More customers, particularly in the warmer weather, many of whom have spent all day in a rather dim office, want to be outside in the evening or at weekends, whether it is sitting in a trendy garden hut or simply standing on the pavement next to a road.
For the industry, the use of outdoor space means a relatively cheap increase to trading area, which has become less reliant on seasons as heaters, blankets and covered areas are provided often with TVs, barbecues, outside bars and entertainment.
Although there is sometimes a clash with local residents, from a legal perspective the planning and licensing issues are often straightforward; good management and a cut off time of 11pm will often be sufficient to mitigate risk.
Compare this to the issues of the highway, where the land is not owned or controlled by the operator but by the local authority.
This in many cases throws the operator into a different world; often a world of pain.
The legal position controlling structures on the highway is complex. It is understandable councils want to rigorously regulate areas used by pedestrians for reasons of public safety and convenience.
Lack of flexibility
The pandemic of 2020 highlighted the challenges and the then Government introduced the Business and Planning Act 2020 in an attempt to simplify the mixed bag of legislation which was considered prohibitive to operators who wished to place structures (mainly tables and chairs) on the highway.
It is true that this Act regulated fees, removed the need for planning permission and shortened the consultation period from submission to grant of an application.
Yet the basic issues of requirements for space on the highway, very wide local authority discretion and interference and lack of flexibility have remained.
A colleague of mine remarked, in all seriousness, that it was actually harder in some local authority areas to obtain a pavement licence than a premises licence allowing the sale of alcohol seven days a week.
This is a bizarre situation made worse by the lack of challenge or formal right of appeal and the absence of a positive attitude, which looks at an application in terms of how it can assist an operator in providing tables and chairs outside (not all areas are suitable, of course), rather than how it can prevent or restrict.
The complexity is brought to life by many imaginative operators who want to do more outside on the pavement, for example a television set for the World Cup, a bar or an area providing food and almost certainly none of these would be allowed by any local authority on the highway.
When you throw into the mix the added complexity of street trading legislation, which would require a separate permission to sell items such as alcohol from the bar on the highway, and in many areas either the street would not be designated as suitable or the local street trading policy prevents the sale of alcohol altogether.
Unhelpful regulations
Operators are therefore left with a complicated and sometimes unhelpful set of regulations to try and steer through so that customers can enjoy eating or drinking seated at tables outside.
Also, local authorities can impose conditions, and many take advantage of this, such as requiring customers to be seated and to be served food by waiter/waitress service, meaning that, in theory, if it is a pub and I take a beer and sit down with it and do not eat there is a breach of the pavement licence condition, which could lead to enforcement and/or a refusal to renew the licence if it is noted on the next occasion.
This, in my view, is a principal area where there could be reform to assist the industry. I am not arguing for a free for all, which I accept would not work on the highway, but to reduce bureaucracy. To start with, a positive intent and to have sufficient people in the local authority to deal with these applications properly and to check premises are complying.
I would urge a simplified licensing approach for an area to be licensed only and let the operator get on with it (this used to happen in some areas under the Highways Act 1980 and its London equivalents).
There would need to be separate permission for anything other than tables and chairs, nothing affixed to the pavement and appropriate time limits, but then the operator is free to put in the tables and chairs and make arrangements as he sees fit.
If there are complaints or issues then the permission could be amended, revoked or not renewed.
I fear this may be too radical for many areas and, culturally, local authorities will struggle with the lack of control, but it would have a massive impact on the struggling hospitality industry, delivering both greater flexibility and a meaningful reduction in costs.
- James Anderson is a partner at Poppleston Allen
