Levelling Up and Regeneration Act 2023 pavement café licensing process
This section describes the pavement café licence application process under the Levelling Up and Regeneration Act 2023.
- Applying for a licence
- Advanced information
- Application form
- What does a pavement café licence allow?
- Off-sales of alcohol authorisation
- Consultation process
- Determination of application
- National and local conditions
- Licence application fee
- Receiving your licence
- Amending an existing licence
- Enforcement and termination
Applying for a licence
Eligibility: 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 licence to place removable furniture in a relevant highway.
Businesses that do not use their premises for the sale of food or drink, for example salons, are ineligible. Though they can apply for permission to place furniture on the pavement under the Highways Act 1980.
Identifying a pavement café area: The areas which can be considered for a pavement café licence is defined in the Levelling Up and Regeneration Act and the Highways Act 1980. It can be a footway, a footpath, or a carriageway where traffic is restricted. These areas will generally be adopted highways (maintained by the Council) but the process also applies to privately maintained highways, as defined by Section 115A of the Highways Act. It cannot be Crown land or land maintained by Network Rail.
If the proposed pavement café area is situated adjacent to any other property than the applicant’s premises, the written consent of the interested frontages is required. For example, this would apply if the pavement café area proposed includes the area in front of a neighbouring property. The applicant will also need to provide evidence that their public liability insurance will cover the use of these areas.
Advanced information
What is a highway? A highway is a way (i.e. a defined route, such as a road, bridleway or footpath) over which the public have the right to pass and re-pass. A highway can be maintained by the landowner or the occupier (privately maintained) or by the local authority (adopted highway).
What is an adopted highway? Applicants can check if the area under consideration is adopted highway on the City of York Council website: road adoption. If in doubt, please contact the Pavement café Licensing team to confirm the status of the area you are considering.
What to consider before submitting an application? Licences are unlikely to be granted in some areas, due to narrow footways, high traffic or pedestrian flows and other safety and accessibility issues. This is primarily based on the criteria set out in the government’s Pavement licences guidance and Inclusive Mobility guidance.
Licences will need to meet the following requirement:
- on footways, the café furniture (including barriers) will need to leave at least 1.5 metres available for pedestrians to get past. This is increased to 2 metres for high pedestrian flow areas (for example busy junctions, areas near pedestrian crossings or near bus stops)
- in the pedestrianised area or where traffic is restricted, it may be possible to license a pavement café area on the carriageway. The café furniture (including barriers) will need to leave at least 3 metres available on the carriageway (minimum width required for emergency vehicle access). In some cases, an alternative access arrangement for emergency vehicles may be agreed with the emergency services. Where this is possible, a corridor for passing pedestrians with a minimum width of 1.5 metres will still be required, increased to 2 metres in high footfall areas
- depending on their location, licences may be restricted to footstreet/traffic restriction hours
Please note that other organisations might need to be consulted or consent to the licence, where they have rights or manage specific areas. For example, this applies to Make It York in parts of the footstreets.
Application form
Applications must be submitted by using the council’s standard application form and providing electronic versions of the required supporting documents (detailed in the application) to support the application.
