Challenges around highway use 'frustrating and unnecessary'

The fact that there are such challenges is both frustrating and unnecessary and the background to the current situation goes all the way back to 2020 and those terrible pandemic times. 

The then Government with both a view to promote public safety (external activity was encouraged) and to assist the somewhat battered industry introduced legislation which was called the Business and Planning Act 2020.

It was very much welcomed as a boost and recognition that the hospitality industry, which had suffered severe sanction both in closing and in restrictive trading regulations, should have an easier route to have tables and chairs and, therefore, customers on the highway.

Many local authorities embraced this and loading bays, streets and roads were closed to enable unprecedented customer use seated with tables enjoying food and drink.

The advantage to this legislation was that it provided a simpler, quicker and cheaper process than the existing Highways Act 1980 (and other London Local Acts) and did not need planning permission which some local authorities also required for structures on the highway.

Transitional legislation

There then followed something of a “phony war” where the then Government kept on extending this, promised to make it permanent and finally did on 31^st​ March this year.

You would think that in doing so this left in place a permanent version of the quicker, easier and cheaper process.

However, the Conservative Government did not undertake any consultation process nor introduce any transitional legislation or guidance, leaving the local authorities as somewhat taken by surprise, together with the industry.

Unfortunately, this then left a mish mash of both the existing legislation and the new, with different rules and regulations applying. 

The guidance issued with the Levelling Up and Regeneration Act 2023 (which made the Business and Planning Act permanent, subject to a couple of changes) made it clear that local authorities should regard new applications to replace the former legislation as being effective “renewals”, but unfortunately in practice this has not been embraced.

Indeed, the much maligned Highways Act 1980 in many areas effectively provided an easy renewal process made to the local authority without detailed examination of the plans or accompanying documents.

Bureaucratic culture

The introduction of the new legislation should mean, as the Guidance indicates, new applications should maintain what is already there but many local authorities (not all) have seen the new legislation as an opportunity to impose more stringent requirements in relation to plans, more limited hours and conditions, even to the extent of preventing customers from standing in the area which has the benefit of the Pavement Permit.

The challenge therefore for the industry has been to seek to apply for new permits which are not being treated as a renewal of the old, but a greater level of bureaucratic intervention has resulted.

This is even to the extent that previous renewals under the Business and Planning Act have been rejected even though they have been applied for with the same plan on precisely the same terms, because another officer has noticed that there is something “wrong” with the plan.

If only these local authorities had been prepared to put away this pervasive bureaucratic culture and embrace some form of consideration for the trade, as they had previously done in 2020, then much delay, stress and cost could have been avoided.

Without wishing to make any political points, some of the blame must be laid at the previous Conservative Government which made the legislation permanent without any proper discussion with the local authorities (many of whom were ill prepared), the industry, or an appreciation of the way local authorities tend to operate.

At the moment, bureaucratic unreasonableness is, in the main, defeating support for the hospitality industry and we can only hope this will change as the new legislation clearly intends.

• James Anderson​ is a partner at Poppleston Allen​​​