City of York Council pavement licence judicial review

In May 2022, a visually impaired wheelchair user (the claimant) found herself trapped on a footpath by pavement café furniture in York City Centre because whilst in a premises, furniture was placed outside preventing her from accessing the dropped kerbs.

The temporary pavement licence scheme brought in by the Government in 2020 due to the Coronavirus pandemic requires Councils to have regard to “the needs of disabled people” and “the recommended distances required for access by disabled people as set out in guidance issued by the Secretary of State”.

Generally speaking, a minimum pedestrian clearway of 1.5 metres is taken to be the norm but many Councils actually increase this to 1.8 metres or beyond where the footpath in question has a higher volume of pedestrian use.

The claimant brought a judicial review claim arguing that the implementation of the pavement licence scheme in York breached the Equality Act 2010 and Government Guidance on pavement licence schemes due to insufficient pedestrian clearways being required.

It has been reported that the claim has now been settled out of court for an undisclosed amount, with a Council spokesperson stating:

• "While we do not comment on individual cases, we are sorry that any individual has experienced difficulties with access issues. We recognise that we got it wrong, and are grateful that issues were brought to our attention. In working to meet our ambitions to deliver a more accessible city for all, we will continue to listen and learn from the lived experiences of disabled people."

Since the claim, the Council has changed its own policy dealing with such applications, with conditions being imposed on pavement licences as follows:

• “cafés on footways in streets with a level difference between the footway and the carriageway (streets with kerbs, for example Goodramgate) - a 1.5 metres corridor needs to remain free of obstructions for people to get past the pavement café area. This will be increased to 2 metres in high footfall areas (for example at busy junctions or near bus stops) - please note that this includes the base of the pavement café barriers, which need to be fully within the licensed area
• cafés on footway in streets with level access between the footway and the carriageway (streets without kerbs, for example Coney Street) - pavement cafés may be allowed over the whole footway width
• cafés on carriageway during pedestrianised hours - pavement cafés may be permitted on the carriageway on footstreets, during pedestrianised hours, but a 3 metres corridor will need to remain free of obstructions for emergency and authorised vehicles to get past
• A clear pathway, at least 1.5 metres wide, shall be maintained within the licensed area to allow entrance and exit from the licensed premises.
• Licence holders have a separate duty to make reasonable adjustments to enable access to their shops and services for people with reduced mobility or other protected characteristics under the Equality Act 2010 (see Annex B for additional information).”