- email address: cafelicence@york.gov.uk
- Webpage: Pavement café licences
The applicant needs to provide the following information:
- specify the premises and the area of highway where the café is proposed
- specify the purpose (or purposes) for which the furniture will be used, which must be to sell or serve food or drink, and/or for use by other people for the consumption of food or drink - in both cases the food or drinks must be supplied from, or in connection with relevant use of the premises
- a plan clearly showing the proposed area to be covered by the licence in relation to the highway and the licensed premises (if the plan is not to scale, measurements will need to be clearly shown). This should include details of the barriers to show that they comply with this guidance and can be supported by photos showing the proposed furniture and information on how it will be set out within the proposed area
- a plan to show where the furniture will be stored, off the highway (including footways), when the pavement café area is not in use. This includes storage when the premises may be open but the furniture is not allowed on the highway, for example before pedestrianised hours or if the highway is needed for another purpose
- if the application covers an area which is adjacent to other premises (for example in front of neighbouring premises), evidence of the owner’s consent and insurance cover are required
- describe the type of furniture to which the application relates, for example: tables, chairs, parasols, and so on
- state the proposed duration of the licence (up to 12 months)
- specify the days of the week and the hours when the area will be in use
- public liability insurance certificate or similar evidence of cover for a minimum amount of £5 million, including the proposed outdoor area(s)
- specify the date on which the application is made
- contact details for the applicant
- evidence before the end of the consultation period that the applicant has met the requirement to give notice of the application (for example photographs of the notice placed in the premise’s windows on various dates during the 14-day consultation period)
- information on any existing/previous pavement licence or of previous licence application (if applicable)
- evidence of completion of the ACT Awareness E-learning course by the named licence holder
Applicants are expected to inform the council of any changes to the details provided in the licence application, including licensee detail changes or change of business name, by using the amendment option on the application form available on the council’s website.
What does a pavement café licence allow?
A licence permits the business to use furniture placed on the highway to sell or serve food or drink and/or allow it to be used by people for consumption of food or drink supplied from, or in connection with the use of the premises.
Only the furniture included in the licence is permitted so this information needs to be included in the application.
The furniture which may be permitted under licence is:
- 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
- umbrellas, screens, and bins used in connection with the outdoor consumption of food or drink
- electric infrared outdoor heaters (no gas heaters or fire pits)
- barriers will be required to enclose the café area. These should be stable and sturdy canvas separator on metal uprights with a tapping rail (no protruding parts, no ropes or chains) - this is to provide positive guidance for people who are blind or visually impaired
Music speakers are not permitted.
Items such as canopies, awnings and blinds which are to be attached to the building will usually require advertisement consent and/or planning permission. If an applicant wants to include such equipment in a pavement café application, advice should be sought on planning permission requirements before the licence application is submitted.
The furniture must be removable (not a permanent fixed structure), able to be moved easily, and stored away when the premises are shut or if the highway is needed for other purposes.
Off-sales of alcohol authorisation
The grant of a pavement licence only permits the placing of furniture on the highway. A pavement licence does not negate the need to obtain approvals under other regulatory frameworks, such as the need for a licence to sell alcohol, and the need to comply with registration requirements for food businesses.
Temporary amendments to the Licensing Act 2003, under the Business and Planning Act 2020, allow the sale of alcohol by eligible holders of an on-sale licence for consumption off the premises without needing to apply for a variation of their licence.
These temporary amendments apply if the premises had a licence that permitted sales of alcohol only for consumption on the premises on 22 July 2020, and the premises still retain that licence. More details can be found in the guidance accompanying the Business and Planning Act 2020.
This is currently in place until 31 March 2025. It will remain legally independent and separate from the pavement licences process.
This provision does not apply to premises that are authorised to sell/supply alcohol by means of a ‘club premises certificate’, for example private members clubs.
Advice should be sought from the Licensing Team for alcohol licensing issues on email: licensing@york.gov.uk.
Consultation process
The applicant is required to affix a notice (using the council’s standard notice template provided on our website) to the premises. The notice must be easily visible and legible to the public and affixed on the day the application is submitted to the local authority. Applicants are encouraged to keep evidence of this (by taking a picture of the notice).
The applicant must ensure that the notice remains in place for 14 days, beginning the day after the application is submitted to the local authority.
The council will consult with North Yorkshire Police Licensing Section, Make it York and/or the York Museum Trust (where relevant), and any other persons or groups it considers appropriate.
The notice includes information for members of the public to email the council with a request for further information. If they want to consult the relevant documents for a specific application, these will generally be sent by email (excluding any personal information). Members of the public are invited to email their comments to the council within the 14-day consultation period.
Determination of application
Once an application is received, the authority will aim to check the documents provided within 1 working day and acknowledge the receipt of a valid application or request further information from the applicant where required. Please note that the application may be refused if the required information has not been provided.
