- Permission to operate a pavement licence does not imply an exclusive right to the area of public highway. The licence holder must be aware that Rochford District Council and others (e.g. police, highways authority, statutory undertakers) will need access at various times (including emergencies) for maintenance, installation, special events, improvements etc or any other reasonable cause. This may mean that the pavement licence (pavement Permit) will need to cease operating and/or be removed for a period of time. On these occasions there would be no compensation for loss of business.
- Rochford District Council requires evidence that the licence holder has Public Liability Insurance for the operation of the Pavement Café.
This must indemnify Rochford District Council and Essex County Council against all claims for injury, damage or loss to users of the public highway, arising from the use of the highway for the permitted purpose. The minimum level of indemnity must be £5 million in respect of any one incident.
- Tables and chairs must not be placed in position outside of permitted times. When the licence is not in use, all tables and chairs and other furniture must stored securely inside a premises away from the highway.
- Rochford District Council will only permit Table and Chairs Licences (Pavement licence) between 09:00 and 21:00.
Applications outside these hours will be assessed in terms of the criteria detailed above. The Council however retains the right to specify permitted hours of trading that are less than those specified above in appropriate circumstances.
- No Amplified or Live music to be located within the licensed area.
- Rochford District Council and/or Essex County Council are empowered to remove and store or dispose of furniture from the highway, at the cost of the licensee, if it is left there outside the permitted hours, or should any conditions of the licence be ignored. The Council will not be responsible for its safekeeping.
- The licence holder is not to make or cause to be made any claim against Rochford District Council in the event of any property of the licence holder becoming lost or damaged in any way from whatever cause.
- An unimpeded pedestrian route must be maintained at all times for people wishing to use the footway as per the National Licence Conditions.
- Unless separately agreed by the Licensing Department the method of marking the boundary of the licensed area shall be;
- A fixed barrier system, that is suitably stable not to be easily blown or knocked over.
- A colour that is suitable contrasting with the surrounding environment to ensure it can be easily seen.
- Whatever method is agreed a 2 metre clear walkway must be maintained for the use of pedestrians between the road and the licensed area.
- Emergency routes to the premises and adjacent buildings must not be obstructed by the Pavement Licence (Pavement Permit), which should not, in normal circumstances, extend beyond the width of the premises frontage.
- Tables and chairs should be kept in a good state of repair. Furniture should be placed so as not to obstruct driver sightlines, or road traffic signs. Placement of tables and chairs must allow pedestrians to use the footway parallel to the frontage of the premises.
- Care should be taken in the use of hanging baskets, awnings, protruding umbrellas etc. Alternative items may not be used without first seeking the written authority of the Council.
- Patio heaters must not be used.
- All potential obstructions must be removed from the public highway when the premises are closed to prevent a safety hazard to pedestrians, particularly during the hours of darkness.
- The licensee should ensure that the area operates in a safe and orderly manner, thereby ensuring that any safety risk or nuisance to customers, other users of the public highway or any adjacent land or premises, is minimised.
- Where the consumption of alcohol is to take place the only use of plastic or toughed glasses is to be permitted. Bottles are to be decanted into plastic or toughed glass drinking vessels within the facility.
- The operation of the area must not interfere with highway drainage arrangements.
- During the hours of darkness suitable and sufficient lighting must be provided to ensure safe use of the area.
Any proposals to provide additional lighting to the licensed areas must be agreed with the Highway Authority.
- All detritus (food and drink remnants, spillages, bottles, cans, wrappers etc) be regularly removed from the footway surface to reduce hazards to pedestrians.
The licence holder must make arrangements to regularly check for and to remove litter and rubbish on pedestrian walkways, caused by persons using the Facility, for a distance of up to 10 metres from the boundary of the Facility.
The licence holder must ensure that any tables are cleared in an efficient manner during the hours of operation.
- The licence holder must ensure the licensed area and surrounding highway is to be washed down at the completion of each day's usage using a method sufficient to remove food debris, grease and other spillages that may occur.
- The licence holder is not permitted to make any fixtures, or excavations of any kind, to the surface of the highway without prior written approval.
Any costs incurred as a result of damage to the highway, due to the positioning of tables and chairs etc, will be recovered in full from the licence holder by Rochford District Council or the Highway Authority.
