Red Lion or red tape?

There is a little bit of optimism in the air for an industry which has struggled for its very survival. In passing the Business and Planning Act 2020 (the Act) and promising to extend it to 30 ​September 2022, the Government has recognised those difficulties – I will not comment here on the fairness of the Government’s approach generally – with this legislation is designed to assist and to encourage pub customers to use the highway.

Additionally, there has been a clear direction from the Government in the form of Robert Jenrick MP’s letter encouraging this external use as far as possible – particularly relevant since step two of the Government’s roadmap, permitting outdoor pub trading, was introduced on 12 ​April.

Have Local Authorities appreciated the problems, the benefits of the industry to its local area and embraced the new legislation?

The answer, as has been the case since 2005 when Local Authorities in England and Wales took over the licensing system is, both “yes and no”.

Pandemic problems

It is not just about external areas because one of the other consequences of the problems of the pandemic, and indeed pre-pandemic, is insolvency and the automatic lapsing of a number of licences. 

My firm has applied to “re-license” on the same terms instead of what would have been a simple transfer without any opportunity to interfere with the licence being transferred.

In most local authorities, the licensing and police licensing departments will not see this as simply a replacement licence on the same terms but will look to impose further restriction, possibly more “up-to-date” conditions such as CCTV, and in at least one area a more restrictive licence because the premises are in a saturation zone. 

The fact that the application is only simply to replace something that had previously been there and will lead to a closed unit having investment and being open again with benefits for the area, jobs etc, is not appreciated. It is very frustrating.

'Mixed bag'

This attitude is also reflected in the approach to tables and chairs applications, the so-called “fast track”. 

The problem with this procedure is that the Act clearly envisages a seven-day consultation and a quick route to external use, but that then can hit the local authority bureaucratic buffers.

Again, there is a mixed bag; some councils have made this a very simple process and indeed one has waived the fee in an effort to assist businesses, but some insist on introducing (as the Act allows) consent – not just a public consultation – of local frontagers and comments from highways and public safety.

You will forgive me, but if you ask a local frontager whether having a group of customers sitting at tables and chairs outside if that is a good idea the probable answer is “no”. If you ask a local authority public safety officer whether there are any risks in having customers outside in the middle of a pandemic the answer is probably “yes”.

There is then the sound of the fast-track application creaking to a halt as the bureaucratic treacle envelops and prevents its progress.

This I am afraid is what local authorities are like; they are mixed. The reasons appear to be partly cultural, partly the attitude and quality of the officers and the funding and number of them and their leadership.

This was reflected in early enforcement when outside trading was allowed after Monday 12 ​April; there were several areas where local authority officers visited, wrongly interpreted the law in relation to off-sales and one occasion threatened to arrest the manager.

This particular local authority is what we call “difficult”. In other words, we have a label for local authorities, and this reflects the fact that generally the culture of either wishing to help or frankly not wishing to is reflected throughout its Licensing, Environmental Health, Public Safety and Highways departments.

This is incredibly frustrating for the industry which has to deal with such disparate bodies and with differing attitudes and does unfortunately lead to individual examples of unfairness.

Benefit of the doubt

It is difficult to know where to take it as another symptom of local authority decision making is an inability to see matters “in the round”. 

In other words, the question is not whether a pub should have tables and chairs in a certain position because it would appear to benefit the pub, its customers and the area generally, but to consult and to see what difficulties may possibly arise. 

It would be much more refreshing if the pub was given the benefit of the doubt and allowed to operate in this way and if there are any issues then the licence could be removed.

I think that most multi-site operators in different local authority areas would agree with this; there are some councils who are motivated to assist, see the bigger picture and are pro-business, and there are some who are culturally incapable of decision making unless it is consultative, and rules based even if that will lead to an unfair outcome.

There is no-one with the authority to make a fair decision on all the evidence. If Highways say “no” the application will be refused, not that the Highways comment is considered as only part of the process.