Last month an Inspector dismissed an appeal from a pub owner challenging a planning enforcement notice in relation to the erection of a roof structure and timber walls with plastic windows surrounding two separate external seating areas to the rear and side of the pub without planning permission.

The decision highlights the confusion amongst those in the leisure industry about what is and what isn't permitted in England, without planning permission, when it comes to external seating, in particular in light of changes made during the Covid-19 pandemic.

Background to the appeal case

The pub in the appeal case was a locally listed building, making it a non-designated heritage asset. The pub owner had erected the roof and wall structures without planning permission. The timber wall structure with plastic windows was erected around an external seating area to the side of the pub and was held to be out of keeping with the character and appearance of the pub building.  

The structures were not moveable and therefore fell outside the relevant permitted development rights (see below for further details). As a result, planning permission was required. The Inspector concluded that even if the pub owner had applied for planning permission, this would not have been granted on the basis of the relevant policy in the development plan applicable to non-designated heritage assets as well as other factors. 

The pub owner tried to rely on the Written Ministerial Statement issued in March 2021 by Robert Jenrick MP, in which the Government sets out its proposals for supporting the re-opening of outdoor hospitality with reference, amongst other things, to outdoor hospitality on private land as well as pavement licences, encouraging local authorities to plan for outdoor dining and making the relevant changes to make this as convenient as possible for businesses and the public. However, the Inspector concludes that whilst the Government clearly intended to help businesses in the leisure industry, this did not extend to permitting breaches of planning control.  

So what is permitted without planning permission?

The answer is it depends. There are different rules in place depending on whether the outside seating area is on your own land (eg a pub garden) or whether it is on the adjacent public highway. The former is governed by rules introduced as a temporary relaxation of permitted development rights during the pandemic, which have now been made permanent. The latter is governed by the Business and Planning Act 2020, a piece of legislation brought in to help the leisure industry during the pandemic by making it easier and quicker to obtain a pavement licence. 

What can you do on your own land?

First introduced in 2020 as a temporary relaxation of permitted development rights to help the leisure industry recover from the impact of the pandemic, these rights have now been made permanent. 

Pubs, cafés and restaurants are permitted to erect a moveable structure (eg a marquee) on their own land for an unlimited number of days. No planning permission is required.

Listed pubs, cafés and restaurants, as well as historic visitor attractions are permitted to erect a moveable structure for 120 days in a 12-month period. No planning permission is required, but the permitted development right is subject to prior approval by the local authority.

Note these permitted development rights do not apply to scheduled monuments.

The structure erected by the pub in the appeal case fell at this hurdle, as it was not moveable and therefore did not fall within these permitted development rights.

Are there restrictions on moveable structures on your own land?

  • These permitted development rights, both for listed and non-listed properties are subject to a number of restrictions, in particular:
  • the structure must not be within two metres of the curtilage of a residential property;
  • the height of the structure must not exceed three metres;
  • the footprint of the structure must not exceed the lesser of 50% of the footprint of the building or 50 square metres;
  • the structure must not be used for the display of advertising.

What can you do on the highway next to your land?

Different rules apply  to the placing of tables and chairs and other items on the highway adjacent to your property where a pavement licence will be required.  

The Business and Planning Act 2020 introduced new temporary rules to make it quicker, cheaper and easier for businesses to apply for a pavement licence, thereby helping these businesses to recover from the impact of the pandemic. Under  these new rules the fee is capped at £100 and the consultation period is five working days, with a further five working days for the local authority to determine the application. No additional planning permission is required as the pavement licence will provide a deemed planning permission.

These temporary rules were initially introduced to allow pavement licences until 30 September 2021, but this has been extended until 30 September 2022. Occupiers may choose to obtain planning permission as before as there is no guarantee that this period will be extended.

Who benefits from the pavement licence rules?

All businesses which use premises for the sale of food or drink for consumption (on or off the premises).  This includes pubs, cafes, bars, restaurants, snack bars, coffee shops, ice cream parlours. It also applies where the use is ancillary to another main use, eg a café in a supermarket or an entertainment venue.

Are there restrictions or conditions for pavement licences?

The highway to which the pavement licence will apply must fall within section 115A(1) of the Highways Act 1980. In short, this means it must be a footpath or a road where vehicular traffic is prohibited. 

The furniture permitted by the pavement licence must be removable, which means it must be easy to move and stored away.

The following furniture is permitted:

  • counters or stalls for selling and serving food or drink;

  • tables, counters or shelves;

  • chairs, benches or other forms of seating;

  • umbrellas, barriers, heaters and other articles used in connection with the outdoor consumption of food or drink

There are two conditions that apply to all pavement licences under the Business and Planning Act 2020. Note these do not apply to licences under the Highways Act 1980.

  • A no-obstruction condition. This means that the tables and chairs must not prevent pedestrian traffic from being able to use the pavement.  The Government has published guidance on the matters for local authorities to take into account.  In most circumstances a minimum distance of 1.5m between the edge of the pavement and the obstacle will be acceptable.  However, local authorities are able to set their own conditions in this respect.  With the return to pre-pandemic life following the lifting of restrictions, some local authorities now require wider clearances to cater for a larger volume of pedestrians.  In some areas this may mean that fewer applications will succeed.

  • A smoke-free seating condition.  Reasonable provision must be made for seating where smoking is not permitted.

In addition to these two general conditions, local authorities are able to impose further conditions that they consider reasonable. This may, for example, include restricted times during which the outside seating may be used, a requirement for the furniture to be stored away overnight, or a noise management plan.  

Pavement licences under the Business and Planning Act 2020 are not available on Crown land or land maintained by Network Rail. 

What will happen after 30 September 2022?

There has recently been a consultation on the success and benefits of pavement licences and it remains to be seen whether the current rules under the Business and Planning Act 2020 will be extended beyond 30 September 2022. However, as things currently stand, the temporary pavement licence rules will expire on this date and we will go back to the position of pavement licences under the Highways Act 1980 and a requirement to obtain planning permission as pavement licences under the Highways Act 1980 do not include deemed planning permission. 

Where do these rules apply?

The above rules apply only in England. Different rules apply in Wales, Scotland and Northern Ireland. 

How can we help?

TLT’s planning lawyers are experienced in a full range of planning matters.  If you would like to discuss your requirements, please get in touch. 

Contributor: Florien Stone

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.

 

Written by

Katherine Evans

Katherine Evans

Date published

21 March 2022

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