Licenses and Consents for Outdoor Dining

Good news for the hospitality sector on an extension to the temporary measures
Simon Barry, Associate Director, Boyer (Cardiff)

As the UK embraces the exceptional summer weather and with the post-pandemic trend for alfresco dining being maintained, the demand for outdoor seating is of significance importance to the continued recovery of the hospitality sector.

Currently, within England, a temporary pavement licensing regime is available through the Business and Planning Act 2020 in response to COVID-19. The temporary pavement licence requires content from the local planning authority, following a fast-tracked application, at a reduced cost.

Consequently the fee for applying for a licence is capped at £100, and the determination period is reduced to 10 working days as set out in the Government Guidance, consisting of five working days for public consultation, and then five working days for the local planning authority to consider and determine the application. The Guidance notes that, ‘If the local authority does not determine the application within the 10 working day 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’.

Until 22 July 2022, this temporary measure had an expiry date of the 30 September 2022, beyond which the temporary licence would no longer be valid.  If businesses wanted to extend their use of pavement furniture beyond the end of September 2022, they would have needed to reapply under Part 7A of the Highways Act 1980 or equivalent provisions in any Local Act.

Within Wales, pavement licenses are provided in a combination of Memorandum of Agreements which, like England, seeks to streamline the process and have a consultation period of 28 days or via the more traditional Part 7A of the Highways Act 1980.

Fortunately that temporary measure has been extended by a further year, following a recent announcement.

The importance of the external pavement seating to the recovery of the hospitality industry was highlighted in the recent Queen’s Speech, which noted that there will be a move towards making the streamlined pavement license process permanent. The new Levelling Up and Regeneration Bill, published in May, proposes that the existing temporary measures on pavement licensing are made permanent. 

While it is encouraging to see that the Government is intending to make the changes permanent, this will not be confirmed until the Bill is enacted, thought to be in early 2023. However, the recent confirmation of the extension to the temporary licence under the Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2022 is a positive.

The importance of the extension was considered in Grand Committee debate at House of Lords (14 July 2022) in which the significant benefits that the external pavement seating provides was clearly highlighted.

Baroness Bloomfield of Hinton Waldrist noted that, ‘extending the temporary pavement licences provisions through the regulations is necessary to support hospitality businesses. This is particularly important when we consider just how badly hit by the pandemic the sector has been, and these temporary pavement licence measures have already been very successful in supporting the sector in its economic recovery. Extending the provisions will enable this success to continue and provide much-needed certainty to businesses in their planning for the coming year.’

Prior to the new Act the temporary measures remain in place until 30 September 2023.

But the good news for the hospitality sector is that following the announcement on 22 July, there will be no requirement to bring chairs and tables inside on 1 October as we had feared, thought the regulations do not automatically extend licences that have already been granted under the current provisions, so businesses will need to apply for a new licence if they wish to have one in place during the extended period.

It is hoped that by the time the new extension expires, it is expected that the Levelling Up and Regeneration Act will have made these allowances permanent.