What is a pavement licence?

Background to the introduction of pavement licences

Apply for a Pavement Licence 

To apply for a pavement licence go to our Apply for a pavement licence page.

What is a Pavement Licence? 

A pavement licence is a licence granted by the local authority, or deemed to have been granted, which allows the licence-holder to place removable furniture over certain highways adjacent to the premises in relation to which the application was made, for certain purposes. As of 31 March 2024 The Levelling Up and Regeneration Act 2023 makes permanent the provisions set out in the Business and Planning Act (BPA) 2020 that streamlined the process to allow businesses to secure these licences quickly.

There are transitional arrangements in place. Existing licence-holders can retain their licences granted under the temporary regime until the expiration date on their licence. After these existing licences expire, on or after 31 March 2024, businesses can reapply under the renewals process. Applications determined before 31 March 2024, will be subject to the new enforcement power under the permanent regime, which grants authorities the power to amend the licence in certain circumstances with the licence-holder's consent.

The latest amended legislation amends powers to grant licences under the Highways Act 1980 (a regime previously administered by Devon County Council) and brings all Pavement Licence applications in the North Devon area under the jurisdiction of North Devon Council. Any permission that was granted by Devon County Council under the Highways Act 1980 before the commencement date will continue under that legislation.

Those licences issued under the Business and Planning Act 2020 will be largely unaffected, but licence holders should now be aware of the following updates, particularly prior to the expiry of their licences.

The amended legislation makes the following revisions, including:

  • Provision of both a grant and renewal process (previously no renewal process existed under the Business and Planning Act 2020) 
  • The fee for grant and renewal applications are now subject of a higher fee
  • Extending both the public consultation period and council determination period from 7 days to 14 days for applications received
  • Extending the maximum duration of pavement licences from 1 year to 2 years (for those granted under the new amended legislation)
  • Inserting a new enforcement schedule providing powers to North Devon Council to remove furniture if a premises is not abiding by its pavement licence conditions and hours
  • Amending legislation relating to the consumption of alcohol. This will now allow alcohol to be consumed in a pavement licenced area (granted under the new provisions) where restrictions in respect of public drinking are in place by way of a Public Space Protection Order.

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. A map to assist applicants is available. However, if in doubt, please check whether the area proposed is highway with Devon County Council directly. It is important that applicants do not apply for areas of road or footpath which are not defined as highway.

Please contact us before making your application if the area where you wish to gain a licence is not immediately adjoining your premises. Applications where this applies may be approved providing there are no concerns relating to health and safety, public amenity or accessibility. You will be expected to provide written confirmation of permission from your neighbour in these instances

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.

Guidance on Pavement Licences new process is available on GOV.UK

Determination Period

There is a 14 day period of consultation, and then a further period of 14 days to allow for the determination of a licence.

The council may determine to either:

  • Grant the licence in respect of any or all of the purposes specified in the application.
  • Grant the licence for some or all of the part of the highway specified in the application, and impose conditions.
  • Refuse the application.

What is a Licence Renewal?

For the purposes of the amended provisions an application is a renewal application if:

  • It is made by a person who already holds a pavement licence
  • It is in respect of the premises to which the existing licence relates, and
  • It is for a licence to begin on the expiry of the existing licence and on the same terms.

Local Conditions

For the purposes of consistency, the council has set out local conditions for pavement licences 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.

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:

  1. For breach of condition, (whether or not a remediation notice has been issued) or
  2. 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

3. 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.

4. If a person puts removable furniture on a relevant highway for which a licence would be required and there is a lack of compliance with the legislative provisions, the Council may now serve a notice require the person to remove the furniture before a set date, and refrain from putting furniture on the highway unless authorised. If the person then leaves or puts removable furniture on the relevant highway in contravention of the notice, North Devon Council may:

  • Remove the furniture and store it.
  • Require the person to pay the authority’s reasonable costs in removing and storing the furniture, and refuse to return the furniture until those reasonable costs are paid. 
  • If within the period of three months beginning with the day on which the notice is given the person does not pay the reasonable costs, or does not recover the furniture, North Devon Council may:
  • Dispose of the furniture by sale or in any other way it thinks fit, and retain any proceeds of sale for any purpose it thinks fit.

Appeal

There is no appeal mechanism for the refusal of a Pavement Licence provided for under the Business and Planning Act 2020