The local authority will aim to determine the application within 28 days (starting on the day after the application has been acknowledged as complete, including 14 days for the consultation period and 14 days for determination after the end of the consultation period).
If the local authority fails to consider the application within this 28-day period, the pavement café licence applied for will be deemed to have been granted for a maximum period of 2 years. Please note that the national and local conditions set out below (as advertised by the council on the day prior to the application submission date) will automatically apply to applications which are deemed granted.
If the council determines the application before the end of the determination period, the council can:
- grant the licence in respect of any or all of the purposes specified in the application, for some or all of the parts of the highway specified in the application, and impose additional conditions; or
- refuse the application (please note that the application can also be refused by the authority if the information required to determine the application has not been provided)
If the applicant is unhappy with the decision taken by the authority, the applicant will be invited to log a complaint through the Have Your Say process. This will enable concerns to be escalated and considered by a member of the council’s management team. There is no statutory or other formal appeal process against a decision made by the council under the Levelling Up and Regeneration Act 2023. A judicial review process is available via the High Court.
National and local conditions
The following national and local conditions apply.
National conditions
The 2020 Act sets out two conditions which apply to pavement licences which are granted or deemed to be granted; these are: a no-obstruction condition and a smoke-free seating condition.
National ‘no obstruction’ condition referred to in 5(54) and 3(6) of the Business and Planning Act 2020:
This condition refers to the right of traffic (other than vehicular) to enter and pass along the highway and to have normal access to premises adjoining the highway. It also includes the need for permitted traffic to be able to pass and utilities to have access to their apparatus.
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.
This condition will be applied as follows:
- cafés on footways in streets with a level difference between the footway and the carriageway (streets with kerbs, for example Goodramgate) - a 1.5 metres corridor needs to remain free of obstructions for people to get past the pavement café area. This will be increased to 2 metres in high footfall areas (for example at busy junctions or near bus stops) - please note that this includes the base of the pavement café barriers, which need to be fully within the licensed area
- cafés on footway in streets with level access between the footway and the carriageway (streets without kerbs, for example Coney Street) - pavement cafés may be allowed over the whole footway width
- cafés on carriageway during pedestrianised hours - pavement cafés may be permitted on the carriageway on footstreets, during pedestrianised hours, but a 3 metres corridor will need to remain free of obstructions for emergency and authorised vehicles to get past
National condition relating to smoke free seating:
Where seating used for the purpose of consuming food or drink has been, (or is to be) placed on the relevant highway, the national 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. This can be done by:
- providing 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 provided or permitted to be left on furniture where smoke-free seating is identified
- providing a minimum 2 metres distance between non-smoking and smoking areas, wherever possible
Local conditions
The council reserves the right to add additional conditions to individual licence applications where it is appropriate to do so. Current local conditions are listed below.
Emergency access:
For pedestrianised streets, a minimum width of 3 metres must remain free and unobstructed on the carriageway to facilitate emergency vehicle access. This figure may be increased where there is a heavy pedestrian flow.
Any pavement café area shall be vacated immediately if requested by the local authority, the Police, any other emergency service, or a statutory undertaker, without any liability for compensation, refund of application fee, or damage arising. The reasons for the area being vacated might be public safety, emergency, to allow events or works to be carried out in, under or above the highway or in the vicinity of the area, public procession, unrest, disturbance, or any other reason deemed necessary by the local authority.
Area to be used:
Only the licensed and designated area shall be used for trading.
Times of use:
The times and days of the week when the pavement café use is permitted will be stated in the licence. This might be linked to footstreet hours.
Any application which is deemed granted will only be allowed to operate between 10.30am and 5.00pm.
Access to the premises:
A clear pathway, at least 1.5 metres wide, shall be maintained within the licensed area to allow entrance and exit from the licensed premises.
Licence holders have a separate duty to make reasonable adjustments to enable access to their shops and services for people with reduced mobility or other protected characteristics under the Equality Act 2010.