- The Licensee of a premises not licensed under the Licensing Act 2003 or any modification or re-enactment thereof, must not allow the consumption of alcoholic liquor within licensed area.
- The licensee of a premises licensed under the Licensing Act 2003 or any modification or re-enactment thereof, must not allow the consumption of alcoholic liquor within the Facility outside the hours in force for the premises itself.
- The licence must be displayed on the premises with a plan of the agreed layout of the pavement café.
- The external seating and associated paraphernalia, including planters, shall not be placed outside when a market stall is set out on the public highway.
- External seating and associated paraphernalia, including planters, to the frontage prior to the setting up of the market the seating and associated paraphernalia shall be immediately removed.
- The licensee is responsible for ensuring that the conditions of the licence and any other necessary permissions and regulations are adhered to.
- The Licence holder is to use the highway solely for the purpose of the licence in line with the provisions of this licence and for no other purpose whatsoever.
- The licence holder must remove any tables, chairs and other furniture immediately at the end of the licence period or on revocation of the licence.
- Rochford District Council reserves the right to revoke this licence at any time if any of the above conditions are not fulfilled and maintained.
- The operation of the area must not interfere with taxi ranks or bus stops.
The 2020 Act sets out two conditions which apply to pavement licences which are granted or deemed to be granted these are: a no-obstruction condition and a smoke-free seating condition. These apply only to licences granted under the Business and Planning Act 2020, not existing licences permitted under Part 7A of the Highways Act 1980, or other relevant legislation.
Smoke-Free Seating Condition
The national smoke-free seating condition seeks to ensure customers have greater choice, so that both smokers and non-smokers are able to sit outside, in order to protect public health by reducing risks of COVID transmission.
It is important that businesses can cater to their customers’ preferences. The Business and Planning Act 2020 imposes a smoke-free seating condition in relation to licences where seating used for the purpose of consuming food or drink has been, (or is to be) placed on the relevant highway. The condition requires a licence-holder to make reasonable provision for seating where smoking is not permitted. This means that where businesses provide for smokers, customers will also have the option of sitting in a non-smoking area. Ways of meeting this condition could include:
- Clear ‘smoking’ and ‘non-smoking’ areas, with ‘no smoking’ signage displayed in designated ‘smoke-free’ zones in accordance with Smoke-free (signs) regulations 2012 which can be viewed here.
- No ash trays or similar receptacles to be provided or permitted to be left on furniture where smoke-free seating is identified.
- Licence holders should provide a minimum 2M distance between non-smoking and smoking areas, wherever possible.
No Obstruction Condition
The no-obstruction condition is a condition that the licence must not have the effects set out in section 3(6) of the 2020 Act. When determining whether furniture constitutes an unacceptable obstruction in light of the no-obstruction condition, the provisions require that local authorities consider the needs of disabled people. In order to do this, authorities should consider the following matters when setting conditions, determining applications (in the absence of local conditions), and when considering whether enforcement action is required:
- Section 3.1 of Inclusive Mobility sets out a range of recommended widths which would be required, depending on the needs of particular pavement users, but is clear that in most circumstances 1500mm clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway,
- any need for a barrier to separate furniture from the rest of the footway so that the visually impaired can navigate around the furniture, such as colour contrast and a tap rail for long cane users. In some cases, it may be appropriate to use one or more rigid, removable objects to demarcate the area to which the licence applies, for example wooden tubs of flowers. However, this will need to be balanced to ensure any barriers do not inhibit other street users, such as the mobility impaired, as such barriers may create a further obstacle in the highway;
- any conflict of street furniture with the principal lines of pedestrian movement particularly for disabled people, older people and those with mobility needs. The positioning of furniture should not discourage pedestrians from using the footway. The available route must be entirely clear and not pass through an area with tables and chairs;
- so that where possible furniture is non-reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind, and thereby cause obstruction – for example, the local authority could refuse the use of plastic patio furniture, unless measures have been taken to ensure it is kept in place.
Section 149 of the Equality Act 2010 places duties on local authorities, to have due regard to: the need to eliminate unlawful discrimination, advance equality of opportunity between people who share a protected characteristic and those who don’t, and foster or encourage good relations between people who share a protected characteristic and those who don’t.