One recent change that has raised some potential hurdles among operators is the transition to the permanent pavement licence regime in England under the Business & Planning Act 2020.
First introduced as a temporary pandemic measure, as of 31 March this year the pavement licence scheme became a permanent fixture.
With its permanence comes a series of adjustments and the transition to the new scheme is not going to be entirely seamless.
It is important for operators to be aware of the key practical implications that have arisen and how to prepare, as councils deliberate on their permanent pavement licence policies.
What's changed?
Historically, prior to the Business & Planning Act, the process of obtaining licences for external furniture on the public highway varied from council to council.
It was governed predominantly by the Highways Act 1980, but also by certain other, local legislation adopted by some of the Greater London councils.
Under the old regime, there was no uniform approach to the form of applications, the methods of consultation or the fees charged by councils.
The pavement licence scheme was introduced to streamline the process for operators to obtain permission for seating areas on the public highway and, to a large extent, we were all happy to do away with the old myriad of local regulations.
Such was the success of the pavement licence scheme that it was made permanent.
The permanent scheme makes some tweaks that we have covered previously in these pages, such as an increase to the cap on application fees charged by councils (now £500 for new applications and £350 for renewals), the consultation and determination periods being extended to 14 days each and the maximum potential length of licences being increased to 24 months.
Council processing costs v enforcement
Licensing committees across the country are in the process of ratifying the permanent scheme, through which they will each set their policies confirming the fees they will charge (subject to the maximum caps) and the length of the pavement licences they will grant.
Interestingly, the Government is encouraging authorities to grant pavement licences for the maximum possible term of 24 months as standard.
Although, in practice, we suspect most will continue to issue licences for the same period as they have been doing previously, with most authorities issuing licences for 12 months.
However, due to the processing costs of these applications, it may make sense for councils to grant pavement licences for the maximum term in line with the Government guidance.
Even with the new fee caps, we know that for most councils, the application fees do not cover the time officers actually spend dealing with them.
So, if a council is effectively losing money and officer time each time they process an application, then from an economic perspective, it would make sense to grant pavement licences for the maximum term, thereby reducing the number of renewal applications to be processed.
On the other hand, from an enforcement perspective we know councils like to keep pavement licences under regular review. Licensing committees will no doubt argue that granting shorter pavement licence periods is an effective method of keeping licences in check, ensuring regular intervals to reconsider the permissions in light of any recent complaints or issues.
Council licensing committees will be weighing up these considerations as they decide on their policies for the permanent regime. One hopes they come to a pragmatic and commercial decision for the benefit of avoiding over-regulation and reducing costs for both operators and local authorities.
Navigating existing licences
For businesses with existing licences granted under previous regimes, the transition to the new system raises some uncertainties.
Highways Act licences, once the norm, are now being phased out in favour of pavement licences. Existing Highways Act licences remain valid until their expiry date, however, it is no longer possible for councils to grant permissions under the Highways Act for external furniture that can be granted under the Business & Planning Act.
As such, when these Highways Act licences come up for renewal, operators will be required to apply for the same permissions under a pavement licence. This shift requires careful navigation to ensure existing permissions are not lost in transition.
The guidance from Government emphasises treating such applications as renewals, and councils are encouraged to be pragmatic and proportionate in their approach.
However, as always, the devil may be in the details as councils interpret and implement these guidelines against their own pavement licence policies.
Some historical Highways Act licences may contradict or go beyond what would be granted under a council’s updated policy for pavement licences, for example, where they do not leave space for two metres of clear footway, or if the seating area is not immediately adjacent to the premises.
In such cases, there is a concern that councils could try to reduce or refuse the permissions when they re-examine it under the modern pavement licence policy.
We know how important additional external covers can be to operators, particularly during the warmer months, so operators should be prepared to fight for any historical licensed seating under old regimes to be renewed and maintained under the new scheme.
Unique challenges for the capital
Just to complicate matters a little more, London adds its own flavour to the mix. Questions linger in the case of any licences granted under separate local legislation in London.
Unlike Highways Act, licences where the statute is clear that they cannot continue, it is silent in regards to the local legislation in London.
This means there is a chance certain London councils will continue granting permissions under old regimes. Early signs indicate that most, if not all, London councils will move all external tables and chairs licences towards uniformity under the pavement licence scheme, but only time will tell as the old licences come up for renewal.
If a London council does decide to migrate all of the old licences to pavement licences, then again, operators should be wary of ensuring that they maintain what has historically been granted as with the Highways Act licences.
Conclusion
In essence, England's permanent pavement licence scheme promises at least some clarity and consistency for businesses managing their outdoor seating. Yet, challenges remain, particularly for those with existing licences under old regimes.
As the transition unfolds, vigilance and advocacy will be crucial to ensure a smooth ride for businesses navigating the new normal of outdoor dining. So, for those with a stake in the pavement, it's time to keep a watchful eye as renewal season approaches.
- David Inzani is a partner at Poppleston Allen
