Business and Planning Act 2020

Pavement licences

1 Pavement licences

(1) A person whose use or proposed use of any premises in England is or includes relevant use may apply to the appropriate local authority for a licence under this section (a “pavement licence”) in respect of those premises.

(2) A pavement licence in respect of any premises is a licence for the licence-holder to put removable furniture on part of a relevant highway adjacent to the premises for either or both of the purposes in subsection (3).

(3) The purposes are—

(a) use of the furniture by the licence-holder to sell or serve food or drink supplied from, or in connection with relevant use of, the premises;

(b) use of the furniture by other persons for the purpose of consuming food or drink supplied from, or in connection with relevant use of, the premises.

(4) In this group of sections “relevant use”, in relation to premises, means either or both of the following—

(a) use as a public house, wine bar or other drinking establishment;

(b) other use for the sale of food or drink for consumption on or off the premises.

(5) In this group of sections “relevant highway” means a highway—

(a) to which Part 7A of the Highways Act 1980 applies, and

(b) which is not over Crown land or maintained by Network Rail.

(6) In subsection (1) “appropriate local authority” means the local authority in whose area the premises referred to in that subsection are situated.

2 Applications

(1) An application for a pavement licence made to a local authority must—

(a) be made in writing and in such form as the authority may specify,

(b) be sent to the authority using electronic communications in such manner as the authority may specify, and

(c) be accompanied by such fee not exceeding £100 as the local authority may require.

(2) An application for a pavement licence made to a local authority must—

(a) specify the premises, the part of the relevant highway and the purpose or purposes specified in section 1(3) to which the application relates,

(b) specify the days of the week on which, and the times of day between which, it is proposed to put furniture on the highway,

(c) describe the type of furniture to which the application relates,

(d) specify the date on which the application is made,

(e) contain or be accompanied by such evidence of public liability insurance in respect of anything to be done by the licence-holder pursuant to the licence as the authority may require, and

(f) contain or be accompanied by such other information or material as the local authority may require.

(3) The local authority to which an application for a pavement licence is made must, in such manner as it considers appropriate—

(a) publish the application and any information or material required by the local authority under subsection (2)(f), and

(b) publicise the fact that representations relating to the application may be made to the authority during the public consultation period (and indicate when that period comes to an end).

(4) In this group of sections, the “public consultation period” means the period of 7 days beginning with the day after that on which the application is made.

(5) A person who applies for a pavement licence must—

(a) on the day the application is made, fix a notice of the application to the premises so that the notice is readily visible to, and can be read easily by, members of the public who are not on the premises, and

(b) secure that the notice remains in place until the end of the public consultation period.

(6) A notice under subsection (5) must—

(a) be in such form as the local authority to which the application is made may require,

(b) state that the application has been made and the date on which it was made,

(c) indicate that representations relating to the application may be made to the local authority during the public consultation period (and indicate when that period comes to an end), and

(d) contain such other information or material as the local authority may require.

(7) For the purposes of this section an application for a pavement licence is made on the day it is sent to the local authority.

(8) A person who applies for a pavement licence is to be taken to have agreed—

(a) to the use of electronic communications for all purposes relating to the application, and to any licence resulting from the application, which are capable of being carried out electronically, and

(b) that the applicant’s address for the purposes of such communications is the address incorporated into, or otherwise logically associated with, the person’s application.

(9) Where a person applies for a pavement licence, the person may not make another application for a pavement licence in respect of the same premises before the end of the determination period (see section 3).

3 Determination of applications

(1) This section applies where an application for a pavement licence is made to a local authority in accordance with section 2.

(2) Before making a determination in respect of the application, the local authority must—

(a) take into account any representations made to it during the public consultation period,

(b) consult the highway authority for the relevant highway to which the application relates, where the local authority is not that authority, and

(c) consult such other persons as the local authority considers appropriate.

(3) After the end of the public consultation period the local authority may—

(a) grant a pavement licence to the applicant, or

(b) reject the application.

(4) A pavement licence granted to the applicant may be granted in respect of—

(a) any or all of the purposes in relation to which the application is made;

(b) some or all of the part of the relevant highway specified in the application.

(5) A local authority may grant a pavement licence under subsection (3)(a) only if the authority considers that, taking into account any conditions subject to which it proposes to grant the licence (as to which, see section 5), nothing done by the licence-holder pursuant to the licence would have an effect specified in subsection (6).

(6) The effects referred to in subsection (5) are—

(a) preventing traffic, other than vehicular traffic, from—

(i) entering the relevant highway at a place where such traffic could otherwise enter it (ignoring any pedestrian planning order or traffic order made in relation to the highway),

(ii) passing along the relevant highway, or

(iii) having normal access to premises adjoining the relevant highway,

(b) preventing any use of vehicles which is permitted by a pedestrian planning order or which is not prohibited by a traffic order,

(c) preventing statutory undertakers having access to any apparatus of theirs under, in, on or over the highway, or

(d) preventing the operator of an electronic communications code network having access to any electronic communications apparatus kept installed for the purposes of that network under, in, on or over the highway.

