if relevant representations are made which cannot be mitigated by imposing conditions, then the application may be refused. The Council may also refuse an application on other grounds including (but not limited to) where the granting of the licence would put at risk public health or safety, lead to antisocial behaviour or public nuisance or unreasonably hamper pedestrian's ability to move freely.

The Council will notify applicants of the reasons for refusal following determination. There is no statutory appeal process against a decision to refuse an application.

4. Conditions

The Council's standard conditions are set out at Appendix 2. In some cases, extra measures may be required. This will be determined when assessing any application, on a case by case basis. Where a local authority sets a local condition that covers the same matter as set out in national published conditions, then the locally set condition takes precedence over the national condition to the extent that it is inconsistent with it.

The national conditions relating to 'no-obstruction' and 'smoke-free seating' apply to all Licences. These conditions are shown in Appendix 3.

5. Enforcement

The Council aims to work closely with other enforcement authorities to enforce the provisions of all appropriate legislation. The case remains that an obstruction of the Highway is an offence under The Highways Act 1980 and will be dealt with by the Highways Authority or the Police. The Council will normally seek to rectify any issues arising as a consequence of the activities authorised by a pavement licence by engaging in informal discussions with the licence holder in the first instance.

Obtaining a Pavement Licence does not confer the holder immunity in regard to other legislation that may apply, e.g. Public Liability, Health & Safety at Work, Food Hygiene and Safety, Alcohol and Entertainment Licensing, and Social distancing controls, and applicants must ensure all such permissions, etc. are in place prior to operating.

If the Council considers that a licence-holder has breached any condition of the licence, the authority may:

revoke the licence, or
serve a notice on the licence-holder requiring the taking of such steps to remedy the breach as are specified in the notice within such time as is so specified.

If a licence-holder on whom an enforcement notice is served fails to comply with the notice, the Council may:

revoke the licence, or
take the steps itself and recover the costs of doing so from the licence holder.

The Council may revoke a licence in the following circumstances:

For breach of condition, (whether or not a remediation notice has been issued) or
Where:

There are risks to public health or safety - for example by encouraging users to breach government guidance on social distancing by placing tables and chairs too close together;
the highway is being obstructed (other than by anything permitted by the licence);
there is anti-social behaviour or public nuisance - for example, the use is increasing the amount of noise generated late at night or 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 Council 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. The Council will give reasons where these powers are used.

All enforcement activity will be undertaken in line with the principles set out in the Regulator's Code and the Council's Enforcement Policy.

6. Review Procedures

This guidance covers the Temporary Permissions for Pavement Licences under the Business and Planning Act 2020, which are scheduled to expire on 30 September 2022.

This guidance will be reviewed from time to time should changes occur in relevant legislation, the nature of Pavement licences generally, relevant social distancing measures or as a result of local considerations within RBBC.

Appendix 1

PUBLIC NOTICE

APPLICATION FOR A STREET PAVEMENT LICENCE

NOTICE IS HEREBY GIVEN THAT I/WE (Full names)

.........................................................................................................................

APPLIED ON (Date) ............................ TO REIGATE AND BANSTEAD BOROUGH COUNCIL

IN RESPECT OF THE PREMISES KNOWN AS:

..........................................................................................................................

FOR THE GRANT OF STREET PAVEMENT LICENCE, FOR THE FOLLOWING DAYS AND HOURS:

........................................................................................................................................................................................................................................................................................................................................................

Under the provisions of Business and Planning Act 2020 for the grant of a licence for a pavement café, any objections to this application must be sent in writing to: licensing@reigate-banstead.gov.uk no later than 7 days from the date of this application.

Note: This Notice must be displayed continuously on or near the premises to be licensed, where it can be read outside the building, for a period of 7 days from the date of the application.

