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Pavement Licences and Off-Sales: important new licensing changes to come into effect imminently

01.07.2020

By Matt Lewin

On 25 June 2020, the Government published the Business and Planning Bill which will make two significant licensing changes to support business as lockdown measures are relaxed:

    • the creation of a new (temporary) "pavement licence" to be issued by district and London borough councils authorising the use of the public highway by pubs, cafes, bars and restaurants; and
    • any premises holding a licence authorising on-sales of alcohol is deemed to also authorise off-sales.

The Bill completed all three stages in the House of Commons on 29 June 2020 and is expected to be made law this week.

Pavement licences

There is already provision in the Highways Act 1980 for the issue of "permissions" for the provision of refreshment facilities on a public highway (section 115E). This process is administered by highway authorities and tends to be quite slow – for instance it requires a 28 day consultation period.

Therefore the government has created a new form of licence: the pavement licence.

A pavement licence authorises the licence holder to put removable furniture on part of the public highway (clause 1(2)) for one of two purposes:

    • for the licence holder to sell or serve food or drink from their premises (clause 1(3)(a)); or
    • for customers to consume food or drink from the licence holder's premises (clause 1(3)(b))

The food or drink must be supplied from premises which are or are proposed to be used:

    • as a public house, wine bar or other drinking establishment (clause 1(4)(a)); or
    • otherwise used for the sale of food or drink for consumption on or off the premises (clause 1(4)(b))

In other words, café, bar and restaurant owners can use a pavement licence to offer an al fresco service to customers who, were it not for social distancing requirements, would be consuming food and drink inside the premises.

It is clear from the draft Bill that local authorities are expected to do a lot of work in preparation for applications for pavement licences in a very short period of time, including:

    • adopting standard (electronic) application forms (clause 2(1)(a) and (b))
    • deciding on an appropriate fee (of no more than £100) (clause 2(1)(c))
    • running a public consultation of 7 days beginning the day after receipt of the application (clauses 2(3) and (4))
    • consultation with the highway authority and any other stakeholders (clause 3(2))
    • making formal determinations of applications after the consultation period has expired (clause 3(3))
    • adopting standard conditions (clause 5)

Authorities will also need to be prepared to exercise enforcement powers (clause 6).

Risks to public health and safety are explicitly highlighted as a ground for revoking a pavement licence (clause 6(3)(b)(i)). Therefore, among other matters, authorities may want to consider including as a standard condition that tables must be located "1m+" apart.

Clause 7(6) expressly applies the power (in section 149 of the Highways Act 1980) to remove furniture which is placed on the highway under a pavement licence if it causes a nuisance or danger.

Clause 7 removes the requirement for planning permission (clause 7(2)) or a street trading licence (clause 7(3)). In short, anything which is authorised to be done under the terms of a pavement licence is deemed also to be authorised under the planning and street trading regimes.

The government has published draft guidance on the pavement licensing regime which also includes a "national condition" which is deemed to be attached to all pavement licences. The explanatory notes to the Bill may also help with interpretation.

The Bill does not include any consequential amendments to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, meaning that the grant of pavement licences is an executive function and not the responsibility of the Licensing Committee (section 9D of the Local Government Act 2000). This means that authorities should carefully consider their schemes of delegation to ensure that officers have delegated authority to make decisions on the issue and enforcement of pavement licences.

All pavement licences must be granted for a minimum of three months and will automatically lapse on 30 September 2021 (clause 4(1)).

Deemed authorisation for off-sales

Clause 11 of the Bill will insert a new section 127F into the Licensing Act 2003 which, by subsection (1), will apply to all premises licences which (a) have effect on the day the section comes into force and (b) which authorise "on-sales only" (i.e. the sale by retail of alcohol for consumption on the premises only).

Provided that no "disqualifying event" has occurred in relation to the licence within the last three years, section 127F(2) will deem that the licence is to be treated as if it has been varied so as to authorise off-sales, subject to the condition that every off-sale must be made during the premises' licensed hours.

Section 172F(3) disapplies any conditions in the existing licence which would otherwise be inconsistent with off-sales.

A "disqualifying event" means one of three things:

    • the licensing authority has refused to grant a premises licence authorising off-sales (section 127F(8)(a));
    • the authority has refused to vary the premises licence so as to authorise off-sales (section 127F(8)(b)); or
    • the licence was varied or modified so as to exclude off-sales (section 127F(8)(c))

There is also provision in (sections 127F(4)-(5)) for premises licence which make some allowance for off-sales. Premises which are already authorised for off-sales but subject to certain restrictions will see those restrictions temporarily lifted by section 127F(5). The relevant restrictions are:

    • a condition preventing off-sales at any time when the premises are open for the purposes of selling alcohol for consumption on the premises (section 127F(4)(a));
    • a condition preventing off-sales in open containers (section 127F(4)(b)); and
    • a condition preventing off-sales where it is a sale for delivery (section 127F(4)(c)

The summary review procedure (including interim steps) is replicated so that there is now a procedure for "summary off-sales reviews" (sections 127G-127K) in which interim steps must be determined within 48 hours of receipt of the application (section 127G(3)(a)) and the full review completed within 28 days (section 127G(3)(b)).

Unlike the existing summary review procedure, any responsible authority may apply for a summary off-sales review on any ground relevant to the licensing objectives (section 127G(1)).

There is a right of appeal against decisions on a summary off-sales review (including on interim steps) in new paragraphs 8C and 8D of Part 1 of Schedule 5 to the Licensing Act 2003.

Again, these changes are temporary and will automatically expire on 30 September 2021 (section 127F(10(c)).

Matt Lewin is a member of Cornerstone Barristers' Licensing Team. He recently spoke at the Institute of Licensing's Now and Next webinar on drug testing and licensed premises.