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Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2023

Volume 831: debated on Wednesday 12 July 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2023.

Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee

My Lords, the regulations that we are considering today were laid in draft before this House on Wednesday 7 June under Section 23(6) of the Business and Planning Act 2020 for approval by resolution of each House of Parliament. If approved and made, these regulations will extend the temporary pavement licence provisions for 12 months to 30 September 2024 and will come into effect the day after they are made.

These pavement licence provisions create a faster, cheaper and more streamlined consenting regime for the placement of removable furniture, including tables and chairs, on pavements outside premises such as cafés, bars, restaurants and pubs. These measures have been successful in supporting businesses, making it easier for businesses such as pubs, restaurants and cafés to facilitate al fresco dining with outside seating.

We know that the hospitality sector was one of the hardest hit by the pandemic, and the economic effects of that period persist today. It is therefore vital that we extend these provisions for 12 months to continue to support its recovery from the impact of the coronavirus pandemic and to avoid unnecessary confusion while we seek to make the streamlined process permanent through the Levelling-up and Regeneration Bill.

I will briefly remind the Committee of the background to these regulations. Part VIIA of the Highways Act 1980 sets out a permanent local authority licensing regime for the placement of furniture such as tables and chairs on the highway. However, the process involves a legal minimum of 28 days’ consultation. That is problematic because many local authorities take much longer to determine applications, and there is no statutory cap on the fee that local authorities may charge.

Therefore, with effect from 22 July 2020, temporary pavement licence provisions were introduced in the Business and Planning Act 2020 to support the hospitality sector in response to the coronavirus pandemic. These proposed regulations use enabling powers in the Business and Planning Act 2020 that allow the Secretary of State, where they consider it reasonable to do so, to mitigate an effect of coronavirus to extend the temporary provisions subject to parliamentary approval.

I turn to the detail of the regulations. The sole purpose of the regulations is to change the four references to the expiry date of these temporary pavement licence provisions in the legislation, amended from 30 September 2023 to 30 September 2024. The regulations do not change any other part of the temporary placement licence provisions. 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 2020 for the extended period until 30 September 2024. The regulations do not automatically extend licences that have already been granted under the current provisions, so businesses will need to apply for a new licence should they wish to have one in place during the extended period.

Local authorities are encouraged by the guidance to take a pragmatic approach in applying the relevant provisions, so that it is as convenient as possible for businesses to apply for a licence during the extended period. I will briefly remind noble Lords of this process.

All licence applications are subject to a seven-day public consultation period, starting the day after that on which the application is made, and then a further seven-day determination period, during which the local authority is expected to either grant a licence or reject the application. If the local authority does not determine the application before the end of the determination period, the licence will automatically be deemed to have been granted in the form in which the application was made, and the business can place the proposed removable furniture within the area set out in the application for the purposes proposed.

Licence application fees will be set locally but capped at a maximum of £100. All licences will be subject to a national non-obstruction condition and smoke-free seating condition, as well as any local conditions set by local authorities.

The granting of a pavement licence covers only the placing of removable furniture on the highway. A pavement licence does not negate the need to obtain approvals under other regulatory frameworks, such as alcohol licensing. Once a licence is granted or deemed 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, such as using furniture to sell or serve food or drink supplied from or in connection with the relevant use of the premises.

The regulations will enable cafés and restaurants to continue to obtain quickly and cheaply a licence to place furniture on the highway outside their premises. If these regulations are not introduced, there is a real risk of undermining the steps that hospitality businesses have taken to recover from the economic impacts they have suffered as a result of the pandemic.

We are seeking to make the streamlined approval process permanent through the Levelling-up and Regeneration Bill. Failure to extend this measure would result in a gap in service and a return to the process under the Highways Act 1980, which would be confusing and costly for businesses and local authorities alike.

