The Business and Planning Act 2020 introduced temporary provisions designed to make it easier for premises serving food and drink such as bars, restaurants and cafes to seat and serve customers outdoors, maximising their ability to trade, assisting them to operate safely and promoting economic recovery in response to the impact of the global COVID-19 pandemic.
The Act created a regime for processing applications for ‘pavement licences’ to authorise businesses such as bars, restaurants and cafes to place furniture on the highway. This is a fast-track procedure to get the same permissions a business would previously have had from a Part VII Highways Act permit.
The Levelling-Up and Regeneration Act 2023 made the provisions of the Business and Planning Act 2020 permanent with effect 31st March 2024.
Tandridge District Council is responsible for granting or refusing permission to businesses in respect of the placement of furniture such as tables and chairs on the highway (including footpaths and pavements). Permission can only be granted for premises selling or consuming food and drink in connection with the activity of the main premises. There is no specific restriction on what part of the highway can be licensed, provided it is adjecent to the existing business.
A licence is not required for furniture sited on private land.
The licensed area is normally expected to be an area directly in front of and visible from the premises. The area should not extend beyond the width of its frontage unless there are exceptional circumstances.
The type of furniture that may be permitted for use is:
- counters or stalls for selling or serving food or drink
- tables, counters or shelves on which food or drink can be placed
- chairs, benches or other forms of seating, and
- umbrellas, barriers, heaters and other articles used in connection with the outdoor consumption of food or drink.
This furniture is required to be removable, which in principle this means it is not a permanent fixed structure, and is able to be moved easily, and stored away when not in use. Furniture should also be of a type that is not likely to cause damage to the highway surface. Furniture should be non- reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind, and thereby cause obstruction or a safety hazard.
The council would also expect the type of furniture to be ‘in keeping’ with the local area.
The fee for applying for a licence is £500. This charge covers administration and compliance costs. This is not refundable in the event that an application is deemed invalid, rejected, or a licence subsequently surrendered, suspended or revoked.
The fee for the renewal of a licence is £350. A renewal application is defined as one made before expiry of the previous licence by the same holder, for the same premises and in the same terms.
The consultation period is 14 days, starting from the day after the day on which a valid application was made to the council.
The council will aim to publish details of the application on its website. The council is required by law to consult with the Highways Authority, and will also aim to consult with the following:
- Planning
- Environmental Health
- Economic Development
- Surrey Police
- Surrey Fire and Rescue
The council must take into account any representations received during the consultation period and consider these when determining the application.
The applicant has to post a notice of the application (using the council’s template, available on the website) on the premises to which it relates, on the same day that they submit the application. The notice must be easily visible and legible to the public and the applicant must ensure the notice remains in place for the whole of the public consultation period as detailed above.
Applicants should record and retain evidence that they have complied with all requirements, including posting the notice at their premises. It is recommended that applicants take a photo of the notice on a mobile phone each day during the consultation period so that they can prove the notice was there for the required period.
The council will generally only grant pavement licences to operate between 09:00 and 21:00.
Applicants wishing to operate outside these hours may wish to include additional information as to how they will prevent nuisance affecting nearby residents. The council also retains the right to specify permitted hours on the licence that are reduced from those specified above in appropriate circumstances.
At the end of the consultation period, the council has 14 days to determine the application. If the council determines the application before the end of the determination period, the council can:
- 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, or
- reject the application.
If the council does not determine the application within the determination period, the application will be deemed to have been granted subject to any local conditions published by the council at the time the application is submitted.
If the site is deemed unsuitable for a pavement licence, or if relevant representations are made which cannot be mitigated by conditions, then the application may be rejected. There is no statutory appeal process against a decision to reject an application.
If an applicant or objector does not believe due process has been followed when determining an application, they are entitled to use the council’s complaints procedure.
Licences will be granted for two years unless there are good reasons for granting a licence for a shorter period, such as plans for future changes to the highway in that area. If the council does not decide the application with the determination period, the licence which was applied for is deemed to be granted for two years with the standard conditions.
Licences are not transferable, so a new application would be required to issue a licence to a new licence holder.
All licences will be issued with a condition requiring a licence holder to make reasonable provision for seating where smoking is not permitted. It is expected that this will be the majority of the area. This means that where businesses provide for smokers, customers will also have the option of sitting in a non-smoking area. Ways of meeting this condition could include:
- Clear ‘smoking’ and ‘non-smoking’ areas, with ‘no smoking’ signage displayed in designated ‘smoke-free’ zones in accordance with Smoke-free (signs) regulations 2012.
- No ash trays or similar receptacles to be provided or permitted to be left on furniture where smoke-free seating is identified.
- Licence holders should provide a minimum 2 metre distance between non-smoking and smoking areas, wherever possible.
All licences will be issued with a ‘No Obstruction’ condition requiring a licence holder to ensure there are clear routes of access along the highway and that these must be maintained. When determining whether furniture constitutes an unacceptable obstruction in light of the no-obstruction condition, the licensing authority will consider the needs of disabled people.
Obtaining a licence does not confer the holder immunity in regard to other legislation that may apply, such as health and safety legislation, food hygiene requirements and premises licence conditions under the Licensing Act 2003.
All enforcement activity by the council will be undertaken in line with our Enforcement Policy. Periodic inspections of premises with pavement licences will be made by the council to ensure compliance with the licence and conditions.
If there is a breach of a licence condition, the council may either revoke the licence or serve a notice on the licence holder requiring them to take steps to remedy the breach within a specified time. If the licence holder fails to comply with a notice, the council may revoke the notice or take the steps itself and recover the costs of doing so from the licence holder.
Please read the temporary pavement licensing policy before applying. You will need to supply information as part of your application and if it is not provided in full it may result in delays to your application being granted, or it may be refused.
On the day you apply for a pavement licence you must display a site notice on the premises so the notice is visible and can easily be read by anyone not on the premises. A template for the notice is available.