Appendix 2

Standard Pavement Licence Conditions

A pavement licence does not imply an exclusive right to the area of public highway. The licence holder must be aware that RBBC and others (e.g. police, highways authority, statutory undertakers) will need access at various times (including emergencies) for maintenance, installation, special events, improvements etc or any other reasonable cause and it is a condition of this licence to provide such access. This may mean that the pavement licence will need to cease operating and/or be removed for a period of time. On these occasions there would be no compensation for loss of business.
The licence holder must hold Public Liability Insurance for the operation of the Pavement Licence. This must indemnify RBBC and Surrey County Council against all claims for injury, damage or loss to users of the public highway, arising from the use of the highway for the permitted purpose. The minimum level of indemnity must be £10 million in respect of any one incident. Evidence of the insurance must be provided to RBBC on request.
Tables and chairs must not be placed in position outside of the permitted times stated on the licence. When the licence is not in use, all tables and chairs and other furniture must be stored securely inside a premise away from the highway.
RBBC and/or Surrey County Council are empowered following the service of the appropriate statutory notice, to remove and store or dispose of furniture from the highway, at the cost of the licensee, if it is left there outside the permitted hours, or should any conditions of the licence be ignored. The Council will not be responsible for its safekeeping.
An unimpeded pedestrian route must always be maintained for people wishing to use the footway as per the National Licence Conditions.
The method of marking the boundary of the licensed area must be shown on the plan agreed between the licence holder and the Licensing Department. Whatever method is agreed a 2-metre clear walkway must be maintained for the use of pedestrians.
Emergency routes to the premises and adjacent buildings must not be obstructed by the Pavement Licence area.
Tables and chairs should be of an approved type and should be kept in a good state of repair. Furniture should be placed so as not to obstruct driver's sightlines, or road traffic signs. Placement of tables and chairs must allow pedestrians to use the footway parallel to the frontage of the premises. Care should be taken in the use of hanging baskets, awnings, protruding umbrellas etc. Alternative items may not be used without first seeking the written authority of the Council. Domestic gas patio heaters must not be used.
All potential obstructions must be removed from the public highway when the premises are closed to prevent a safety hazard to pedestrians, particularly during the hours of darkness.
The licence holder shall not use or allow to be used any music playing, music reproduction or sound amplification apparatus or any musical instruments, radio, or television receiving sets in the area of the highway covered by the licence.
The licence holder must not allow customers using the area to engage in anti-social or disorderly behaviour.
The operation of the area must not interfere with highway drainage arrangements.
During the hours of darkness, suitable and sufficient lighting must be provided to ensure safe use of the area. Any proposals to provide additional lighting to the licensed areas must be agreed with the Highway Authority.
All detritus (food and drink remnants, spillages, bottles, cans, wrappers etc) must be regularly removed from the footway surface to reduce hazards to pedestrians. The licence holder must make arrangements to regularly check for and remove litter and rubbish on pedestrian walkways, left by persons using the premises, for a distance of up to 10 metres from the boundary of the premises; ensure that any tables are cleared in an efficient manner during the hours of operation; and ensure the licensed area and surrounding highway is washed down at the completion of each day's usage using a method sufficient to remove food debris, grease and other spillages that may occur.
The licence holder is not permitted to affix any fixtures, or make excavations of any kind, to the surface of the highway without prior written approval.
The Licensee of a premise licensed under the Licensing Act 2003 or any modification or re-enactment thereof, must not allow the consumption of alcoholic liquor within the premises, outside the hours in force for the premises itself, or after 23:00 hrs, whichever is earlier.
The licence must be displayed on the premises and a copy of the layout plan agreed for the pavement licence must be made available on request by an authorised officer of the council
The licence holder must remove any tables, chairs and other furniture immediately at the end of the licence period or on revocation of the licence.
The licence holder must ensure that the area covered by the licence is monitored regularly by staff to ensure that the conditions above are being adhered to.

NOTES

These conditions should be read in conjunction with any mandatory national conditions concerning pavement licences, if the premises is licenced under the Licensing Act 2003, any relevant conditions attached to the premises licence, the latest government requirements concerning coronavirus and social distancing and any other relevant requirement of the Business and Planning Act 2020.

The licence holder is responsible for ensuring that the conditions of the licence and any other necessary permissions and regulations are adhered to. The Licence holder is to use the highway solely for the purpose of the licence in line with the provisions of this licence and for no other purpose whatsoever.

RBBC reserves the right to revoke this licence at any time if any of the above conditions are not complied with.

Appendix 3 National Conditions

The Secretary of State publishes these conditions in exercise of his powers under the Business and Planning Act 2020:

No-obstruction condition

Anything done by the licence holder pursuant to the licence, or any activity of other persons which is enabled by the licence must not have effect on the following activity listed in 3(6) of the Act namely:

(a) preventing traffic, other than vehicular traffic, from-

(I) entering the relevant highway at a place where such traffic could otherwise enter it (ignoring any pedestrian planning order or traffic order made in relation to the highway),

(ii) passing along the relevant highway, or

(iii) having normal access to premises adjoining the relevant highway,

(b) preventing any use of vehicles which is permitted by a pedestrian planning order or which is not prohibited by a traffic order,

(d) preventing the operator of an electronic communications code network having access to any electronic communications apparatus kept installed for the purposes of that network under, in, on or over the highway.

Clear routes of access along the highway must be maintained, taking into account the needs of disabled people, and the recommended minimum footway widths and distances required for access by mobility impaired and visually impaired people as set out in Section 3.1 of Inclusive Mobility (Gov.UK).

NOTE:

In most circumstances 1500 mm clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway.

Barriers required to separate furniture from the rest of the footway to allow the visually impaired to navigate around the furniture, should have 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. 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;
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;
Where possible furniture should be non-reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind, and thereby cause obstruction. The use of plastic patio furniture is discouraged, unless measures have been taken to ensure it is kept in place.

Smoke-free seating condition

Where the furniture to be put on the relevant highway consists of seating for use by persons for the purpose of consuming food or drink, the licence-holder must make reasonable provision for seating where smoking is not permitted.

NOTE: This means that where businesses provide for smokers, customers must 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.

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