On Monday 29 June 2020, MPs will consider all stages of the Business and Planning Bill (introduced in the House of Commons on 25 June 2020) that, if enacted, will relax planning and licensing laws to help the hospitality industry recover from the coronavirus lockdown.
Explanatory Notes to the Bill describe its intention as being to make it “easier for premises in England serving food and drink such as bars, restaurants and pubs to seat and serve customers outdoors through temporary changes to planning procedures and alcohol licensing. Alcohol licensing changes will allow operators to serve alcohol for consumption off the premises and will also apply in Wales’.
Its licensing related measures are temporary, the Explanatory Notes stating as follows:
- Outdoor seating: “The outdoor seating proposal is a temporary measure. None of the licences consented will be valid after 30 September 2021. This will allow businesses securing licences through this route to place outdoor furniture well into Summer next year and renew licences under the current system if they want to extend beyond this period”.
- Alcohol licensing: “A sunset clause is included in relation to this measure. Clause 11(14) provides that the provisions expire at the end of 30 September 2021, in line with the measure in relation to outdoor seating, and subject to a power for the Secretary of State to specify a later date by regulations. The addition of an off-sales permission is temporary to assist the hospitality sector with the easing of restrictions of Covid-19 restrictions, however, premises are able to submit a variation application in order to retain permission”.
In terms of policy background, the Explanatory Notes state:
4 This Bill includes temporary measures to support businesses selling food and drink through economic recovery as lockdown restrictions are lifted but social distancing guidelines remain in place. Once cafes, pubs and restaurants are permitted to open, current social distancing guidelines will have considerable impact on the capacity to accommodate customers.
5 The measures in this Bill are designed to support businesses selling food and drink such as cafes, pubs and restaurants by introducing a temporary fast-track process for these businesses to obtain permission from the local council for the placement of furniture such as tables and chairs on the pavement outside their premises. This will enable them to maximise their capacity whilst adhering to social distancing guidelines. The current process for businesses to obtain these licences can be costly and time-consuming. This Bill includes temporary measures to place a cap on the application fee for businesses, enforcement and revocation powers so councils can protect public safety and amenity, and introduces a new 14 day determination period, ensuring that businesses can obtain licenses in a timely and cost effective manner aiding to their financial recovery.
6 The measures included in this Bill modify provisions in the Licensing Act 2003 to provide automatic extensions to the terms of on-sales alcohol licences to allow for off-sales. It will be a temporary measure to boost the economy, with provisions lasting until the end of September 2021.
7 These measures will make it possible for licensed premises that have only an on-sales licence to sell alcohol for consumption off the premises. This will allow businesses to trade whilst keeping social distancing measures in place inside.
8 The provisions remove the need for any application to be made, therefore no fee will need to be paid. This will deliver savings to businesses, as well as providing them with certainty about how they are able to trade. It will also reduce the burden on local authorities and the police, who will not need to scrutinize any applications for licence variations from the premises affected by these measures. Licensees who have had an application for an off-sales permission refused or had their off-sales permission excluded by variation or at review within the last three years, will be excluded from this licence extension. This is a safeguard to ensure that where it has recently been decided that the licensee should not have the permission, they do not receive it through this legislation.
9 The default hours in which off-sales will be permitted will be the same as those in which on- sales are permitted. Any licensee who wished to open for longer hours could apply for a licence variation.
10 The provisions will also apply temporary conditions to licences where there is a pre-existing permission for off-sales. The conditions will set the hours of off-sales to match those for on- sales, allow off-sales of alcohol in open containers and allow deliveries of alcohol to residential or work buildings. Those conditions will suspend existing conditions that are more restrictive. So, for example, an existing condition that allowed off-sales only in closed containers would be suspended to allow sales in open containers.
11 If there were problems of crime and disorder, public nuisance, public safety or the protection of children arising from how the premises operated using the new permission, any responsible authority, including the police or environmental health, could apply for a new off-sales review. The off-sales review process is modelled on the existing summary review process. In the event that an off-sales review is triggered, it will only relate to off-sales authorised by virtue of these provisions, or conditions which have effect by virtue of these provisions: it cannot be used to revoke the existing licence or modify pre-existing licence conditions.
In terms of legal background, the Explanatory Notes state:
38. Businesses selling food and drink such as cafes, pubs and restaurants can apply to the local council for a “pavement licence” allowing them to put furniture such as tables and chairs outside on the highway for their customers to consume their food and drink. The present procedure for the grant of a “pavement licence” is set out in Part 7A of the Highways Act 1980. London boroughs can also choose to opt into a procedure set out in the London Local Authorities Act 1990. The City of Westminster operates its own procedure set out in the City of Westminster Act 1999.
39. The Bill will provide a new streamlined procedure enabling businesses serving food and drink to apply for a temporary pavement licence. This will be a bespoke procedure, outside those Acts. In addition to a pavement licence, some local councils require the business to also apply for planning permission on the basis that putting tables and chairs on the highway is a change of use of the land. The Bill provides that where a temporary pavement licence is granted, any necessary planning permission is automatically deemed to have been granted.
40. The Licensing Act 2003 makes provision for the regulation of the sale and supply of alcohol, including the granting of premises licences. Should a licensee with permission to sell alcohol only for consumption on the premises (“on-sales”) wish to sell alcohol for consumption off the premises (“off-sales), they are required to apply for a variation of their licence. The Bill modifies the Licensing Act 2003 to allow eligible holders of an on-sales licence an automatic grant of the off-sales permission for a limited period. The provisions will also apply temporary conditions to licences where there is a pre-existing permission for off-sales. These will enable those premises to operate in the same ways as those that are granted the new permission by suspending existing conditions that are more restrictive. The Bill also provides for off-sales reviews to take place on grounds which are relevant to the licensing objectives. The licensing objectives are set out in section 4(2) of the Licensing Act 2003. As a result, an off-sales review can take place if there are problems relating to crime and disorder, public nuisance, public safety or the protection of children associated with the new permission or its associated conditions.
Draft guidance has been published to support the measures set out in the Bill – including draft guidance relating to the outdoor seating proposal. The government’s press release entitled “Government outlines support for pubs, cafes and restaurants” can be accessed here.
- As subsequently reported by us, on 19 July 2020 the Ministry of Housing, Communities & Local Government announced an amendment to the Business and Planning Bill to ensure that pubs, restaurants and cafes offer their customers both smoking and non-smoking outdoor options.
- The Business and Planning Act 2020 received Royal Assent on 22 July 2020. Each of (a) the statutory guidance for pavement licences and the statutory guidance on new temporary off-sales permissions can be downloaded below.