Creating the inside outside - A guide to licensing open spaces in the hospitality trade

25 June 2020

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The announcement that hotels, cafés, restaurants and bars that serve food will re-open in Northern Ireland on 3 July 2020 was met with a collective sigh of relief across the industry, notwithstanding some apprehension about the challenges which lie ahead. Pubs which only serve alcohol will also be allowed to open but can do so outdoors only from that date.

Undoubtedly as part of preparation for re-opening, many business owners will be considering how best to trade in a way which is viable but which still adheres to the requirements for social distancing and provides a safe environment in which to welcome back customers.

This for many will include looking at ways of bringing at least part of their business outside over the coming months and the good news is that help is at hand for this in the form of the Licensing of Pavement Cafés Act (Northern Ireland) 2014.This niche and very useful piece of legislation regulates the placing of furniture on public areas for use for consuming food or drink which may in some instances, but by no means always, include alcohol. The provisions of the Act apply to all cafés, bars, hotels, guest houses and restaurants and the creation pavement café licences for them. In essence, a pavement café licence is a licence authorising the licence holder to place temporary furniture in a public area in the open air to which the public has access of right (without payment) and which isn’t in a market area. Temporary furniture as defined under the legislation includes tables, chairs, umbrellas, barriers and heaters.

Under the Act the authority to grant a Pavement Café Licence rests with the Council which covers the area in which the premises are located and only one set of premises may be specified in the application but it does not preclude a number of applications by one owner for various premises. A number of Councils here have actively embraced the licencing of pavements and have a protocol and procedure in place setting out the relatively straight forward requirements for the grant of a licence. Invariably an applicant for a Pavement Café Licence will be required to pay a modest administrative fee, complete the application form provided by the Council and submit this together with a plan which must show the location and dimensions of the public area which it is intended to licence. An important procedural requirement is advertisement of the notice of application on the premises in order to notify the public and to enable those who may wish to do so, to make representations to the Council.

Under Section 4 of the Act a Council must grant an application for a Pavement Café Licence which is made to it unless it considers that it ought to refuse the application on one or more grounds. The grounds upon which the Council may refuse an application are as follows:

  • That all or any part of the public area where the applicant wishes to place temporary furniture for use for the consumption of food or drink is unsuitable for that purpose;
  • That placing such furniture on, or on a particular part of, that area for use for the consumption of food or drink supplied in or from the premises specified in the application would be likely to result in undue interference or inconvenience to persons or vehicles in the vicinity, or in disorder;
  • That, in connection with the application, the applicant made a statement which the applicant knew to be false in a material respect or failed to comply with Section 11; and
  • That the applicant has at any time been granted a pavement café licence by the Council which was revoked or, could have been revoked, for reasons within the applicant’s control.

The reference to compliance with Section 11 relates to the statutory requirement to place the notice on the premises on the same day as the application is lodged with the Council.

Before deciding an application for a Pavement Café Licence the Council must consult with the Department for Regional Development regarding that Department’s functions with respect to roads and the regulation of traffic and it may also consult the District Commander for the Police District in which the premises are situated, although in the case of a bar the requirement to consult the District Commander is mandatory.

A Pavement Café Licence once issued by the Council must be in the prescribed form, specifying the holder of the licence and must include a plan showing the location and dimensions of the public area to which it relates. Unless surrendered, revoked or suspended, a Pavement Café Licence remains valid for the period specified in the licence or if no period is specified in the licence then it remains valid indefinitely. Provision for renewal is also contained within the Act.

Although navigation of the process to obtain a Pavement Café Licence is very straight forward there are certain conditions which must be included in the licence and others which may be added at the discretion of the Council. For example, if a Pavement Café Licence is granted to an off-sales licence holder, a condition will be imposed not to permit persons to consume alcohol when using furniture on the area covered by the licence. In the grant of a Pavement Café Licence for other types of premises a condition may be included requiring the licence holder not to permit alcohol consumption when using furniture on the area covered by the Pavement Café Licence if the Council believe to do so would likely to result in disorder.

In general terms the Council may impose such other conditions as it considers reasonable and may include limitations around the amount of furniture on the area covered by the licence together with limiting the days or times when the furniture may be there. The Council may also make the licence conditional upon proof of adequate arrangements for storing the furniture when not on the area and other aspects of general housekeeping.

It is important for those who hold a Liquor Licence to be aware that when applying for a Pavement Café Licence they are required to ensure that the court licensing register relating to their liquor licence is updated to record the grant of a Pavement Café Licence. Procedurally this is not difficult to do but it is a legal requirement and protects the integrity of the liquor licence.

A few other things which an applicant for a Pavement Café Licence would do well to check are firstly their insurance cover and where appropriate update it to create additional cover for the outside area across all the risks for which they are currently insured. Another one is the possible requirement for Planning Approval. Given our climate, some traders will consider attaching an awning or some other form of retractable roof cover to their premises but in doing so may trigger an application for planning permission.

When the Licensing of Pavement Cafes Act was set down in 2014 the rationale behind it may have been to offer practical assistance to the hospitality trade in the creation of European style town and cityscapes and a lifestyle that many now yearn for in hopefully brighter days ahead. Whatever the intention was, there can be little doubt that the legislation offers invaluable assistance across the hospitality industry in this strange new world as a legal means of utilising open spaces for business re-opening and recovery.

If you have any queries the Licensing team at Carson McDowell would be happy to help.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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