All of us in government have seen the positive impact of al fresco dining on the vibrancy of many of our high streets. I express my gratitude to local authorities for the huge effort they have made in this matter and for their hard work to enable businesses to thrive while building vibrant high streets, leading to the success of these measures. The draft regulations will allow al fresco dining to remain a reality for these businesses and provide much-needed continuity for another year while we seek to update the permanent measures through the Levelling-up and Regeneration Bill. I commend this instrument to the Committee.

My Lords, I warmly support these regulations and congratulate my noble friend on bringing them forward. My only concern is about the ability to reach out and consult organisations representing the disabled, which I will come to in a moment.

In her introductory remarks, my noble friend mentioned what this will mean for the hospitality sector, and I warmly support that for the reasons she gave. The sector suffered heavy losses during the Covid pandemic, and it is gratifying that tourists are now returning to areas such as London—and North Yorkshire, to a certain extent—in waves that we have not seen since the pre-pandemic days of 2019. That is very welcome.

I had the good fortune and honour to chair the ad hoc Select Committee on the Licensing Act 2003 and, similarly, the follow-up committee. I was delighted that the Liaison Committee allowed us to conduct a further, follow-up inquiry. One of the issues that struck us during that inquiry was how to reach out to interested affected groups, such as organisations and groups representing the disabled, and how best to catch their attention if there was a licensing application that may be of interest or concern to them.

Can my noble friend put my mind at rest in that regard? I think she said that each individual licence is subject to a seven-day consultation, so I would like to know what mechanism local authorities use in that regard.

I note that paragraph 10.1 of the Explanatory Memorandum attached to the regulations says:

“No formal consultation has taken place on this measure”.

Perhaps one would not have expected a consultation for the reasons that my noble friend gave, that this is a continuation and a renewal. This is my main concern here. We all know disabled people and partially sighted people—they are represented in both Houses of Parliament. One error of these regulations, or any licensing application applied under them, would be if those people were not reached out to under each individual licensing application.

On a lighter note—this is not really about a pavement application—when coming back down St Martin’s Lane in the daytime today, I passed Stringfellows, which is a well-known restaurant establishment, and I was rather struck by an orange leaflet that had great prominence on two of its doors. It has applied for a renewal of a sex establishment licence as a sexual entertainment venue. I realise that this is without the remit of today’s debate, but I will write to my noble friend with a copy of the notice. We spent hours looking line by line through the Licencing Act 2003; I like to think that I am fairly interested in licensing, but it was news to me that we have any sexual entertainment venue licensed in London or any other part of this country.

I look forward to my noble friend’s response on the consultation, not just of these regulations but of each individual licence application under the regulations before us.

My Lords, that conjures up a new image of a pavement licence for Stringfellows.

I had better remind the Committee of my relevant interests in this regard as a councillor and as a vice-president of the Local Government Association.

The pavement licencing regulations are very positive and I am pleased that they will be rolled over. I have one or two questions. Even in my less-than-warm part of Yorkshire, this has been a positive move—that is the good news. However, I wonder why, when these regulations were first considered, there was no thought about an automatic rollover for businesses that had made an application and had fulfilled their obligations under the licence, and about which there had been no complaints. For businesses there is now additional bureaucracy every year when they have to make an application to the local authority. That is my first point.

I have raised my second question before. Businesses now have the opportunity to trade on the public highway. The public highway is owned by the public and must be maintained by the public. One wonders whether there ought to be a rental income for the local authority from the business for the use of the highway. Local authorities are cash-strapped as it is, and any form of additional income would be welcome. I say that because I think the licence income is very small; I think I heard the Minister say it was £100 maximum. Some establishments use quite a lot of their highway if they have a good frontage, and there ought to be some income there for the local authority.

My final point is that, when these regulations were first considered, some of us made a proposal—we had a good debate on it—about having visible barriers to indicate the extent of the pavement licence. The reason was to ensure that there was no spread, because it is easy for that to happen through no particular fault on anybody’s part; human behaviour would just lead to that kind of spread, and then the pavement would be blocked for people with disabilities, especially those with visual impairments or in wheelchairs, as well as people with buggies. For me, that was quite an important issue and I have seen no further reference to that element of the regulations. Can the Minister therefore reassure me that this provision is still part of the regulations?

