Pavement licensing guidance and applications

Version 6: August 2024

1. Introduction.

During the COVID-19 pandemic the Government announced temporary changes making it easier for premises serving food and drink to seat customers outside. These measures were amended in March 2024 and consolidated into current legislation which also introduced a new process to allow licence holders to renew an existing pavement licence.

2. Scope

2.1 Eligible Businesses.

A business which uses (or proposes to use) premises for the sale of food or drink for consumption (on or off the premises) can apply for a pavement licence to allow consumption of food or drink supplied by the business on the highways adjacent to the premises. Businesses that are eligible include: public houses, cafés, bars, restaurants, snack bars, coffee shops, and ice cream parlours.

2.2 Eligible Locations.

Licences can only be granted in respect of highways listed in section 115A(1) Highways Act 1980. This is typically footpaths restricted to pedestrians and does not include land maintained by Network Rail, Crown land, car parks, beer gardens and village greens. If you need to check whether the land you are seeking to use is highways land, contact Surrey County Council highways information team (Surrey County Council website). .

2.3 Type of furniture permitted.

The furniture should be 'in keeping' with the local area  and may include:

• counters or stalls for selling or serving food or drink;
• tables, counters or shelves on which food or drink can be placed;
• chairs, benches or other forms of seating; and
• umbrellas, barriers, and other articles used in connection with the outdoor consumption of food or drink.

This furniture should be weatherproof, and capable of being easily cleaned. It should not be a permanent fixed structure as it should be capable of being stored away at the end of each licensed day.

2.4 Planning Permission.

Once a licence is granted, or deemed to be granted, the applicant will also benefit from deemed planning permission to use the land for anything done pursuant to the licence while the licence is valid.

2.5  Permission for activities not licensable under the pavement licence regime

These will include placement of advertising boards, and furniture that is not removable eg bolted to the ground or cannot reasonably be removed. Such activities must be approved by Surrey County Council under the Highways Act 1980.

Temporary amendments allowing the off sales off alcohol to premises that had a licence under the Licensing Act 2003 on 22 July 2020, which permitted sales of alcohol only for consumption on the premises, will continue until 31 March 2025 without the need to apply for a variation of that licence.

3. Application for a Pavement Licence (new and renewal)

3.1 Site Notice.

An applicant for a pavement licence must, on the day the application is made, fix a site notice regarding the application to the premises so that the notice is readily visible to, and can be read easily by, members of the public who are not on the premises.  The notice must be constructed and secured so that it remains in place until the end of the 14 day (excluding public holidays)  public consultation period.  Evidence of compliance with the site notice requirement must be supplied to the Council with the application.  The Council would also expect the applicant to serve a copy of the site notice on immediate neighbours to make them aware of the application.

The Site Notice must:

• state that the application has been made and the date on which it was made;
• state the statutory provisions under which the application is made;
• state the address of the premises and name of the business;
• describe the proposed use of the furniture;
• indicate that representations relating to the application may be made to the Council during the public consultation period and when that period comes to an end ie 14 days starting the day after the application is submitted to the authority).
• state the Council's website where further details accompanying the application may be obtained during the consultation period; and
• state the address to which representations should be sent during the consultation period;

A template Site Notice is shown as Appendix 1.

3.2 An application for a new Pavement Licence requires the following :

• online Application Form (see below) and the relevant fee of £411, to be paid by credit or debit card at the time of submission;
• a plan showing the location of the premises shown by a red line, so the application site can be clearly identified;
• a plan clearly showing the proposed area covered by the licence in relation to the highway, if not to scale, with measurements clearly shown.  The plan must show the positions and number of the proposed tables and chairs, together with any other items that the applicant wishes to place on the highway. The plan shall include clear measurements of, for example, pathway width/length, building width and any other fixed item in the proposed area;
• (if applicable) a risk assessment demonstrating how the applicant will manage the conflict between pedestrians using the footway, those using the tables and those queuing to access the premises;
• the proposed days of the week on which, and the times of day between which, it is proposed to put furniture on the highway;
• the proposed duration of the licence (up to 2 years);
• photos or brochures showing the proposed type of furniture, and information on potential siting of it within the area applied for along with details of any objects or markers to be used to donate the boundary;
• (if applicable) evidence of consent from neighbouring frontage(s) to use footway space outside their property;
• evidence that the applicant has met the requirement to give public notice of the application for 14 days (for example photographs of the site notice outside the premises and of the site notice itself),
• a copy of a current certificate of insurance that covers the activity for third party and public liability risks, to a minimum value of £10 million, and
• any other evidence needed to demonstrate how the Council's local conditions, and any national conditions will be satisfied.

New pavement licence, online application form

3.3 An application to renew an existing pavement licence

Please note a renewal application must be made by the same licence holder, in respect of the same premises on the same terms as an expired licence, otherwise a new application must be made. The Council will reuse application material from the original application and therefore only requires the following;

• an online Application Form and the relevant fee of £337, to be paid by credit or debit card at the time of submission;
• a copy of a current certificate of insurance that covers the activity for third party and public liability risks, to a minimum value of £10 million,
• (if applicable) updated consent from neighbouring frontage(s) to use footway space outside their property;
• evidence that the applicant has met the requirement to give public notice of the application for 14 days (for example photographs of the site notice outside the premises and of the site notice itself),

Renew an existing pavement licence, online application form

3.4 Fees

The fee is an 'application' fee for the processing of the application. The fee will not be refunded if the application is withdrawn, refused or if a licence is surrendered or revoked before expiration.