(7) Where a local authority is considering for any purpose of this group of sections whether furniture put on a relevant highway by a licence-holder pursuant to a pavement licence has or would have the effect referred to in subsection (6)(a), the authority must have regard in particular to—

(a) the needs of disabled people, and

(b) the recommended distances required for access by disabled people as set out in guidance issued by the Secretary of State.

(8) In subsection (6), words and expressions which are also used in Part 7A of the Highways Act 1980 have the same meanings as in that Part of that Act.

(9) If the local authority does not make a determination under subsection (3) by the end of the determination period, the licence for which the application was made is deemed to be granted by the authority to the applicant.

(10) In this group of sections, the “determination period” means the period of 7 days beginning with the first day after the public consultation period.

4 Duration

(1) A pavement licence may be granted by a local authority—

(a) for such period as the local authority may specify in the licence, or

(b) with no limit on its duration, in which case it expires at the end of 30 September 2021.

(2) A period specified under subsection (1)(a)—

(a) may not be less than three months, and

(b) may not extend beyond 30 September 2021.

(3) Where a pavement licence is deemed to be granted under section 3(9) it is, subject to subsection (4), deemed to be granted for a year starting with the first day after the determination period.

(4) A pavement licence deemed to be granted under section 3(9) which is in force at the end of 30 September 2021 expires at that time.

(5) The licence-holder may surrender a pavement licence at any time by giving notice to the local authority by which it is granted or deemed to be granted.

(6) A notice under subsection (5) must be made in writing and sent using electronic communications in such manner as the local authority may specify.

5 Conditions

(1) A pavement licence may be granted by a local authority subject to such conditions as it considers reasonable.

(2) A local authority may publish conditions subject to which it proposes to grant pavement licences.

(3) Where a pavement licence is deemed to be granted by a local authority under section 3(9), it is deemed to be granted subject to any conditions which are published by the local authority under subsection (2) before the day on which the application for the licence was made.

(4) To the extent that a pavement licence which is granted or deemed to be granted would not by virtue of the preceding provisions of this section be subject to a no-obstruction condition or a smoke-free seating condition, it is deemed to be granted subject to such a condition.

(5) A “no-obstruction condition” is a condition that anything done by the licence-holder pursuant to the licence, or any activity of other persons which is enabled by the licence, must not have an effect specified in section 3(6).

(6) A “smoke-free seating condition” is a condition that, where the furniture to be put on the relevant highway consists of seating for use by persons for the purpose of consuming food or drink, the licence-holder must make reasonable provision for seating where smoking is not permitted.

(7) In considering for any purposes of this group of sections whether a licence-holder has made reasonable provision for seating where smoking is not permitted, a local authority must have regard to guidance issued by the Secretary of State.

(8) The Secretary of State may by regulations—

(a) specify conditions for pavement licences, and

(b) make provision as to whether, or the extent to which, those conditions have effect in addition to, or instead of, any other conditions to which pavement licences are subject.

6 Enforcement and revocation

(1) If the local authority by which a pavement licence is granted or deemed to be granted considers that the licence-holder has breached any condition of the licence, the authority may—

(a) revoke the licence, or

(b) serve a notice on the licence-holder requiring the taking of such steps to remedy the breach as are specified in the notice within such time as is so specified.

(2) If a licence-holder on whom a notice is served under subsection (1)(b) fails to comply with the notice, the local authority may—

(a) revoke the notice, or

(b) take the steps itself and recover the costs of doing so from the licence-holder.

(3) A local authority by which a pavement licence is granted or deemed to be granted may also revoke the licence if it considers that—

(a) some or all of the part of the relevant highway to which the licence relates has become unsuitable for any purpose in relation to which the licence was granted or deemed to be granted,

(b) as a result of the licence—

(i) there is a risk to public health or safety,

(ii) anti-social behaviour or public nuisance is being caused or risks being caused, or

(iii) the highway is being obstructed (other than by anything done by the licence-holder pursuant to the licence),

(c) anything material stated by the licence-holder in their application was false or misleading, or

(d) the licence-holder did not comply with the duty in section 2(5).

7 Effects

(1) A pavement licence authorises the restriction, by anything done by the licence-holder pursuant to the licence, of public access to the part of the relevant highway to which the licence relates.

(2) A pavement licence constitutes deemed planning permission for anything done by the licence-holder pursuant to the licence—

(a) which is development requiring planning permission under Part 3 of the Town and Country Planning Act 1990, and

(b) for which there would otherwise not be planning permission or deemed planning permission.

(3) Anything done by the licence-holder pursuant to a pavement licence is not street trading for the purposes of—

(a) Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 (street trading),

(b) Part 3 of the London Local Authorities Act 1990 (street trading), or

(c) any other enactment under or by virtue of which street trading without a licence or other form of permission is unlawful.

