Licensing Of Pavement Cafés in Northern Ireland

August 15, 2014

Background

Pavement cafés are common in numerous cities and towns across the United Kingdom and Ireland, despite the inclement weather we experience. In response to prevelance of pavement cafés operating throughout Northern Ireland, the Department for Social Development (“DSD”) issued a consultation paper in December 2010 regarding the licensing of pavement cafés. The phenomenon of such pavement cafés in Northern Ireland seemed to gather momentum, particularly since the introduction of the smoking ban in 2007. However, currently no legislation exists to enable the authorisation and control of such pavement café areas.

Roads Service, an Agency within the Department for Regional Development (DRD), has certain powers of enforcement where they can enforce an unlawful occupation of an adopted surface where the free-flow of pedestrians or vehicles is restricted or where public safety compromised. To date, Roads Service has adopted a “toleration policy” in relation to pavement cafés, however this is not considered to be a realistic or feasible solution going forward.

In Great Britain and the Republic of Ireland, local authorities are responsible for developing policy and criteria against which applications for pavement cafés are assessed and for ultimately granting the necessary permission. In the absence of such legislation in Northern Ireland, the DSD carried out an appraisal of the impact of pavement cafés in Northern Ireland and it noted that a developing café culture can have a positive affect on urban environments, help promote town and city centres, make a difference in terms of attracting visitors and tourists and contributes to the general wellbeing of communities. The appraisal also concluded that a common, clear and transparent legislative framework would be required in order to enable a café culture to develop and hence the Pavement Café Bill was drafted.

The Licensing of Pavement Cafés (Northern Ireland) Act 2014

To this extent, the Licensing of Pavement Cafés (Northern Ireland) Act 2014 (“the Act”) was introduced in the Northern Ireland Assembly in Bill format in June 2013. This piece of primary legislation is has been drafted to make provision for the regulation by district councils of the placing in public areas of furniture for use for the consumption of food or drink. The Act received Royal Assent on 12 May 2014 and has not yet commenced.

Main aspects of the Act

The Act includes the following main provisions:-

1. Requirement for pavement café licence

In very broad terms, the Act makes it an offence to place furniture for use for the consumption of food or drink on a public area unless the furniture is temporary and the business or person holds a pavement café licence. Public area is defined as a place in the open air to which the public has access without mpayment as of right and which is not in a market area. Furniture means tables, chairs, umbrellas, barriers, heaters etc. and it is of a “temporary” mnature if it can all be removed by the business within 20 minutes.

2. Application for a licence

A business involving the supply of food or drink to members of the public or a section of the public must apply to the local district council for a pavement café licence. In relation to an application, there is a period of 28 days after receipt of the application during which time the public can view the application and make representations in writing to the council. Each council must appropriately (and at its own discretion), publicise the fact that representations may be made during this period of 28 days. Furthermore, the onus is on an applicant to fix the requisite notice to mthe premises which is the subject of the application (“the Display Notice”) and it must remain in place from the day the application is sent to the council until the end of the period for representations.

Before the council determines the application it must consult with the DRD and if the premises mare licensed as a pub/off sales, the council must also consult the local police. The council has ma discretion to consult the police for any other premises that are not pub/off sales. A pavement café licence shall, unless surrendered, revoked or suspended, remain valid until the period specified by the council in the licence, or where no such period is specified, indefinitely.

3. Presumption in favour of the grant of the licence

Unless the council considers that a licence application should be refused on the following grounds, it must grant the application:-

a) Where any part of the public area is unsuitable;

b) That the placing of furniture on any part of the area would be likely to result in undue interference or inconvenience to people or vehicles in the vicinity, or likely to result in disorder;

c) If the applicant knowingly made a false statement in a material respect in connection with its application or failed to comply with the Display Notice requirements;

d) If the applicant has at any time had a pavement café licence revoked or that could have been revoked for reasons within the applicant’s control.

