David Lucas

Partner

Licensing


It is not just the weather that controls the use of an outdoor area

David Lucas

It is summer so, weather permitting, an outside area for drinking or dining should be an attraction to customers. It is important to remember that an external trading area may require authorisation of one form or another. 

Private Property 

If the external area is located within the boundary of the premises it would be prudent to confirm that there are no limitations on the use of that area contained in the title documents. These can take the form of restrictive covenants contained in previous deeds or limitations placed on the use of the premises by a Lease. 

Public Property 

If the external area to be used for the provision of food or drink is on public property, such as a highway or footpath, it will be necessary to obtain a Highway Amenity (pavement) Licence from the local Council. 

There is no prescribed procedure for a pavement licence application. It will therefore be necessary to make enquiries of the Council concerned to obtain the necessary application form and guidance notes. 

It will also be worth enquiring if the Council has a written policy on pavement licensing. If so, it would be advisable to obtain a copy as it will contain useful information concerning the Council’s requirements, such as limitations on items that may be placed within the licensed area, layout of the area and specification for barriers. 

There are no prescribed fees for pavement licences. Each Council will have its own scale of fees which will be provided on request. 

It is advisable to begin the process of applying for a pavement licence as soon as possible as they can take several weeks, in some cases months, to be determined. 

Pavement licences are very often subject to standard conditions. It is advisable to obtain details of the conditions at the outset to enable any cost implications to be taken into consideration, such as the provision of CCTV to cover the external area. 

Planning 

Whether or not the external area is located on private or public property it may be necessary to obtain planning permission in order to authorise the use of the area for the provision of food and drink. 

The situation in relation to public property varies from one local authority to another. Some Councils insist on planning permission being obtained before they will consider granting a pavement licence. Other Councils take the view that the use of the public property is temporary and therefore planning permission is not required.

It is therefore advisable to make enquiries of the Local Authority at the outset to enquire if planning permission is required. 

Licensing Act 2003 

If the external area is to be used for the provision of any activities, which are licensable under the 2003 Act, it will be necessary to ensure that the area is included within a Premises Licence if it is to be used on a permanent basis or a Temporary Event Notice if only used occasionally. 

In broad terms, the licensable activities are the sale of alcohol, provision of regulated entertainment or provision of late night refreshment. 

The consumption of alcohol is not a licensable activity and does not therefore require any authorisation under the 2003 Act. 

As such, it is possible to allow alcohol dispensed within a building, which is licensed under the 2003 Act, to be taken outside of those premises for the purpose of consumption in an external area. Orders may be taken and paid for within the external area and no licence will be required. 

Management 

Provided all necessary authorisations are in place it only remains to ensure that the use of an external area does not attract any complaints. 

It is therefore essential to ensure that an external area is properly managed to prevent any nuisance or disturbance being caused to other persons, such as residents of nearby property. The most obvious cause for complaint is noise from customers within the external area. 

It is advisable to erect signage in appropriate locations reminding customers to respect the neighbours and keep noise to a minimum. 

Staff should also be instructed to monitor the use of the external area and keep noise to an acceptable level.  

The issue of noise becomes more sensitive as the evening progresses. It may therefore be necessary to consider reducing or prohibiting the use of the external area after a certain time (for example 11pm) each day. 

An external trading area can be a great benefit to a business provided that it has any necessary authorisations and is managed responsibly. 

We would be pleased to provide advice and assistance in connection with the use of any proposed or existing external area.  Please contact a member of the Licensing Team at licensing@fraserbrown.com or on 0115 9888 777.

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