Frequently asked questions about pavement licences

How do I apply for a pavement licence?

Go to our Apply for a pavement licence page.

How much does it cost?

The fee is £100 for everyone, no matter how big or small your premises is.

Where can I have a pavement licence?

Licences can only be granted in respect of highways listed in section 115A(1) Highways Act 1980. Generally, these are footpaths restricted to pedestrians or are roads and places to which vehicle access is restricted or prohibited. Highways maintained by Network Rail or over the Crown land are exempt (so a licence cannot be granted). There is no definition of adjacent in the legislation, and therefore the council define this to be very near, next to or adjoining.

There is not space outside of my premises, but my neighbour has advised that I can place my furniture outside of their premises – is this allowed?

Please contact us before making your application if the area where you wish to gain a licence is not immediately adjoining your premises.

Applications where this applies may be approved providing there are no concerns relating to health and safety, public amenity or accessibility. You will be expected to provide written confirmation of permission from your neighbour in these instances.

There isn’t enough space outside of our premises but there is space across the road – would this be approved?

Please contact us before making your application if the area where you wish to gain a licence is not immediately adjoining your premises. Applications where this applies may be approved providing there are no concerns relating to health and safety, public amenity or accessibility, and that an applicant has full responsibility for the furniture and any tables and chairs are solely used for takeaway purposes. 

The health and safety team will be particularly interested in the measures that you undertake to mitigate the risk to the public from crossing the road from your establishment to any tables and furniture (particularly for licensed premises selling alcohol), and therefore you should provide the council with a copy of your documented risk assessment at the time of making your application.

Do I need planning permission?

No. 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.

How does this interact with other regulatory processes, such as alcohol licensing and street trading?

It is important to note the grant of a pavement licence only permits the placing of furniture on the highway. Other regulatory frameworks still apply such as the need for alcohol licenses and the need to comply with registration requirements for food businesses.

If the applicant has a Premises Licence for on-sales under the Licensing Act 2003, the Business and Planning Act  2020(as amended) also brought in measures to allow for a temporary period of off-sales up until the 30 September 2022. A variation will not be required, and if there are conditions on a licence pertaining to off-sales, these are removed. We suggest that applicants refer to guidance for more detail surrounding these changes available here

Anything which is authorised to be done under the terms of a Pavement Licence is deemed also to be authorised under the street trading regime.

My premises are in an area where there is a public space protection order - PSPO - banning the consumption of alcohol in public. Do the pavement and alcohol licensing provisions in the Act override this?

The provisions in the Act do not override or suspend PSPOs that ban the consumption of alcohol in public. If your premises are located in such an area and you would like your customers to be able to consume alcohol outside or off the premises, you will need to apply for a permission under section 115E of the Highways Act 1980 to Devon County Council. 

To find out if your premises are in a PSPO area please click here.

What options are available to the council in determining my application?

We may:

  • 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, and impose conditions
  • refuse the application

How can the local authority and applicant consider the needs of disabled people when considering whether the requirements of the no-obstruction condition are met?

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, the council will consider the following matters when setting conditions, determining applications (in the absence of local conditions), and when considering whether enforcement action is required:

  • Section 3.2 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.

What is reasonable provision for seating where smoking is not permitted?

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
  • 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

Further, business must continue to have regard to smoke-free legislation under The Health Act 2006, and the subsequent Smoke-free (Premises and Enforcement) Regulations 2006.

Public Health England has published guidance for smokers and vapers during the COVID pandemic. https://www.gov.uk/government/publications/covid-19-advice-for-smokers-and-vapers/covid-19-advice-for-smokers-and-vapers