4. Licence conditions

Every licence must include a condition requiring temporary furniture not to be placed on any public area other than that covered by the licence. A condition requiring the licence holder not to allow consumption of alcohol when using the furniture on the area in the licence must be included where the premises are licensed as an off licence. This condition may be included in any other pavement café licence (whether or not the premises are licensed), if the council is of the opinion that it would be likely to lead to disorder.

The council has discretion to impose such other conditions as it considers reasonable, including; limiting the days/times when the furniture can be placed in the area; limiting the mkind, amount, size, nature of the furniture; etc. A licence holder may apply to the council to vary certain conditions in the licence or to vary the area to be covered by the licence (provided at least 75% of the original area falls within the area to be varied).

5. Revocation, suspension and compulsory variation

The council has the discretion to revoke a licence on the grounds mentioned in 3 above or where any fee due has not been paid without reasonable explanation. The council may suspend a licence if it is satisfied that grounds a) or b) in 3 above are likely to apply on a temporary basis. The council may also suspend a licence if grounds c) or d) in 3 above applies or where a fee remains unpaid.

The Act includes provisions for compulsory variation of licence conditions by the council in certain circumstances, including varying the area covered by the licence. Before any decision to revoke, suspend or compulsorily vary conditions is taken, the council must serve notice on the licence holder and allow them at least 21 days to make representations.

6. Appeals

Where a council has given notice of a refusal, grant with conditions, renewal, variation, revocation, suspension or extension, the licence holder has a right of appeal to the Magistrate’s court within 21 days from the date on which such notice is given.

General comments on the Act

At the Committee Stage of the Bill, representatives from local authorities and licensing bodies in Northern Ireland, Including the Northern Ireland branch of the Institute of Licensing, made representations to the Assembly on the Bill. These included:-

 definition of a pavement café was deemed to be loosely worded in that a possible consequence might be that any premises providing any form of food or drink could apply, including an amusement arcade, taxi depot or from a vending machine;
 meaning of public area could result in licences being obtainable on some, but not other, parts of the same stretch of footpath;
 potential creation of a two tiered licensing system in respect of the consumption of alcohol depending on whether land is publically or privately owned. Those that are on public area would apply to the council and those on private land would still have to apply to the County Court, which is more costly and more onerous;
 Conversely, does the pavement café licence system potentially create licensing of premises for the consumption of alcohol “by the back door”, i.e., without requiring the court’s consent on public area (and query whether private land with a public right of way would be included within the public area definition);
 Concern that the broad flexibility in determining the design, style, quality may lead to different standards throughout council areas;
 No inclusion of a group to comment on disability access issues as a statutory consultee;
 Concern that the actual cost of administering the scheme will far exceed what a council would deem appropriate to charge businesses in an already difficult economic environment;
 Grounds for refusal are too limited therefore hindering a council’s ability to engage in effective control. Suggested widening the grounds to include environmental problems or where it is detracting from adjacent retailers or occupiers;
 Requirement for more enforcement sanctions to cover minor infringements, such as a fixed penalty scheme.

Concluding remarks

The timeline for commencing the Act was envisaged to be the summer or autumn of 2014. However, the Review of Public Administration is underway which will see significant changes in this jurisdiction including reducing the local authorities from 26 to 11 by April 2015. Post the elections in May 2014, shadow councils will operate during the transitional period and other items are likely to feature more prominently on the agenda. Draft Guidance for local councils has been drafted, but which would appear to create confusion in some areas and its aims have been questioned. Secondary legislation in the form of Regulations are also anticipated.

Whilst the principles behind the Act are welcomed and it offers opportunities to enhance and grow a vibrant café culture in Northern Ireland, there are a number of technical and practical issues that, in my opinion, still need to be teased out.

This article had been produced for general information purposes and further advice should be sought from a professional advisor. This article appeared in the 9th edition of the IoL Journal of Licensing in July 2014.

Claire McNally, Associate Solicitor specialising in Licensing at Cleaver Fulton Rankin
Solicitors