4. Determination 

4.1 Consultation

The public consultation period is 14 days (excluding public holidays), starting the day after a valid application is made electronically to the Council. The Council is required by law to consult with the Highways Authority, and will also consult with:

• RBBC Environmental Health Services (including Environmental Control and Food and Safety Teams)
• Planning
• Surrey Fire & Rescue Service
• Surrey Police

Members of the public and those listed above can contact the Council within the consultation period to make representations. The Council must take into account any representations received during the public consultation period and consider these when determining the application.

4.2 Site Assessment.

The following matters will be taken into account by the Council in considering the suitability of the proposed application:

• public health and safety - for example, any reasonable crowd management measures needed as a result of a licence being granted;
• public amenity - will the proposed use create nuisance to neighbouring occupiers by generating anti-social behaviour, excessive noise and litter; and
• accessibility - taking a proportionate approach to considering the nature of the site in relation to which the application for a licence is made, taking account of:
  • any other temporary measures in place that may be relevant to the proposal, for example, the reallocation of road space. This could include pedestrianised streets and any subsequent reallocation of this space to vehicles,
  • whether there are other permanent street furniture or structures in place on the footway that already reduce access,
  • the impact of access and egress to the premises
  • the impact on any neighbouring premises
  • the recommended minimum footway widths and distances required for access by mobility impaired and visually impaired people as set out in Section 3.1 of Inclusive Mobility (Gov.UK), and
  • other users of the space, for example if there are high levels of pedestrian or cycle movements.

Applicants are strongly encouraged to talk to neighbouring businesses and occupiers prior to applying to the local authority, and take any issues around noise, and nuisance into consideration as part of the proposal.

4.3 Decision.

Once the application is submitted the Council has 28 days from the day after a valid application is made (excluding public holidays) to consult on and determine the application.  This consists of 14 days for public consultation, and then 14 days to consider and determine the application after the consultation period has ended.

If determination is made before the end of the statutory period, the Council can:

• grant the licence in respect of any or all of the purposes specified in the application,
• grant the licence for some or all of the part of the highway specified in the application,
• impose conditions on any licence granted, or
• refuse the application.

If the local authority does not determine the application within the 28-day period, the application will be deemed to have been granted subject to any published local or national conditions.

4.4  Issue of licence and conditions .

The Council will in general only permit Pavement licences between 09:00 and 23:00hrs. 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.

On approval of the application, the Council will issue a Pavement Café Licence to which conditions will automatically be attached.  The licence will also contain specific terms such as days and hours when tables and chairs etc are permitted. A copy of the Council's standard conditions are shown at Appendix 2.  Additional conditions may be attached if the Council considers it appropriate in the circumstances of any particular case.

The national conditions relating to 'no-obstruction' and 'smoke-free seating' apply to all Licences.  These conditions are shown in Appendix 3.

4.5 Licence Duration.

Licences will be granted for up to a maximum of 2 years unless there are good reasons for granting for a shorter period, such as plans for future changes in use of road space.

4.6 Refusal 

If the site is deemed unsuitable for a Pavement licence, or if relevant representations are made which cannot be mitigated by imposing conditions, then the application may be refused. The Council may also refuse an application on other grounds including (but not limited to)  risks to public health or safety, potential for antisocial behaviour or public nuisance or unreasonable restrictions to pedestrian movement.

The Council will notify applicants of the reasons for refusal following determination. There is no statutory appeal process against a decision to refuse an application.

5. Enforcement

The Council aims to work closely with other enforcement authorities to enforce the provisions of all appropriate legislation and will normally, in the first instance, seek to rectify any issues arising as a consequence of the activities authorised by a pavement licence by engaging in informal discussions with the licence holder. All enforcement activity will be undertaken in line with the principles set out in the Regulator's Code and the Council's Enforcement Policy.

Obtaining a Pavement Licence does not confer the holder immunity in regard to other legislation that may apply, e.g. Public Liability, Health & Safety at Work, Food Hygiene and Safety, and  Alcohol and Entertainment Licensing.

5.1 Breach of local or national conditions

The Council can issue a notice requiring the breach to be remedied. If the licence holder fails to do so, the Council may amend the licence, with the consent of the licence holder, revoke the licence or take steps to remedy the breach and recover any costs in doing so.

5.2 Revocation and amendment of licence

In addition to revoking or amending a licence for breach of conditions the Council may also take similar action where 

• all or any part of the area of the relevant highway to which the licence relates has become unsuitable for any purpose for which the licence was granted or deemed to be granted.  For example, the licensed area (or road adjacent) is no longer to be pedestrianised,
• risks to health and safety are identified eg significant security risks emerge which have not previously been considered or addressed in a proportionate fashion and require reassessment, particularly in the event of changes to the terrorism threat level,
• the highway is being obstructed (other than by anything permitted by the licence),
• there is anti-social behaviour or public nuisance - for example, the use is increasing the amount of noise generated late at night or litter is not being cleaned up,
• it comes to light that the applicant provided false or misleading statements in their application - for example they are operating a stall selling hot food and had applied for tables and chairs on which drinks could be consumed; or
• the applicant did not comply with the requirement to affix the site notice to notify the public for the relevant period.

5.3 Powers to remove furniture

The Council can give notice requiring a business to remove unauthorised furniture, which would normally be permitted by a pavement licence, before a specified date and to refrain from putting furniture on the highway unless they gain a licence.

If the notice is violated, the Council may remove and store the furniture, recover the costs from the business for the removal and storage of the furniture and refuse to return the furniture until those costs have been paid. If within 3 months of the notice the costs are not paid the authority can dispose of the furniture by sale or other means and retain the proceeds.