Counter terrorism:
The named licence holder is required to have completed the ACT Awareness E-learning course. Evidence of the course completion is required for the licence application to be validated.
Licence holders are invited to further support the work of the council and Police services on security and counter terrorism by ensuring that staff complete the online training course as well.
Licence holders should also check their CCTV systems, where in place, to ensure they are compliant and work correctly.
Public liability insurance:
The licence holder shall maintain a policy of public liability insurance indemnifying the council against any injury or damage to any person or property and against any actions, proceedings, claims, demands or liability arising from the use of the licensed area (including any chairs and tables and any other objects including but not limited to heaters, where these are used).
For this purpose, the licence holder must take out a policy of insurance in the sum of at least £5 million in respect of any one incident. Evidence of adequate cover is required for the licence application to be validated.
A valid third-party public liability insurance certificate shall be held by the licence holder, at all times. The licence holder must produce to the council on request the current receipts for premium payments and confirmation of the annual renewals of the policy.
Furniture:
Only approved furniture (as detailed in the licence) shall be placed within the designated area. No other furniture (such as advertising boards) is permitted.
All equipment is to be suitable for use outside (non-reflective and of reasonable substance such that it cannot easily be pushed or blown over by the wind), kept clean and well maintained. No damaged equipment shall be used.
Tables, chairs and barriers shall not be positioned so as to obstruct or obscure road signs, visibility at junctions, traffic signals. Screens may be considered on a case-by-case basis. Where permitted and above 1 metre high, screens must be transparent.
All furniture must only be brought out at the start of permitted hours and must be removed at the end of the approved hours of use. Suitable storage for all furniture shall be identified by the applicant within the licensed premises and used for storage when the furniture is not in use thereafter. No equipment is to be stored on the highway at any time outside the licensed hours.
Barriers:
Barriers are required to comply with British Standard BS 8300-1:2018 Design of an accessible and inclusive built environment, which states:
- outdoor refreshment areas should be contained by barriers to all sides, to ensure that moveable furniture does not spread across clear pedestrian routes causing an obstruction.
- the feet or base of temporary or permanent barriers should not project into the minimum clear width of any access route
- barriers should incorporate a solid detectable rail or edge not higher than 150 mm above ground level to allow detection for people who are blind or partially sighted using a white cane
- barriers should contrast visually with the background against which they are seen
Barriers must be placed to enclose the pavement café area, unless stated otherwise in the licence.
For pavement café areas which are licensed on the carriageway in a street with level differences marked by kerbs between the footway and the carriageway, barriers will generally not be required between the carriageway and the kerb as the kerb can be used to guide visually impaired users. The kerb will therefore need to remain free of obstructions at all times.
A gap of 1.5 metres (and no wider) is required to give access to the premises.
Parasols:
Parasols may be permitted but they need to be included in the application and expressly permitted in the licence. Where permitted, parasols must not extend beyond the licensed area and shall be no lower than 2.1 metres and adequately secured. Gazebos or parasols with sides are not permitted.
Outdoor heaters:
If outdoor heaters are to be used in the licensed area, they need to be included in your application and must be electric infrared heaters (meeting BS Standards BS EN 60529:1992 for electric heaters). Gas heaters or fire pits are not permitted.
Patio heaters that attach to the sides of the building usually require planning permission and can therefore not be permitted under this licensing process.
Where electric infrared heaters are permitted, the council expects licensees to reduce their environmental impact by switching to green energy tariffs and/or offsetting the emissions linked to the use of the outdoor heaters.
Electrical cables:
Cables must be protected by an anti-trip cover within the licensed area.
Cleanliness:
The licence holder will ensure that the designated area is maintained in a clean and tidy condition. The licence holder shall also take appropriate precautions to prevent the surrounding areas from becoming littered, as a result of trading activities or customers smoking near the licensed area.
Use of open vessels:
Only reusable plastic or cardboard containers (or similar materials, not glass) may be used for outdoor customers.