With those short comments, I welcome that this is to be extended to next year and that the Levelling-up and Regeneration—and childminding—Bill will include provisions to make it permanent.

My Lords, I was interested to hear the comments of the noble Baroness, Lady McIntosh of Pickering, about Stringfellows. I understand—only from posters on the Underground, believe me—that it is known for its Magic Mike performances. The idea of these being subject to pavement licences is a bit mind-blowing, but you never know what will happen in London.

This SI is the third extension to the regulations permitting the rapid application process for businesses to obtain pavement licences. We understand that this is a temporary provision pending the introduction of permanent changes in the levelling-up Bill. The introduction of this power during Covid undoubtedly had a very positive effect for the small businesses it was intended to support—in fact, it probably saved quite a lot of them from extinction. It has also created a vibrant outdoor eating and drinking culture in many of our high streets—including where I live—which has enlivened and invigorated them very positively. We therefore will not be objecting to this SI.

However, I have a few questions for the Minister, which I shall put to her as briefly as possible. First, during the debates on the pavement licence section of the levelling-up Bill, the noble Lord, Lord Holmes, rightly raised the issue of ensuring that our pavements are accessible to all. The noble Baronesses, Lady McIntosh and Lady Pinnock, both commented on this. The noble Lord said:

“I simply wish to reassert the primary purpose of the pavement. It is not a place for excessive A-boards, advertisements, marketing materials or sprawling seating. It is a place to connect people. It is a place where we can meet on our streets. Yet, all too often, we experience inaccessibility, obstacles and problems when we are simply trying to go about our daily business. This is bad enough for anybody, but for those of us who use guide dogs or wheelchairs it can often be an impossibility”.—[Official Report, 22/5/23; col. 646.]

He also raised the issue of e-scooters being littered across pavements.

I understand from previous answers from the Minister that local authorities will be encouraged to take the needs of all users into account when considering licence applications. I hope that she will be sympathetic to amendments to the levelling-up Bill in this regard. It might really help if we could approach an organisation such as the Royal National Institute of Blind People to get some guidance about what would help people with visual impairments to cope with this kind of street trading.

Secondly, the issue of cost was mentioned by the noble Baroness, Lady Pinnock. While I appreciate that the Government and all of us want to give small businesses every chance to recover from Covid without imposing any further costs on them, it does not seem fair that local authorities, which are also recovering from the financial burdens of Covid, should take these costs on themselves. The Minister will be very aware that the Local Government Association has long held the view that councils should be able determine such costs relating to the full cost recovery of issuing licences. I can see that in the short term we would not want to impose any further financial burdens on small businesses, but will the Government give further consideration to this when the measures become permanent as part of the Bill?

I would like to ask the Minister about the seven-day application process. Most applications will be by a delegated authority for licensing officers to consider. Should there be a contested application, for example, local authorities have to by law give seven days’ notice of a meeting. That is a bit tricky if the licence has to be considered within seven days. I wonder how that is going to be dealt with.

Finally, when debating this issue in the other place my honourable friend Sarah Owen, the MP for Luton North, rightly raised the support that could be provided to small businesses through the non-domestic rating system. As we are currently in the process of that Bill going through your Lordships’ House, is the Minister able to give the same small businesses being supported by pavement licences any reassurance about how the Government intend to support them further by provisions in that Bill?

We have no hesitation in supporting this SI. We all want those small businesses which have been helped by it to continue to thrive.

My Lords, I thank noble Lords for their contributions on these draft regulations. As I previously outlined, these regulations continue our support for the hospitality sector’s economic recovery from the coronavirus pandemic and give support to businesses in uncertain times with global inflation. As we have heard, this extension will give businesses extra support for another year. I thank noble Lords for their support for that across the Committee.

