Levelling-up and Regeneration Bill

Lord Young of Cookham Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, I shall also speak to the other amendments in this group that are similarly in my name, and I will give more than a nod to the other amendment in the group.

When it comes to pavements and pavement licences, the Bill has done nothing for pedestrians, those with access needs or those who simply want to rely on the primary purpose of the pavement. The primary purpose of the pavement is to get from A to B, be that for work, leisure, hospital appointments or whatever it may be—to go about one’s business on a clear, uncluttered, maintained pavement. I will not speak to all the amendments in this group but I ask the Minister to respond to all of them because each in turn raises important points when it comes to our ability, as members of our local communities, to use the pavements in our area.

The amendment that I want to spend most time on is Amendment 252, which addresses the consultation period when businesses seek to acquire a pavement licence to run part of their business on the pavement in front of their properties. The Government argue that this consultation period has been doubled from seven days to 14 from the Business and Planning Act we passed during Covid. In fact, what has happened is not a doubling of the consultation period but a halving of it, from 28 days in the Highways Act, which was always the period before Covid.

The seven-day consultation period is the wrong comparator to look at. When we debated the Business and Planning Act, it was clear that we were considering the balance between the needs of businesses and those of the local community. The need of businesses at that time was to acquire a pavement licence and to be able to have a business at all, as a consequence of the social distancing rules under Covid. That is in no sense the comparator now, which is simply, as it was pre Covid, for a business to extend its services on to the pavement, thus having additional business, not just a business or no business.

So it seems completely clear, fair and equitable, balancing the needs of businesses with those of all the members of the community, that the consultation period should revert to what it was pre Covid, in order to enable all members of the community to engage in a consultation when such pavement licences are sought. There are obvious and particular accessibility needs for certain groups within a community, and it is self-evident that to halve that consultation period from 28 days to 14 effectively excludes many people from participating in that consultation. Effective exclusion from consultation does not in any sense sound like levelling up.

In Amendment 252 I propose what I believe is a fairer compromise: to take the 28 days down to 21. The Minister may well argue, “What’s the difference between 14 days and 21?” It may well be the difference between individuals and large sections of our community being able to participate in that consultation and their being effectively excluded from such participation.

I will touch briefly on Amendments 256 and 257, which are linked in respect of the question of access and enabling people to travel from A to B, as the pavement was always intended to do. What is the Government’s problem with simply requiring businesses that may well have gained a licence to tidy up and pack away furniture from the pavement when it is not in use? Similarly, when it is in use, there should be some form of reasonably costed demarcation, be it tactile markings or physical barriers, to surround that seating area, which would benefit both those using the pavement and those using the seating area.

I fear that the Minister does not have much for me today, but I am afraid that in those circumstances the Bill will lead to a less accessible pavement. It will lead to people finding it increasingly difficult and sometimes impossible to access their local area and get where they need to go. It will mean local authorities missing out on potential income from the additional profits that businesses will be able to make on those pavements—when I say “those pavements”, I think we all agree that they are our pavements that our taxes have paid for.

I urge the Minister to think again and strongly to consider the amendments, not least the ones concerned with accessibility and the one that refers specifically to consultation, which would enable all the members of our community to participate fully in the question of whether they believe a pavement licence is good for their local community. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I commend the speech of my noble friend Lord Holmes of Richmond. Obstructions on the pavement are an issue not just for those with a visual impairment but for a wide variety of other users of the pavement. He rightly calls for a better balance between the needs of business on the one hand and the needs of pedestrians on the other, and he deserves a sympathetic response from the Minister.

Amendment 258, in my name and that of the noble Lords, Lord Faulkner and Lord Hunt, and the noble Baroness, Lady Northover, would introduce the requirement for all pavement licences to be smoke-free and so to contribute to the Government’s worthy ambition to make England smoke-free by 2030—an ambition we are currently on track to miss by nine years, according to Cancer Research UK. The House has previously expressed strong support for such a measure. Under the current pavement licensing rules, councils have two options on pavement smoking: to implement the national condition to make reasonable provision for seating where smoking is not permitted, or to go further and make 100% smoke-free seating a condition of licences at local level.

I have previously welcomed the current requirement, secured only after pressure from Members in both Houses who objected to the original proposal, which had no provision for non-smokers. But, although where we are is better than what the Government originally proposed, it does not go far enough.

When this amendment was debated in Committee, my noble friend Lord Howe defended the current arrangement, stating that

“it is important to allow local areas to make the decisions that are right for them”.—[Official Report, 22/5/23; col. 661.]

I note in passing that, when I asked for that flexibility this morning on planning fees, my noble friend robustly rejected it. Although I understand the principle behind this position, in practice it places a significant burden on councils, which must provide reasonable justification for introducing a smoke-free condition on a case-by-case basis.

