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The Business and Planning Act 2020 introduced a new, streamlined process for businesses to place temporary furniture such as tables and chairs, counters and stalls, umbrellas and barriers on the highway. This is to enable businesses such as cafes, restaurants, bars and pubs to serve food and drink for consumption outside and help to ensure proper social distancing. This new process will be in place until the end of September 2021.

In Mid Devon, businesses would have previously applied to Devon County Council for a street café licence. However, under this new process, businesses can now apply to us for a pavement licence.

 

Our Application for the Grant of a Pavement Licence form contains important information about the application process which you should read carefully before completing and submitting the form.

Once you've completed the form, you should email it to licensing@middevon.gov.uk, along with any relevant paperwork that is required. We'll then ring you to take payment of the application fee, which is £100.00.

As part of the application process, you must place a notice on the relevant premises so it's visible and legible to the public, and this must be done on the day that the application has been submitted. You should use our template for your notice.

In addition to this, please comply with our standard conditions. These apply to all pavement licences (including those that are deemed to have been granted), along with the required ‘national’ conditions, which at the time of writing, are a no-obstruction condition and a smoke-free seating condition. We may also apply additional conditions which are considered necessary on a case-by-case basis.

Once an application has been correctly submitted we will, as required, consult with Devon County Council (Highways). In addition to this, we'll also consult with the Police and our own Environmental Health and Health and Safety teams, and any other body that we believe to be necessary.

The entire licensing process should take two weeks - there's a seven day period for representations to be made and following this, there's a further seven day period in which we need to make a decision. It should be noted that both seven day periods don't include:

  1. Christmas Day;
  2. Good Friday, or;
  3. a day which is a bank holiday.

We've also produced some guidance on pavement licences.

Current applications are available to view below, along with the final date by which representations must be submitted:

There are currently no applications.

If you're considering making a representation, you should first be aware that if granted, the licence would be subject to standard conditions, (which are available to view above).

If you wish to make a representation, it must be submitted in writing to licensing@middevon.gov.uk. It must be submitted during the consultation period (and no later than the final date for representations).

Representations should contain the following information (as a minimum):

  • The name, address and contact details of the person / body making a representation
  • Reasons for the representation
  • Any accompanying information / evidence which supports the representation
  • Any suggested amendments to the application (i.e. times / conditions ) that may alleviate concerns about the application

Anonymous representations will not be accepted.

A list of issued licences can be found below. Please be aware that although this information will be updated as frequently as possible, it is not a ‘live’ document.

There are currently no licences to view.

If a premises with a pavement licence is causing an issue (i.e. creating a public health or safety risk, causing an obstruction, creating a nuisance or anti-social behaviour), please send the details to licensing@middevon.gov.uk.

Please provide your name, address and contact details so our Licensing Team can make contact with you if required.

The fee is £100 for everyone, no matter how big or small your premises is.

Licences can only be granted in respect of highways listed in section 115A(1) of the Highways Act 1980. Generally, these are footpaths restricted to pedestrians or are roads and places to which vehicle access is restricted or prohibited.

Highways maintained by Network Rail or over the Crown land are exempt (so a licence cannot be granted). There's no definition of 'adjacent' in the legislation and therefore, the Council define this to be very near, next to or adjoining (although each case will be assessed on its own merits).

if the area where you wish to gain a licence is not immediately adjoining your premises, please contact us before making your application.

Applications where this applies may be approved providing there are no concerns relating to health and safety, public amenity or accessibility, and that an applicant has full responsibility for the furniture. You'll be expected to provide written confirmation of permission from your neighbour in these instances.

If the area where you wish to gain a licence is not immediately adjoining your premises, please contact us before making your application. Applications where this applies may be approved providing there's no concerns relating to health and safety, public amenity or accessibility, and that an applicant has full responsibility for the furniture.

Our Health and Safety team will be particularly interested in the measures you plan to implement to mitigate the risk to the public from crossing the road from your establishment to any tables and furniture (particularly for licensed premises selling alcohol), and therefore you should provide us with a copy of your documented risk assessment at the time of making your application.

No. Once a licence is granted, or deemed to be granted, the applicant will also benefit from deemed planning permission to use the land for anything done pursuant to the licence while the licence is valid.

It's important to note that the granting of a pavement licence only permits the placing of furniture on the highway. Other regulatory frameworks still apply, such as the need for alcohol licenses and the need to comply with registration requirements for food businesses.

If the applicant has a Premises Licence for on-sales under the Licensing Act 2003, the Business and Planning Act 2020 also brought in measures to allow for a temporary period of off-sales up until 30 September 2021. A variation will not be required, and if there are conditions on a licence pertaining to off-sales, these are removed. We suggest that applicants refer to the Government's guidance for more detail surrounding these changes. 

Anything which is authorised to be done under the terms of a pavement licence is deemed also to be authorised under the street trading regime.

We may:

  • 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
  • Refuse the application

The no-obstruction condition is a condition whereby the licence must not have the effects set out in section 3(6) of the Business and Planning Act 2020. When determining whether furniture constitutes an unacceptable obstruction in light of the no-obstruction condition, the provisions require that local authorities consider the needs of disabled people. In order to do this, the council will consider the following matters when setting conditions, determining applications (in the absence of local conditions), and when considering whether enforcement action is required:

  • Section 3.1 of Inclusive Mobility sets out a range of recommended widths which would be required, depending on the needs of particular pavement users, but is clear that in most circumstances 1,500mm clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway;
  • any need for a barrier to separate furniture from the rest of the footway so that the visually impaired can navigate around the furniture, such as colour contrast and a tap rail for long cane users. In some cases, it may be appropriate to use one or more rigid, removable objects to demarcate the area to which the licence applies, for example wooden tubs of flowers. However, this will need to be balanced to ensure any barriers do not inhibit other street users, such as the mobility impaired, as such barriers may create a further obstacle in the highway;
  • any conflict of street furniture with the principal lines of pedestrian movement particularly for disabled people, older people and those with mobility needs. The positioning of furniture should not discourage pedestrians from using the footway. The available route must be entirely clear and not pass through an area with tables and chairs;
  • so that where possible furniture is non-reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind, and thereby cause obstruction – for example, the local authority could refuse the use of plastic patio furniture, unless measures have been taken to ensure it is kept in place.

Section 149 of the Equality Act 2010 places duties on local authorities, to have due regard to:

  • the need to eliminate unlawful discrimination;
  • advance equality of opportunity between people who share a protected characteristic and those who don’t, and;
  • foster or encourage good relations between people who share a protected characteristic and those who don’t.

The national smoke-free seating condition seeks to ensure customers have greater choice, so that both smokers and non-smokers are able to sit outside, in order to protect public health by reducing risks of COVID-19 transmission.

It's important that businesses can cater to their customers’ preferences. The Business and Planning Act 2020 imposes a smoke-free seating condition in relation to licences where seating used for the purpose of consuming food or drink has been, (or is to be) placed on the relevant highway. The condition requires a licence-holder to make reasonable provision for seating where smoking is not permitted. 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 2m distance between non-smoking and smoking areas, wherever possible

Further, businesses must continue to have regard to smoke-free legislation under The Health Act 2006, and the subsequent Smoke-free (Premises and Enforcement) Regulations 2006.

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