Conduct of licence holder and customers:
The behaviour of customers is the responsibility of the licence holder. The customers must not be a nuisance or annoy users of the highway or tenants/residents of adjoining premises.
The licence holder and customers must not unreasonably stop, endanger or hinder pedestrians, cyclists or vehicles using the highway.
Repeated complaints of this nature may result in the licence being revoked.
The licence holder is expected to co-operate with the reasonable needs of neighbouring premises. If there are disputes, licences might be revoked.
Public and staff health and safety:
The licence holder will be responsible for ensuring that uses conform to any applicable public health guidance (for example on social distancing) and that any reasonable crowd management measures needed as a result of a licence being granted are in place.
The licence holder is responsible for the health and safety of their staff working in the licensed area. Measures to mitigate health and safety concerns cannot be transferred to the local authority for action.
Toilet facilities:
Toilet facilities must be available for customers to use on the premises.
Publicity:
The licence shall be available to view within the premises to which it relates.
Validity:
The licence shall be rendered invalid, should the licence holder cease to own the premises or cease employment at the premises to which the licence relates. A new application must be made by the new tenants/owners.
Where a licence is granted in an area which is subject to a Traffic Regulation Order (TRO) to restrict vehicular access, the validity of the licence might be conditional on the TRO being in place. If the TRO expires or changes, the licence may be revoked.
Claims:
The council shall be indemnified against all claims, actions or other costs, howsoever arising.
Licence application fee
The cost of a 12 month licence is £500 for first time applications and £350 for renewals.
An application will be treated as a renewal if it is made by the same license-holder, it is in respect of the same premises and it is on the same terms as the expired licence.
Receiving your licence
If the decision is taken to grant the licence, an electronic copy will be forwarded to the applicant. The applicant will be required to sign and return a copy to the council. A signed copy should be printed for display at the premises.
Provided that other approvals and licences are in place (if required), the applicant will then be able to commence use.
If the local authority has not responded within the statutory period (28 days), the licence application will be deemed granted and the authority will issue a two year licence including the relevant conditions (these will include the national and local conditions publicised by the council on the day prior to the application form submission date).
Amending an existing licence
If an applicant wishes to extend or vary the terms of a pavement cafe licence, they will need to submit a new application as set out above, and an additional application fee will be charged.
Enforcement and termination
If a condition imposed on a licence is breached, the local authority will issue a notice requiring the breach to be remedied and seek to recover any costs (where applicable).
Up to 2 letters (notices) will be sent to licence holder asking for breaches to be addressed. If 2 letters have been sent for the same issue(s) and the licence is still not being complied with, the licence will be revoked.
The authority may revoke a licence in the following circumstances:
- for breach of condition, (whether or not a remediation notice has been issued); or
- where:
- there are risks to public health or safety
- 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 and/or litter is not being cleaned up
- the applicant provided false or misleading information in their application - for example they are selling hot food and applied for tables and chairs on which only drinks could be consumed; or
- the applicant did not comply with the requirement to affix the notice to notify the public for the relevant period
Key issues for which enforcement action will be taken are:
- furniture set out or stored on the adopted highway, outside of the licensed times - This is a significant issue in the footstreets as the times of use are generally linked to the start and end of the pedestrianised period. When licence holders set out their tables and chairs too early, pedestrians have to step into the carriageway, in conflict with delivery vehicles and other traffic
- area where the furniture is set out differs from what has been agreed in the licence - This is a significant issue as it can impede wheelchair access as well as access for authorised vehicles and emergency services
- furniture in use differs from that specified in the licence - The majority of issues under this category relates to premises not installing the required barriers to demarcate the pavement café area or barriers not being installed as agreed in the licence
The council may also revoke the licence 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 pedestrianised.
The local authority also reserves the right to revoke or suspend the licence if the area is required for other highway purposes (for example for street or road works).
The licence holder can also surrender a pavement licence at any time by giving notice to the local authority. The application fee will not be reimbursed.