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Wake-up call: Understanding the law for alfresco dining 

18 June 2020
Wake-up call: Understanding the law for alfresco dining 

With official guidance on reopening yet to arrive, Gareth Hughes takes a look at the current regulations and applications for using outside space

The problem

As businesses with outside space are likely to be permitted to open sooner, what can I do to maximise the external areas surrounding my pub or restaurant? I'm keen to facilitate some alfresco dining, but what permissions do I need before I do so?

The law

In the first instance a permit will be required under the Highway Act 1980, because in the vast majority of cases the pavement immediately outside a bar or restaurant will belong to the Highway Authority. Placing tables and chairs on the pavement will constitute an obstruction to the highway, preventing pedestrians and those in wheelchairs from using its full width and in some cases placing them in danger if they have to walk into the road. A permit is required to make that obstruction lawful.

Second, planning permission will be required as the placement of tables and chairs on the highway can be regarded as a material change of use for the purposes of the Town and Country Planning Act 1990.

Third, in Greater London, the London Local Authorities Act 1990 requires a street trading licence when services are provided in a street by a restaurant or bar. Such services would include waiter service to tables outside premises.

Expert advice

In order to place your tables and chairs on the pavement outside your premises, you will need to obtain a Highways Act permit to allow for the obstruction. The council will need to be satisfied that, depending on the width of the pavement, there will be enough room for pedestrians to pass by without having to walk into the road. This is particularly important for blind users as well as those in wheelchairs and those with prams and pushchairs.

Most councils will have a policy on the numbers of tables and chairs they will allow outside, but if the pavement is particularly narrow outside the premises then it may be that they cannot grant a permit. If it is permitted, then be prepared to submit detailed drawings of the layout with full dimensions and stating the numbers of tables and chairs required. The council will need to allow plenty of space for passers-by.

The council may also require you to obtain planning permission for the change of use of the pavement from a walkway to a restaurant area. Planning applications will need to be submitted well in advance of when you wish to use the area. Such applications can take as long as six months, so be prepared to apply very early. This can be further complicated because in many areas in England and Wales the planning authority is different to the Highway Authority, which grants the highways permit mentioned earlier.

In all cases do your research with the local councils and make all the necessary applications well in advance

In the London boroughs (apart from the City of London) you may also require a street trading licence in order to provide services on the highway in front of your premises. This can also be a time-consuming process if there are objections to the application and a hearing may be necessary in front of the council's licensing committee.

In all cases, do your research with the local councils and make all the necessary applications well in advance.

To-do checklist

  • Check with the local authority which permissions you require – a highways permit and/or planning permission, and/or in London a street trading licence;
  • Prepare applications fully and explain the nature of the operation;
  • Prepare a drawing of the area with full dimensions of the tables and chairs area compared to the overall dimensions of the pavement or walkway;
  • Show clearly the numbers of tables and chairs proposed;
  • Pictures of the design of the tables and chairs may assist some local authorities; and
  • Set out your management policies for external areas clearly – the matter may need to go to a committee for decision and you will need to persuade councillors that use of the outside area will not unduly disturb residents.

Beware

If you fail to obtain any of the permissions referred to above, the penalties can be severe, saddling you with a criminal record.

There are three offences that could be charged for unlawfully placing tables and chairs on the highway: a fine of up to £1,000 under the Highways Act for obstruction of the highway; the service of enforcement notices under planning laws requiring the change of use to cease breach, which could result in fines and enforcement action; and, in London, breach of street trading laws could result in a fine of up £1,000. The local authorities also have power to remove items on the highway and may seize the tables and chairs and other street furniture.

Contact

Gareth Hughes is a barrister at Keystone Law

gareth.hughes@keystonelaw.co.uk

Photo credit: Shutterstock

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