This is the point made by local councillors from the London Tobacco Alliance, who this week have written to the Secretary of State for Levelling Up, Housing and Communities, calling on the Government to introduce a national 100% smoke-free pavement licence condition. This would reduce the amount of bureaucracy faced by councils and help to protect non-smokers, especially children and of course those who work in the hospitality industry, from toxic tobacco smoke.

This amendment is also supported by the Local Government Association, the cross-party national membership body for local authorities, which has said that 100% smoke-free pavement licensing

“sets a level playing field for hospitality venues across the country and has a public health benefit of protecting people from unwanted second-hand smoke … If smoking is not prohibited, pavement areas will not become family-friendly spaces”.

Under the current system, implementation of smoke-free conditions is highly inconsistent across the country, meaning that non-smokers, children and hospitality staff will continue to be exposed to second-hand smoke. That is why Dr Javed Khan OBE’s independent review of Smokefree 2030 policies, commissioned by DHSC and published last year, recommended that smoking be prohibited on all premises, indoors and out, where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present.

This recommendation has strong public support, with two-thirds of the public polled in 2022 saying they wanted smoking banned in the outdoor seating areas of all restaurants, pubs and cafés. Fewer than one in five opposed a ban. This was a large sample of more than 10,000 people, carried out by YouGov for Action on Smoking and Health. Some councils are doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. The experience of these councils shows that smoke-free seating has proved popular with the public, leading to high levels of compliance, and has not been shown to cause a decrease in revenue.

When South Tyneside Council surveyed opinion on 100% smoke-free seating among local café proprietors, it did not receive a single objection. A number of proprietors were very supportive of the more consistent approach, which is easier to comply with and requires little or no enforcement. The director of public health in South Tyneside said:

“Creating and supporting smokefree environments benefits individuals, the wider community and businesses—supporting those trying to quit the habit, promoting positive role modelling for children and young people, and reducing the harm from second-hand smoke”.


This amendment is an opportunity to implement Dr Khan’s recommendations and take a small but important step forward towards a smoke-free 2030. I hope that my noble friend, who took a keen interest in preventative medicine when he was a Health Minister, feels able to support this modest but popular amendment. If, by any chance, the dreaded word “resist” is at the top of his folder, can he say whether primary legislation is required if, in the future, the House wants to revisit this issue if we do not achieve this progressive measure this evening?

[Baroness Northover (LD)]

I express support from these Benches for the amendments in the name of the noble Lord, Lord Holmes, which he put very cogently. Pavement licences were introduced in the pandemic but have become a feature of our high streets, so we must make sure that approaches are inclusive, addressing the needs of those with disabilities or those, for example, with children in pushchairs.

I put my name to Amendment 258 and I am pleased to be speaking in support of it. It is led by the noble Lord, Lord Young of Cookham, who made the usual very strong case. It is disappointing to see that the Government have not taken the opportunity presented by the Bill to make all pavement licences smoke-free, as recommended—as we have just heard—in last year’s Khan review of tobacco policies. This is despite the clear majority of adults in England supporting a smoking ban in outdoor seating areas of restaurants, pubs and cafés. In areas such as Manchester, where 100% smoke-free pavement licences have been implemented, they have had great success and have been very popular among businesses and those using these facilities.

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[Earl Howe (Con)]

My Lords, in Amendment 248 my noble friend Lord Holmes of Richmond brings us back to the use of roads adjacent to pavements that have been granted a licence. I can assure him that there are already clear processes by which a local authority can consider the pedestrianisation of a street, including to facilitate outdoor dining, with vehicular access a relevant consideration in those processes: this is not an issue that will be glossed over. Pavement licences can then be granted if the conditions are seen to be right and, in recent years, we have seen the success of this in practice across the country.

The noble Baroness, Lady Pinnock, returned to the question of new powers for local authorities to charge for the use of the pavement. She is probably aware that the Business and Planning Act 2020 does not give local authorities a specific power to charge ongoing rent for the use of the pavement, and the aim behind that measure is to support businesses by making it significantly cheaper to gain a licence, compared to the previous route. The measure fully funds local authorities’ costs for providing this service: we are not looking to impose additional costs on businesses at a time of rising costs.

My noble friend’s Amendments 249 and 250 concern the fees to be charged for pavement licensing. The Government feel very strongly that we must keep costs reasonable and consistent for businesses. At a time when their costs are rising, we should not place additional financial burdens on businesses still recovering from the pandemic. The fee caps in the Bill have not been arrived at by accident but are the result of close work with local authorities, businesses, leaders from the hospitality sector and communities. They reflect the actual costs of processing, monitoring and enforcing pavement licences. I also make the point, on Amendment 250, that the direct attribution of profit to the granting of a licence would not be a simple matter.

