Charles Holland -
Barrister

Licensing law, chancery/commercial litigation and property.

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Pavement licensing under the Business and Planning Act 2020

July 23, 2020

 

The Business and Planning Act 2020 received Royal Assent on 22 July 2020.

 

The pavement licensing provisions in sections 1-10 of the Act come into force immediately.

 

The explanatory notes for the Act have yet to appear on the leglislation.gov.uk website. In advance of that, some indication of what they might state can be obtained from the explanatory notes to the Bill.

 

The statutory guidance for pavement licensing functions has been published.

 

As a result of Lords' amendments, the Secretary of State may no longer publish national conditions: instead these are to be made by Regulations. No Regulations have been made yet.

 

I have co-authored a note on behalf of NEXSTART on the new provisions. The note sets out an introduction to the new regime and then has a comprehensive list of Q&As. It intended to keep the note up to date and all comments and queries are gratefully received. 

 

On the subject of Public Space Protection Orders ("PSPOs") made under the Anti-social Behaviour, Crime and Policing Act 2014 ("ASBCPA"), Government guidance issued in relation to  new temporary off-sales permissions (but not the corresponding guidance on pavement licences) says as follows [12]:

 

12. My premises are in an area where there is a public space protection order (PSPO) banning the consumption of alcohol in public. Do the pavement and alcohol licensing provisions in the Act override this?


The provisions in the Act do not override or suspend PSPOs that 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 a permission under section 115E of the Highways Act 1980.

 
It is right that pavement licences do not override or suspend PSPOs. S.62(1)(e) of ASBCPA excludes from a PSPO a prohibition on consuming alcohol in a place where facilities or activities relating to the sale or consumption of alcohol are at the relevant time permitted by virtue of a permission granted under section 115E of the Highways Act 1980. No similar-carve out exists for a pavement licence (which is not a s.115E permission). A suggestion from NEXSTART that an amendment be made to the Bill to include it was not taken up.
 
Given that the aim of the pavement licensing provisions is to assist local businesses, I wonder if an answer would be for the local authority which has made the PSPO to vary it under s.61 ASBCPA, so as to exempt from its prohibition a place where facilities or activities relating to the sale or consumption of alcohol are at the relevant time permitted by virtue of a pavement licence granted under the Business and Planning Act 2020? This would avoid the delay inherent in the approach Central Government suggests.

 

As local authorities set up their procedures and policies I will provide links to some of them here as and when the opportunity arises:

 

  • Cambridge City Council - no fee, 33 conditions including "No additional charge shall be made to customers for the use of the tables and chairs within the licensed area", no standard cut off hours.

  • Camden LBC - £100 fee, 30 conditions including "Uniform tables and chairs must be used". No standard cut off condition.

  • Doncaster Council - £100 fee, 24 conditions - "If you are based in Doncaster town centre, due to the Public Space Protection Order (PSPO) you are not eligible to be granted a Temporary Pavement Licence under the Business & Planning Act. However, you can still apply for an Alfresco licence under the Highways Act."

  • Epping Forest - Independent business operating until 8pm free, all others (including "franchises and chains" £100 - 32 local conditions - plastic/toughened glass only for consumption of alcohol - standard cut off 21.00 Sunday to Thursday and 22.00 Friday and Saturday.

  • Forest of Dean DC - no fee, 16 local conditions, standard cut off of 22.00

  • Guildford Borough Council - £100 fee, 21 conditions, no standard cut off condition but policy is "The Council generally will only permit Pavement licences between 09:00 and 22:00".

  • Harrogate Borough Council - fee not disclosed on website, 27 conditions

  • Harrow Council - £50 fee, 41 conditions, no standard cut off hours

  • Hillingdon Council - £50 for 4 months, 2 extensions of 4 months at £20 each, 24 conditions, no standard cut off hours

  • Liverpool City Council - no fee, 6 local conditions including no smoking, standard cut off of 18.00

  • Malvern Hills District Council - £100 fee, 13 local conditions including standard cut off of 22.00

  • Merton LBC - £100 fee, 14 conditions, 23.00 cut off. Conditions also apply to Richmond and Wandsworth.

  • Middlesbrough BC - no fee, 18 conditions, no smoking or vaping, no vertical drinking, alcohol in plastic containers only, 22.00 cut off

  • North Devon Council - £100 fee, 38 conditions - "Appeals will be determined by the Public Protection Manager, and will determined within 28 days."

  • North Norfolk District Council - £75 fee, 13 conditions including standard cut off of 23.00 and "The licence holder shall ensure that social distancing guidelines are complied with, in line with the Coronavirus Regulations 2020 and associated guidance"

  • Redbridge LBC - £100 fee, designated streets only, 7 standard conditions

  • Royal Borough of Kensington and Chelsea - £100 fee, 25 conditions including standard cut off of 22.00

  • Stockton-on-Tees Borough Council - 21 conditions including alcohol in plastic containers only and "The pavement licence holder must strictly comply with the extant social distancing measures – as advised by Government – at any given time." 22.00 hours standard cut off.

  • Surrey Heath - £100 fee, 24 conditions.

  • Westminster City Council - £100 fee, 26 conditions, standard cut off of 23.00

  • West Oxfordshire District Council - no fee, 16 local conditions, standard cut off of 22.00 hours

  • Worcester City Council - £100 fee, 13 local conditions, standard cut off of 22.00

 

 

 

 

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A cafe in the mountains

 

This is a glass slide showing a group of men and women outside a cafe in the mountains.

The slide is from 1928. It was taken by South Shields Photographic Society's photographer Harrison Burgess during a trip to Switzerland and Belgium made by the society in 1928.

 

This image is part of the Tyne & Wear Archives & Museums set Harrison Burgess and the South Shields Photographic Society.

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