Will recent planning changes boost Scotland's café culture?

The changes have been lauded for providing businesses with more flexibility to offer outdoor eating and drinking at their premises, by simplifying the process and removing some of the ‘red tape’, but will it really make a difference?

Firstly, the planning relaxations only apply where part of a public road or footpath is being used, so planning permission may still be required for outdoor areas on private land. Despite that distinction, there will undoubtedly be businesses who will benefit from these changes, particularly where planning permission for an outdoor pavement area would have been difficult to obtain. If nothing else, it will reduce the costs involved in setting up those outdoor areas, but operators must be aware that other permissions still need to be obtained, particularly if the outdoor area is to be used for the consumption of alcohol.

Consent from the appropriate Roads Authority, under Section 59 of the Roads (Scotland) Act 1984, is required before any furniture can be placed on a public footpath or road. Operators should check what their Local Authority’s requirements are, as processes and costs can vary significantly throughout Scotland. There are likely to be restrictions on the size of any permitted outdoor area, as well as the types of furniture that can be used, so the use of the pavement by pedestrians is not impeded.  Removable barriers are also required in many areas, to ensure that the outdoor area is clearly delineated.

If alcohol is to be consumed in the outdoor area, operators will also need to consider how the area will be licensed. If the outdoor area is temporary, it can be licensed for alcohol consumption using occasional licences, which is a relatively straight-forward process. If the outdoor area will only be utilised during certain times of the year, some Licensing Boards will allow occasional licences to be used to cover those specific periods, whilst others will insist that the outdoor area is included within a premises licence. Operators should be mindful that adding an outdoor area to a premises licence will require a variation application, which will likely need to be considered at a Licensing Board hearing, and that process can take several months.

As you would expect, there are also restrictions on the times during which any outdoor areas can be used. These times are usually set by each Licensing Board for their specific area, as part of their Statement of Licensing Policy, and again can vary significantly throughout the country. Some Licensing Boards also have other requirements for outdoor areas to be licensed, such as mandating that food must be served in the outdoor area. 

Whilst removing the need to obtain planning permission for some outdoor areas is a welcome change, particularly if it reduces the costs for operators looking to create new outdoor spaces, there are still various other considerations that operators need to be mindful of to ensure any outdoor area is operated lawfully. Despite the suggestions that these changes will provide more flexible use of outdoor spaces and help the hospitality industry recover from the pandemic, it seems unlikely that Scotland’s café culture will be revolutionised as a result.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2023. Specific advice should be sought for specific cases. For more information see our terms & conditions.