Pavement Licence

On the 22nd July 2020 The Business and Planning Act 2020 was enacted. The Act effects both pavement café provision and the off-sales of alcohol.

It introduced a simpler and more expedited licensing process for businesses such as bars, pubs, restaurants and cafés who may wish to use the public highway as an outdoor seating area.

The Levelling Up and Regeneration Act 2023 

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 licenses quickly.

What are the transitional arrangements?

Existing pavement licences granted under the Business and Planning Act 2020, prior to the commencement date, will remain valid until the expiration date on the licence, given to them by the local authority. Once this has expired, businesses will need to apply for a new licence. Local authorities should treat this as a renewal application if it is made by the licence-holder, it is in respect of the same premises and it is on the same terms as the expired licence.

Licences determined before the 31 March 2024 will be subject to the enforcement powers set out in the permanent regime.

Any pavement licence that was granted under the Business and Planning Act 2020 before the commencement date with no limit on its duration, or that was deemed to be granted will expire 2 years from the commencement date.

Any permission that was granted by a council under the Highways Act 1980 before the commencement date will continue under that legislation.

Applications made (and submitted to the local authority) on or before 30 March 2024 but determined on or after 31 March 2024 will be subject to a 7-day consultation, 7-day determination period. The maximum fee that can be charged for applications during this timeframe is £100. However, these licences can be granted for up to 2 years.

How should applications for renewals of licences granted under the temporary provisions be submitted?

To obtain a licence for any period after 31 March 2024, a new application will need to be made even if the premises already had a licence until 31 March 2024.

An application will need to have been made after the commencement date for it to be treated as a renewal. Local authorities are encouraged to take a proportionate approach to information requirements for businesses seeking a new pavement licence where a licence has existed, so that this is as convenient as possible for businesses and members of the public. An example of a proportionate approach could be allowing applicants to re-use application material from their original application, updating where relevant to ensure they still comply with local and national conditions.

Businesses who have had a licence under the previous regime and are seeking a new licence should be treated as a renewal application if it is made by the licence-holder, it is in respect of the same premises and it is on the same terms as the expired licence.

Can licensable activities still be granted under the Highways Act?

Any licence applications for activities in England licensable under pavement licensing legislation in the Business and Planning Act 2020 must be granted under the Business and Planning Act 2020 (as amended by section 229 of and schedule 22 to the Levelling Up and Regeneration Act). They should not be granted under the Highways Act 1980.

Applicants will still need to apply for permission to carry out activities not licensable under the Pavement Licensing regime, under the Highways Act 1980. Example of such activities include the placement of furniture that is not removeable, such as bolted to the ground or cannot be reasonably removed, or placement of furniture other than tables, chairs or stools on the highway.

What happens if an applicant has already made an application under the Highways Act 1980 regime?

It remains open for an applicant to apply for permission to place furniture on the highway under the Highways Act 1980. If the applicant has applied for permission under the Highways Act before the commencement date, but the Highways Authority has not determined the application, the applicant can instead apply for a pavement licence under the Business and Planning Act 2020. In those circumstances the pending application will be deemed to have been withdrawn. If the fee for the pending application was paid the authority will not be permitted to charge a fee for the new application for a pavement licence.

From the commencement date, a council may not grant an applicant permission to do anything which is capable of being authorised by a pavement licence under the Business and Planning Act 2020.

What is a Pavement Licence?

A pavement licence is a licence granted by the Local Authority 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.

Planning permission for removable furniture is not required.

The Local Authority must ensure that the public’s right to use the highway is not detrimentally affected if a licence is granted to operate a licensed area on the pavement. 

The area must be located, designed and managed in a way that takes into account the needs of all highway users, including disabled people.

It is recommended that you liaise with neighbouring businesses and occupiers prior to applying to the Local Authority to address any potential issues in your application.

Government guidance is available at Pavement licences: guidance - GOV.UK (www.gov.uk)

Who can apply for a pavement licence?

A business which uses (or proposes to use) premises for the sale of food or drink for consumption (on or off the premises) can apply for a licence. 

Businesses that are eligible include:

• Public Houses
• Restaurants
• Bars
• Cafes
• Snack Bars
• Coffee Shops
• Ice Cream Parlours

Premises that have ancillary aspects such as supermarkets and entertainment venues that that sell food and drink may also apply.

Conditions and requirements

A pavement licence is subject to national and locally imposed conditions.

A full list of local pavement cafe licence conditions can be found here. 

The Local Authority may impose other additional reasonable conditions whether or not they are published upfront. 

Making an application

A New Pavement Licence costs £500. This must be paid at the time the application is submitted.  (This is a non-refundable fee, even where the application is refused).