(4) Nothing in this group of sections prevents a person from applying for permission under Part 7A of the Highways Act 1980 or any other enactment to do anything which could be done by a licence-holder pursuant to a pavement licence (but a local authority may not require a person to apply for such permission rather than a pavement licence).

(5) Where a pavement licence has been granted or deemed to be granted to a person, permission subsequently granted to the person under Part 7A of the Highways Act 1980 or any other enactment to do anything which could be done by the person pursuant to the pavement licence has no effect while the pavement licence continues in force.

(6) Section 149 of the Highways Act 1980 (power to remove things deposited on a highway) applies in relation to anything put on a relevant highway pursuant to a pavement licence.

(7) Section 333 of the Highways Act 1980 (saving for rights and liabilities as to interference with highways) applies as if sections 1 to 6 were provisions of that Act.

(8) In section 249 of the Town and Country Planning Act 1990 (order extinguishing right to use vehicles on highway), subsection (7) has effect as if at the end there were inserted “or sections 1 to 9 of the Business and Planning Act 2020”.

(9) Subsection (10) applies where—

(a) a person has applied to a local authority for—

(i) permission under section 115E of the Highways Act 1980, or

(ii) a licence or other form of permission for street trading under an enactment referred to in subsection (3), but

(b) before the application is determined, the person applies for a pavement licence.

(10) Where this subsection applies—

(a) the application referred to in subsection (9)(a) is treated as withdrawn, and

(b) if the person has paid any fee payable in connection with that application, the local authority to which the pavement licence application is made may not require a fee under section 2(1)(c).

8 Local authority functions

(1) In exercising its functions under this group of sections a local authority must have regard to any guidance issued under this section by the Secretary of State.

(2) Schedule 1 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 (S.I. 2000/2853) (functions which are not to be the responsibility of an authority’s executive) has effect as if, in paragraph B, after item 72 there were inserted—

“73 Functions relating to pavement licences

Sections 1 to 7 of the Business and Planning Act 2020.”

9 Interpretation

(1) In sections 1 to 8 and this section—

• “Crown land” means land—

  (a)

  belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster,

  (b)

  belonging to the Duchy of Cornwall,

  (c)

  belonging to a government department, or

  (d)

  held in trust for Her Majesty for the purposes of a government department;

• “determination period” has the meaning given in section 3(10);

• “enactment” has the same meaning as in the Highways Act 1980 (see section 329 of that Act);

• “furniture” means—

  (a)

  counters or stalls for selling or serving food or drink,

  (b)

  tables, counters or shelves on which food or drink can be placed,

  (c)

  chairs, benches or other forms of seating, and

  (d)

  umbrellas, barriers, heaters and other articles used in connection with the outdoor consumption of food or drink;

• “licence-holder”, in relation to a pavement licence, means the person to whom the licence is granted or deemed to be granted;

• “local authority” means—

  (a)

  a district council in England,

  (b)

  a county council in England for an area for which there is no district council,

  (c)

  a London borough council,

  (d)

  the Common Council of the City of London in its capacity as a local authority, and

  (e)

  the Council of the Isles of Scilly;

• “pavement licence” is to be construed in accordance with section 1(1);

• “public consultation period” has the meaning given in section 2(4);

• “relevant highway” has the meaning given in section 1(5);

• “relevant use” has the meaning given in section 1(4);

• “smoking” has the same meaning as in Part 1 of the Health Act 2006;

• “this group of sections” means sections 1 to 10.

(2) Subsection (3) applies for the purposes of—

(a) the reference in section 1(5)(a) to a highway to which Part 7A of the Highways Act 1980 applies, and

(b) the references to traffic orders in section 3(6)(a)(i) and (b) (which, by virtue of section 3(8), have the same meaning as in that Part of that Act).

(3) The definition of “traffic order” in section 115A(2) of the Highways Act 1980 is to be treated as if it included an order under section 14 of the Road Traffic Regulation Act 1984 made pursuant to subsection (1)(b) or (c) of that section under the procedure provided for by regulation 18 of the Road Traffic (Temporary Restrictions) Procedure Regulations 1992 (S.I. 1992/1215) (procedure for temporary orders made for purposes connected to coronavirus).

(4) Section 115A(5) of the Highways Act 1980 (references to highways to which Part 7A of that Act applies) applies for the purposes of this group of sections.

(5) In reckoning the public consultation period or the determination period, no account is to be taken of—

(a) Christmas Day,

(b) Good Friday, or

(c) a day which is a bank holiday in England under the Banking and Financial Dealings Act 1971.

10 Expiry of pavement licence provisions

(1) Sections 1 to 9 expire at the end of 30 September 2021.

(2) If the Secretary of State considers it reasonable to do so to mitigate an effect of coronavirus, the Secretary of State may by regulations substitute the date for the time being specified in any of the following provisions with a later date—

(a) section 4(1)(b), (2)(b) or (4);

(b) subsection (1) of this section.

(3) In subsection (2) “coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).