Propel Legal Briefing: Paving the way: the evolution of pavement licensing by Patrick Robson

First appearing for Propel Hospitality in their Legal Briefing on 10th April 2024.

Paving the way: the evolution of pavement licensing by Patrick Robson

External seating has always been of great benefit to licensed premises, especially for driving customer sales on those rare, but well-loved, hot summer weekends. Those sites that have large suntrap beer gardens are often jam-packed on the nicest days of the year. Beer gardens always bring back fond memories of those student days spent socialising with a pint in the heat (when maybe we should have been hitting the books).

However, not every establishment is lucky enough to have large beer gardens or patios available for outdoor seating. So, we see some operators turn to setting up seating on the public highway to expand their trading space. Sometimes, it’s not solely about having more space for customers to sit as they may have plenty of room inside – it’s also about creating a street presence, signalling to passers-by that they’re open for business.

Outside seating licences on public highways have been called many different things over the years, with councils across the country having very different approaches on how they regulate them. Some councils outright prohibited them or lacked a formal licensing system, resulting in either a ban on sidewalk seating or, alternatively, they just turned a blind eye towards it. Meanwhile, others had robust and strict application processes with lots of hoops to jump through – while requests elsewhere in the country would be processed on little more than an email.

Some councils allowed only tables and chairs, while others permitted additional features like parasols, heaters and menu boards. Fees for these licences also varied massively and often depended on factors such as the area’s size or the quantity of furniture. Cheaper applications would incur costs of under £100 for the year (some were even free), but the more expensive would be thousands of pounds, sometimes just for a short six-month licence. It was a complete Wild West of regulation and a bit of a postcode lottery on how much of a pain getting a pavement licence would be, how much it would set you back and what you would be allowed to do with that space.

The pandemic really reinforced the importance of outdoor hospitality spaces. When restrictions remained at their heaviest, customers were only welcome in an outdoor space with no more than six people at hospitality venues. This prompted the government to introduce a “streamlined” and “temporary” pavement licence framework under the Business & Planning Act 2020, which co-existed with the traditional process outlined in the Highways Act 1980 for obtaining pavement licences.

This temporary licence regime was originally due to expire several years ago but saw multiple extensions until 30 September 2024. In the interim, the government, under the Levelling Up & Regeneration Act 2023 (LURA 2023), confirmed it would make the “streamlined” and “temporary” system permanent. This move essentially phases out pavement licences in most circumstances, under the Highways Act 1980, for venues that sell food and drink in England.

As of 31 March 2024, the new permanent system under LURA 2023 has come into effect. The relevant legislation for these licences is still the Business & Planning Act 2020 – it has just been amended by LURA 2023 to establish what is expected to be the system for years to come.

The perks of the new permanent system are hard to overlook. Just as it did in its temporary form, it eliminates the hassle of securing planning permission before obtaining a pavement licence. It lays down a statutory framework for applications, promising a uniform and consistent approach nationwide. It also puts a cap on the maximum fees that councils can charge – a real relief for those facing hefty application fees that can cost thousands at a time.

While the new system generally marks a welcome improvement over the old regime, the transition from temporary to permanent isn’t completely beneficial for operators. Going forward, notable differences between the temporary and permanent systems as well as the key points in the guidance are as follows:

– The statutory fee caps have increased to £500 for new licences and £350 for renewals. While this is better than the historic fees that some councils were seen charging, it could still mean higher costs for many operators. Councils can charge less, but in today’s economic climate where some authorities are left struggling, we can agree that it is unlikely.

– The application processing times have doubled. Previously, there was a one-week consultation period followed by a one-week determination period. Now, it’s two weeks for each, meaning it can take up to 28 days for applicants to receive a determination.

– Councils will gain additional enforcement powers. They can issue notices to operators to remove unlawfully placed furniture. If the notice is ignored, the furniture will be removed and stored, with costs charged to the business. If costs aren’t paid within three months, the council can sell the furniture and keep the proceeds.

– Licences can now be granted for up to two years (and the previous three-month minimum is also removed). Government guidance advises councils to aim for two-year licences, unless there are valid reasons not to, such as anticipated road space changes. This change may offset rising application fees – but there is still some level of scepticism about whether most councils will actually grant two-year licences. Time will tell!

– Previously, the government guidance said that pavement licences required a minimum pedestrian clearway of 1.5 metres. However, the guidance has been updated and now dictates that a two-metre clearway is the minimum under normal circumstances. In cases where two metres is not feasible, a clearway of 1.5 metres is considered acceptable, as it allows for wheelchair users and walkers to pass each other. I hope councils will take on this amendment sensibly and proportionately when it comes time for applicants to renew their licences. The guidance also permits decisions to consider the combined effect of numerous pavement licences nearby and the potential impact on disabled pavement users. However, it’s uncertain how councils will assess this “cumulative impact” and establish a policy. Nonetheless, any decision made should be evidence-based. It does potentially make it important to ensure your new licence application or renewal is submitted in a particularly timely manner so that any neighbours with current pavement licences – or proposed pavement licences – don’t get in the way of you getting what you want and need for your business.

– The guidance retains its stance on authorising “removable furniture”. It states that “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 at night.” This poses a challenge for larger bench seating, which, while movable, typically remains outside venues overnight. Councils vary in their interpretations of whether these are allowed under these applications – which is something to bear in mind.

The pavement licensing system has evolved from a Wild West of regulation to a more structured set-up, albeit with its challenges. As it stands, the new system is here for better or worse, but with some adaptability, businesses can make the new system work for them, paving the way for smoother operations and happier patrons. As the weather turns a little finer and spring steps into motion, I’m sure the industry is excited to see more customers enjoying their outdoor spaces.
Patrick Robson is a partner at John Gaunt & Partners