Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021

Lord Greenhalgh Excerpts

Thursday 8th July 2021 Grand Committee

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)]

My Lords, the regulations we are considering today were laid in draft before this House on 8 June. If approved and made, they will extend the temporary pavement licence provisions for 12 months to 30 September 2022 and will come into effect the day after they are made.

The temporary pavement licence provisions create a faster, cheaper and more streamlined consenting regime for the placement of removeable furniture, including tables and chairs, on pavements outside premises such as cafes, bars, restaurants and pubs. These measures have been popular and very successful in supporting businesses, making it easier for pubs, restaurants and cafes to facilitate al fresco dining with outside seating. It is vital that we continue to support the hospitality sector by extending these provisions for 12 months, as it has been one of the hardest hit as a result of the coronavirus.

The sole purpose of the regulations is to change the four references to the expiry date in the legislation from 30 September 2021 to 30 September 2022. The regulations do not change any other part of the pavement licence provisions, so the process for applying for a licence during the extended period will not change. Subject to the regulations being approved and made, businesses will be able to apply for a licence under the process set out in the pavement licence provisions in the Business and Planning Act for the extended period until 30 September 2022.

The regulations do not automatically extend licences that have 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. Local authorities are encouraged by guidance to take a pragmatic approach in applying the extended provisions, so that it is as convenient as possible for businesses to apply for a licence during the extended period. As the process for applying for a licence under the extended period will remain unchanged, I will briefly remind noble Lords of that process.

All licences are subject to a 10-working-day determination period, including a five-working day public consultation period, excluding public holidays, starting the day after the application is sent electronically to the authority. If the local authority does not determine the application before the end of the determination period, the licence will be deemed to have been granted for a year—or, if sooner, until 30 September 2022—and the business can place the proposed furniture, such as tables and chairs, within the area set out in the application for the purpose or purposes proposed.

Licence application fees will be set locally but are capped at a maximum of £100. Again, these fees are unchanged from what they are for licence applications under the current temporary provisions in the Business and Planning Act 2020. All licences will be subject to a national no-obstruction condition and smoke-free seating condition as well as any local conditions set by local authorities.

The grant of a pavement licence only covers the placing of furniture on the highway. A pavement licence does not negate the need to obtain approvals under other regulatory frameworks such as alcohol licensing. The Government have also laid a separate statutory instrument to extend the temporary alcohol licensing amendments.

Once a licence is granted, or deemed to be granted, the applicant will also benefit from deemed planning permission to use the highway land for anything done pursuant to the licence while the licence is valid—for example, using furniture to sell or serve food or drink supplied from, or in connection with relevant use of, premises.

The pavement licence regime in the Business and Planning Act did not replace the regime in Part VIIA of the Highways Act 1980; rather, it sat alongside it. This remains the case during the period of validity of the 2020 Act provisions as extended by this statutory instrument. Applicants may apply for a licence under Part VIIA as an alternative if they wish to do so for any reason.

These regulations will enable food and drink hospitality businesses to continue to obtain a licence to place furniture on the highway outside their premises quickly and cheaply. As I previously stated, this extension is considered necessary and vital, as it will provide businesses with much needed certainty to help them to recover economically and will support them in planning for the extended period. To explain just how hard the sector has been hit, evidence from trade organisations and other sources has indicated significant financial losses and wider economic pressures faced by the hospitality industry. The Office for National Statistics reported in July that more than half of businesses in the accommodation and food services industry had experienced a fall in turnover, compared with normal expectations for this time of year—more than any other industry.

I firmly believe these regulations will bring essential economic support out of the pandemic for many food and drink businesses, by enabling extended outdoor capacity for serving food and drink. To support local authorities and businesses with the implementation of the regulations, we will publish an updated version of the pavement licence guidance when the regulations are made. If these regulations are not introduced, there is a real risk that we will undermine the steps that food and drink hospitality businesses have taken to recover from the economic impacts they have suffered as a result of coronavirus.

All of us in government have enjoyed pubs, cafes and restaurants being open again, following coronavirus lockdown restrictions. The temporary pavement licence measures are just some of several measures that the Government have introduced to support hospitality businesses to reopen safely, enabling businesses across the country to serve their local communities. Since introducing a simplified route for pubs, restaurants and cafes to obtain a temporary pavement licence, we have heard of many examples of local businesses being able to increase their outdoor capacity quickly and at low costs. The draft regulations that we are debating today will allow al fresco dining and drinking to remain a reality for these businesses and provide much needed certainty for another year. I commend this instrument to the Committee, and I beg to move.

--- Later in debate ---

[Lord Greenhalgh (Con)]

I thank all noble Lords for their contributions, which have given us a very interesting debate on these draft regulations. I was particularly impressed by the distinguished former leader of the city of Leeds trying to introduce café culture in the 1990s, well ahead of its time. The way we consume alcohol in this country, standing at a bar or outside, is very different to the café culture we see on the continent of Europe. It is good that we have seen an increase in the latter approach to our leisure activities as a result of the pandemic, as the noble Baroness, Lady Wheatcroft, referred to.