As for my noble friend’s proposal in Amendment 253 for deemed rejection rather than a deemed granting of a licence in the event of no decision being made within the determination period, I say to him that it would not be right to punish applicants for delayed local authority decisions. Deemed consent encourages local authorities to make decisions while ensuring that the local and national conditions which would otherwise have applied are applied and can then be enforced, including by the removal of the licence.

My noble friend’s Amendment 251, changing the start of the consultation period to the time at which a receipt has been sent to the applicant, would add an additional and, in our view, unnecessary step and potentially delay the process.

Amendments 252 and 255 would likewise increase both the consultation and determination periods that apply. We have listened carefully to the views of local authorities, communities, businesses and other concerned organisations and believe that our proposals strike the right balance, protecting the ability of everyone to be heard while ensuring that businesses receive a decision in a reasonable timeframe.

I turn to my noble friend’s Amendments 254 and 256 dealing with the free flow of pedestrians and the conditions which may be imposed by a licence. The Business and Planning Act 2020 already requires that local authorities take this into consideration, preventing licences being granted where they would preclude entry on to or passage along the highway, or normal access to premises adjoining the highway. On Amendment 256, the Act already provides powers for local authorities to impose conditions such as these, and we are anecdotally aware of local authorities having done so. As such, we do not consider that specific reference to the discretion for local authorities to do so is needed. These are rightly matters determined locally.

The noble Baroness, Lady Taylor, suggested that the Government’s wording in this area was not quite tight enough. We have made it clear in the pavement licence guidance that, when setting local conditions and determining applications, local authorities should consider the need for barriers to be put in place to separate furniture from the rest of the footway so that people who are visually impaired can navigate around the furniture. As recommended by the RNIB, we have highlighted that best practice involves using measures such as colour contrast and a tap rail for long cane users. However, this will need to be balanced to ensure that any barriers do not inhibit access for other street users, such as people with mobility impairments, if they are creating a further obstacle in the footway.

On Amendment 257, I thank my noble friend for raising the very important issue of accessibility and the impact of pavement licensing on disabled users of the highway. In considering whether to grant a licence, Section 3(7) requires particular regard to be given to the needs of disabled people and to guidance on this matter published by the Secretary of State. That guidance, developed in close collaboration with the Guide Dogs for the Blind Association and the RNIB, includes details of minimum accessibility width considerations for disabled persons. We believe that the determination as to the best way to meet the needs of disabled persons is best made locally, taking account of the specific circumstances for that pavement, particularly since physical barriers may on occasion hinder accessibility, as I have already alluded to.

Finally, Amendment 258, in the name of my noble friend Lord Young of Cookham, would create a national condition banning smoking in pavement licensed areas. Of course I understand very well the strength of feeling expressed by my noble friend and a number of noble Lords on the nuisance caused by the smoking of tobacco. Both my noble friend and the noble Baroness, Lady Northover, called for pavement licensing to be made smoke-free. My noble friend stressed the need to protect the interests of non-smokers in particular.

I can tell the noble Lord, Lord Faulkner, that the Government fully recognise the importance of this issue for public health, but we also recognise the need to do what is reasonable and proportionate in all the circumstances. Our guidance already makes it clear that pavement licences require businesses to make reasonable provision for seating for non-smokers to ensure choice for customers. It is also clear that ways of meeting this requirement could include clear “No Smoking” signs, the removal of ashtrays in smoke-free areas and a minimum 2-metre distance between smoking and non-smoking areas, wherever possible. Local authorities are also able to consider setting their own conditions, where appropriate, and where local decision-makers believe it is reasonable to do so. We are aware that a number of councils across the country have put in place local conditions with the effect that noble Lords are calling for. As my noble friend Lord Naseby rightly said, it is perfectly possible for councils to do this, and we think it is better for decisions of this sort to be taken locally so that individual circumstances are taken into account.

I recognise the intention behind my noble friend’s amendment, which is a benign intention. However, I think he would concede that this is an issue wholly different in kind from that of planning fees, where it is incumbent on government to ensure financial fairness across the country. We consider it right that this is a decision made locally, taking into account the representations received, rather than imposed nationally.

[Lord Young of Cookham (Con)]

Before my noble friend sits down, he has said that this is a decision best taken locally. But that is not what the Local Government Association wants—it wants it to be taken nationally.

[Earl Howe (Con)]

Well, my Lords, the Government will continue to listen to the Local Government Association very carefully in this connection. I can only say that we are not persuaded yet that this move would be the right one, having consulted extensively with all stakeholders involved.