A number of points were raised, and I will go through them. Accessibility was quite rightly bought up by my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Taylor of Stevenage. This is very important. I have met my noble friend Lord Holmes more than once about this issue. I continue to talk to him. Of course, pavements must always be accessible to everyone, regardless of their mobility needs. As such, this condition applies to all temporary pavement licences issued by councils. If the conditions are not met, the licences can be revoked.

The pavement licence guidance says that in most circumstances a minimum of 1.5 metres of space should be kept clear between an obstacle and the edge of the footpath. That is for everyone, whether it be wheelchairs, buggies or just people who need a little more space to walk safely around our town. This will continue to apply under the extended provisions. We work with disabled people through the Disabled Persons Transport Advisory Committee, the Royal National Institute of Blind People and the Guide Dogs for the Blind Association. This guidance has always been refined even further after speaking to them, to ensure that local authorities consider the needs of all people when setting conditions and making decisions.

In terms of local particularities, because areas differ, local authorities may also wish to review any local conditions they have set in relation to access and safety. That is really important. Local people know best about their towns and villages. The noble Baroness, Lady Pinnock, asked about automatic rollover. I can understand the reasoning behind this, but we want to ensure that the community continues to have a say. We know that in communities some people may say that it is fine, but I think we should ask, so we need an annual consultation just to check that everything is going right, and that people are happy with what is being delivered.

The noble Baronesses, Lady Taylor of Stevenage and Lady Pinnock, brought up the issue of income for local authorities. There is always a balance between money for the council and the cost to businesses. The £100 is a cap. Some local authorities do not charge anything; I was hearing of one such the other day. They may be much wealthier councils than others so can afford to do that, or they may prioritise small businesses at a particularly difficult time, but it is a cap. Looking further towards the future, the Levelling-up and Regeneration Bill that is going through the House looks at higher levels of cost to businesses. Again, though, they will be caps; they will not be required to be charged. It is important that local authorities have the flexibility to do that.

The noble Baroness, Lady Pinnock, mentioned visible barriers. I will take this issue back and we will have another discussion about it. I certainly know from personal experience that al fresco dining is wonderful; it makes our streets look so much more interesting at times, and it is lovely to sit out. However, the ones with the barriers around them seem much more sensible to me. I will take that back to the department. I will not forget; I will come back to her.

I thank the Minister for doing that. My worry is that I think that was initially included in the first set of regulations, and I wonder why it has somehow been taken out. But I will wait for an answer.

I am interested in the answer as well, so I will definitely come back to the noble Baroness on that.

As I say, the measure also refers to the issue of non-domestic rates, mentioned by the noble Baroness, Lady Taylor of Stevenage. Non-domestic rates are important revenue for local authorities. Again, it is about balance: if you lower them for businesses, that is good for businesses, but then we have to make that up in some way for local authorities.

I think I have answered everything. I will check Hansard tomorrow, and obviously I will send a letter if necessary. Did I miss something?

On the non-domestic rates issue, we have raised the point during the course of the Bill, which my noble friend Lady Hayman has been dealing with, about the fact that there is disparity in treatment between online businesses and the kind of small businesses that we are talking about that operate on our high streets. As we go through the process of further consideration of the Bill, we need to think about that because it would be a way of giving more support to those small businesses and perhaps getting online businesses to pay a bit more of their fair share towards the tax cost in this country.

I know that will be an issue as the Bill comes back on Report.

I shall conclude. We believe that extending the temporary pavement licence provisions through these regulations is necessary to support food and drink hospitality businesses. That is particularly important when we consider how badly affected they were by the pandemic. These temporary pavement licence measures have already been very successful in supporting that sector in its economic recovery and getting it out of the pandemic. They will enable that success to continue and provide much-needed certainty to businesses in their planning for the coming years. I thank noble Lords for taking part, and I commend the regulations to the Committee.

Motion agreed.

Committee adjourned at 6.14 pm.