We have been discussing an essential extension of the temporary pavement licence provisions in the Business and Planning Act 2020 for 12 months to 30 September 2022. As previously outlined, the regulations continue our support for the hospitality sector’s economic recovery and are vital to provide certainty for businesses in planning for al fresco dining for the next year. I am grateful to noble Lords for raising a number of important points on how this will operate and will try to respond to as many as I can.

First, I want to make it clear to the noble Baroness, Lady Blake, that there has been no change in policy. We have not made a decision on the future of the temporary provisions; it would be premature to make any commitments on potential changes to the policy in future. However, I reassure noble Lords that we will continue to engage with stakeholders. We are committed to ensuring that the needs of all highway users are taken into account.

I turn to the issues raised by the noble Lords, Lord Faulkner of Worcester and Lord Bradshaw, and the noble Baroness, Lady Wheatcroft, about smoking and the fact that there is not effectively a ban on it. The temporary pavement licence legislation includes a “smoke-free” seating condition—that concession was mentioned by my noble friend Lord Young—and there must be reasonable provision for seating where smoking is not permitted. This condition seeks to ensure customers have greater choice, so that smokers and non-smokers are able to sit outside.

I appreciate the suggestion of the noble Lord, Lord Shipley. I recognise that things would be different were there to be a change on a permanent basis as opposed to this simple extension of the current provisions.

In response to my noble friend Lord Young, on his comment about the letter from the Secretary of State to Manchester City Council, it is of course right—as mentioned in the debate—that local authorities have condition-setting powers. I know as a councillor of 16 years that they have and always have had such local discretion. They can set those conditions where appropriate, and some local authorities have used this power, including in this instance Manchester City Council. I reassure my noble friend that all correspondence from the department on this matter will remain in line with what has been agreed in the legislation.

The noble Earl, Lord Clancarty, and my noble friend Lady McIntosh of Pickering rightly raised accessibility and ensuring that pavements remain accessible to everyone. It is important that, while supporting the hospitality industry, we achieve that objective. The pavement licence guidance makes it clear that in most circumstances 1.5 metres of clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway. In response to the noble Earl, I point out that we have worked with the RNIB and Guide Dogs UK to update the pavement licence guidance, which will be published alongside the extension regulations. This update will include a section to emphasise to local authorities that, as Covid restrictions are eased, extra care should be taken to ensure that national and local requirements around accessibility are still being met.

In answer to the noble Earl, Lord Clancarty, and the noble Baroness, Lady Blake of Leeds, we have undertaken work with stakeholders to understand the impact of an extension across a range of authorities and different groups, such as the RNIB and Guide Dogs UK, taking into account the impact the provisions have had over the past year.

My noble friend Lady Gardner of Parkes and the noble Baronesses, Lady Wheatcroft and Lady Blake, all mentioned local authority resourcing. In response to the noble Baroness, Lady Wheatcroft, I was interested to hear about the granting of a licence and then using it as a way essentially to charge for other council services unnecessarily. In my experience, that would not normally be done by local authorities. Effectively, most of their moneys are raised either through tax or direct grant, and they would not normally seek to generate income. However, I would be very happy to understand the specific instances that she referred to. It would be concerning if it happens, but it seems very much out of character.

On local authority resources, we are aware that these provisions have a significant impact: not equally, but on some local authorities. If we compare parts of suburban London to the City of Westminster, we are talking about a completely different quantity of licences that will be granted. It is therefore absolutely right that we undertake a full new burdens assessment, and we will fund any new burdens as a consequence of the temporary pavement licence measures in line with the new burdens doctrine.

In response to my noble friend Lady McIntosh on what happens to the consultation timeframe when the regulations cease, I can reassure her that we will revert to a minimum of 28 days’ consultation as set out in Part VIIA of the Highways Act from the 10 days in the temporary regulations.

I was interested to hear about the ban on firepits and gas heaters raised by my noble friend Lady Wheatcroft—I call her my noble friend because that is what I consider her to be. I understand those concerns, but this is not a matter for these regulations. I think it is something that we see on the continent of Europe, and with our climate, would be particularly helpful.

In conclusion, we are extending the temporary pavement licence regulations because we believe it is necessary to support food and drink hospitality businesses by expanding their outdoor capacity, so continuing to support their economic recovery out of the pandemic. This is particularly important when we consider just how badly affected by the pandemic this sector has been—there is no doubt about that.

These temporary pavement licence measures have already been very successful in supporting the hospitality sector so far, as a number of noble Lords have commented. Extending the provisions will enable this success to continue and will provide much-needed certainty in the sector’s planning for the coming year. I commend these regulations to the Committee.

Motion agreed.