The Business and Planning Act 2020, introduced a more streamlined and cheaper route for businesses to gain a Pavement Licence. This was later extended and licences can now be issued until the 30 September 2023.
Licences can only be granted in respect of highways listed under section 115A(1) Highways Act 1980. Generally, these are footpaths restricted to pedestrians or are roads and places to which vehicle access is restricted or prohibited. If in doubt, please check whether the area proposed is highway with Devon County Council (who act as the Highway Authority) prior to making your application.
Businesses that are eligible include: public houses, cafes, bars, restaurants, snack bars, coffee shops, and ice cream parlours including where such uses form an ancillary aspect of another use, for example supermarkets, or entertainment venues which sell food and drink.
Under the more streamlined new process, administered by the North Devon Council, there is a 14 day period of consultation and decision making, before such time as an application is determined.
The provisions in the Act do not override or suspend Public Space Protection Orders which ban the consumption of alcohol in public. If your premises are located in such an area and you would like your customers to be able to consume alcohol outside or off the premises, you will need to apply for permission under section 115E of the Highways Act 1980 to Devon County Council.
Guidance on this new process is available on GOV.UK
Local Conditions
For the purposes of consistency, the council has set out local conditions that will be attached to any Pavement Licence.
Where the council sets a local condition that covers the same matter as set out in national conditions, then the locally set condition will take precedence over the national condition where there is reasonable justification to do so.
When considering their powers in relation to local conditions the council has borne in mind the requirements of the Business and Planning Act 2020 and any national published conditions such as that above.
It should be noted that the council can add conditions to a licence that are not set out in North Devon Council’s Pavement Licence Conditions, if it determines the need to meet the requirements of determining factors set out above. There is an expectation that these will be supported by a clear justification for the need of a condition which is in addition to any published local conditions.
Conditions might, for example limit the maximum number of chairs and tables or type of furniture, time and days of operation with justification for this.
The council will also take into account the government guidance relevant to pavement licensing, for instance the government has published the COVID-19 Secure Safer Public Places Guidance which provides owners and operators of public spaces with information and examples of measure that may be undertaken to adapt and manage public spaces in order to help social distancing.
Enforcement
The Act and associated guidance sets out the steps that councils can take by way of enforcement action where conditions have been broken. The council can issue a remediation notice as well as revoke a licence.
In what circumstances can the local authority enforce or revoke a licence?
If a condition imposed on a licence (either by the local authority) or nationally is breached, the local authority will be able to issue a notice requiring the breach to be remedied and the authority can take action to cover any costs.
The authority may revoke a licence in the following circumstances:
- For breach of condition, (whether or not a remediation notice has been issued) or
- Where:
- there are risks to public health or safety – for example by encouraging users to breach government guidance on social distancing by placing tables and chairs too close together or where it comes to light that there are significant security risks which have not been sufficiently considered, or addressed in a proportionate fashion (this should be reassessed as necessary, particularly in the event of changes to the terrorism threat level);
- this use of the highway is causing an unacceptable obstruction, breaching the non-obstruction condition – for example, the arrangement of street furniture prevents disabled people, older people or a wheelchair users to pass along the highway or have normal access to the premises alongside the highway
- the use is causing anti-social behaviour or public nuisance – for example, the use is increasing the amount of noise generated late at night and litter is not being cleaned up;
- it comes to light that the applicant provided false or misleading statements in their application – for example they are operating a stall selling hot food and had applied for tables and chairs on which drinks could be consumed; or
- the applicant did not comply with the requirement to affix the notice to notify the public for the relevant period
- The local authority may also revoke the licence where all or any part of the area of the relevant highway to which the licence relates has become unsuitable for any purpose for which the licence was granted or deemed to be granted. For example, the licensed area (or road adjacent) is no longer to be pedestrianised. It is good practice for local authorities to give reasons where these powers are used
Appeal
There is no appeal mechanism for the refusal of a Pavement Licence provided for under the Business and Planning Act 2020