An application must;

• specify the premises and, the part of the relevant highway to which the application relates;
• specify the purpose (or purposes) for which the furniture will be used which must be for use by the licence-holder to sell or serve food or drink, and/or for use by other people for the consumption of food or drink. In both cases the food or drink must be supplied from, or in connection with relevant use of the premises. (Where you wish to sell alcohol it will require application for a premises licence or where there is already one in place, a variation application must be submitted to include the outside pavement licence area);
• specify the days of the week on which and the hours between which it is proposed to have furniture on the highway (Whilst the Local Authority’s standard local conditions permit 09:00 to 23:00, these hours may be subject to change as part of the consultation process. Each application will be considered on its own merits);
• describe the type of furniture to which the application relates, for example: tables, chairs, and/or stalls;
• specify the date on which the application is made;
• contain or be accompanied by such evidence of public liability insurance in respect of anything to be done pursuant to the licence as the authority may require; and
• contain or be accompanied by such other information or material as the local authority may require, for example how national and local conditions have been satisfied.
• Enclose scale plan of proposed area including all measurements of the proposed area and any obstructions on the highway
• Enclose proof of Public Liability Insurance in the sum of £10m (£5m if the premises is located outside of the city centre) for the operation of a pavement licence

The application will be subject to a public consultation period of 14 days starting on the day after a valid application is made.  During this time the application will be advertised on the Local Authority’s website.

The determination period is 14 days beginning with the first day after the end of the consultation period.

Please make application here New Pavement Licence. 

Duration of licence

If granted by the Local Authority within the determination period, the licence will be valid for a maximum duration of 2 years. If the Local Authority determine an application before the end of the determination period, the Local Authority can specify the duration of the licence, which may be less than 2 years.

A public notice must be displayed on the premises the day that the application is made, with the consultation period running for 14 days starting from the next working day after the application is made (excluding public holidays).

Failure to display a notice for the entire consultation period will invalidate your application. Please take a photograph of your notice being displayed and email to licensing@newcastle.gov.uk

Public Notice template

Renewal of Pavement Licence

A renewal of an existing pavement licence costs £350. This must be paid at the time the application is submitted.  (This is a non-refundable fee, even where the application is refused).

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.

A renewal application must:

Please make application here Renew Pavement Licence. 

• Enclose proof of Public Liability Insurance in the sum of £10m (£5m if the premises is located outside of the city centre) for the operation of a pavement licence.

Duration of licence

If granted by the Local Authority within the determination period, the licence will be valid for a maximum duration of 2 years. If the Local Authority determines an application before the end of the determination period, the Local Authority can specify the duration of the licence, which may be less than 2 years.

Displaying a public notice

A public notice must be displayed on the premises the day that the application is made, with the consultation period running for 14 days starting from the next working day after the application is made (excluding public holidays).

Failure to display a notice for the entire consultation period will invalidate your application. Please take a photograph of your notice being displayed and email to licensing@newcastle.gov.uk

Public Notice Template

Enforcement

The grant of a pavement licence only permits the placing of removable furniture on the highway; other regulatory frameworks still apply such as the need for alcohol licences and the need for food business registration.

If a licence holder breaches any condition of the licence, the Council may revoke the licence or serve on the license holder a notice requiring the breach to be remedied. If the breach is not remedied, the Council will undertake works to remedy the breach and recover the costs of doing so from the licensee. 

The licence may also be revoked if all or any part of the highway to which the licence relates has become unsuitable for any purpose for which the licence was granted.

In certain circumstances, and with the agreement of the licence holder, the Council may also amend a licence.

Tacit Consent

Tacit consent does apply. The application will either be granted as applied for, modified, or refused. The decision made by the Local Authority is final and there is no right of appeal.

Once the information is submitted to the Local Authority, the Authority has 28 days from the day after the application is made (excluding public holidays) to consult on and determine the application. This consists of 14 calendar days for public consultation, and then 14 calendar days to consider and determine the application after the consultation.

If the Local Authority does not determine the application within the 14-day determination period, the application will be deemed to have been granted subject to any local conditions published by the Local Authority before the application was submitted.

If a licence is ‘deemed’ granted because the Local Authority does not make a decision on an application before the end of the determination period, then the licence will be valid for two years starting with the first day after the determination period. 

However, if, when implemented, a licence that has been deemed granted does not meet the conditions set out in the legislation or any local conditions, it can be revoked at any time on the grounds that it has breached the conditions.

Contact

If you need advice or have questions relating to pavement licences contact:

Newcastle City Council Licensing Authority, City Operations Neighbourhoods & Regulations, Civic Centre, Newcastle upon Tyne, NE1 8QH

Tel. 0191 278 7878

E-mail. licensing@newcastle.gov.uk