Version	Description of changes
V1	COVID_19 Economic Recovery – Interim CYC pavement café licensing process, dated 9/07/20		Initial guidance published by CYC before the Bill was enacted to enable businesses to apply for licences
V2	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 23/07/20		Updated guidance following the enactment of the Business and Planning Act 2020
V2	Key changes between V1 and V2: - Removal of the interim process - Consultation and determination periods changed from 5 working days to 7 calendar days (as per legislation) - Duration of licence changed to minimum 3 months and maximum 12 months for all licences issued under the Business and Planning Act 2020 - Addition of the national smoke free seating condition - Application of the local conditions to deemed licence applications
V3	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 18/11/20	Updated guidance
V3	Key changes between V2 and V3: - Screens will be permitted on a case by case basis - Parasols will be permitted to cover the licensed area, but must be applied for - Electric patio heaters are now permitted. Fuel burning patio heaters will not be permitted. - Electric cables must be covered across the highway and in the licensed area - More detailed information on insurance requirements included - Additional information on the definition of outdoor areas
V4	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 26/11/20	Updated guidance
V4	Key changes between V3 and V4: - Addition of Parklet/Decked Area Guidance in Appendix C
V5	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 08/04/21	Updated guidance
V5	Key changes between V4 and V5: - Amendment of Parklet/Decked Area Guidance in Appendix C, change from SAG approval to Security and Safety Review
V6	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 07/09/21	Updated guidance
V6	Key changes between V5 and V6: - Updated dates in line with Business and Planning act 2020 extension - Removal of licence fee - Information on enforcement action updated - Updated information on Equality Act duty and support the work of the Council and Police services on security and counter-terrorism - -
V7	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 26/10/21	Updated guidance
V7	Key changes between V6 and V7: - Barrier guidelines updated to enclose area.
V8	COVID_19 Economic Recovery – Updated CYC pavement café licensing process, dated 22/11/22	Updated guidance
V8	Key changes between V7 and V8: - To be updated following 22 November 2022 Executive decision session.

1. Purpose

This guidance document~~note~~ presents City of York Council’s approach to issuing pavement café licences ~~in light of~~under the Business and Planning Act 2020 and in light of associated government guidance.

It describes the process through which pavement café licences will be issued in compliance with the Business and Planning Act 2020. These temporary licences will be valid for a maximum period of one year (and not beyond the end of 30 September 20232).

2. Pavement licences: temporarynew processlegislation and government guidance

Pavement café licences are granted by the local authority to allow businesses to place removable furniture in parts of the relevanthighway (generally footways and/or carriageways in pedestrianised areas).

~~On 25~~ June 2020, the government issued draft guidance on these licences to accompany licensing proposals introduced in the Business and Planning Bill in response to Covid 19. The Business and Planning Act 2020 came into force on 22 July 2020. The government guidance was updated on 22 July 2020. This was then extended until the 30^th September 2022 on the 19th of July 2021.

A temporary fast-track process, removing the need for planning permission, was introduced by the Business and Planning Act in 2020. The aim wais to offer a streamlined process to help with recovery from the Covid pandemic. This temporary process was initially set up for a year but has since been extended twice. Licences can therefore currently be issued until the end September 2023.

~~and to allow the licences to remain in place for a minimum period of 3 months and up to 30 September 2022.~~

The government’s “Pavement licences: guidance” identifies the following key elements of the temporary fast-track licensing process~~changes~~:

· The removal of the requirement for planning permission;

· The reduction of the consultation period for licence applications, from 28 to 7 days;

· The reduction in the time in which the local authority must determine the licence from 28 to 7 days, (after the ~~7 day~~7-day consultation period has ended), with the licences deemed to have been granted and valid for a year if the authority has not determined within this time period~~7 days after the 7 day consultation period has ended~~;

· The capping of the maximum fee that can be charged for a licence at £100; and

· Temporary amendments to the Licensing Act 2003, to allow ~~some~~ applicants, who have a licence to serve alcohol on-premises, to sell alcohol for consumption off the premises, without the need to apply for a licence variation.

It is important to note that 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 licences and the need to comply with registration requirements for food businesses. The changes introduced by the Business and Planning Act do not apply to land that is not covered by the regime for placing furniture on the highway in Part 7A of the Highways Act 1980 or to permanent structures (such as parklets).

1. It is important to note that 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 licences and the need to comply with registration requirements for food businesses.

1. 3. Business and Planning Act 2020 pavement café licensing process

This section describes the pavement café licence application process under the Business and Planning Act 2020~~new legislation and guidance~~.

a. 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 ~~the adopted~~a relevant highway.

Identifying a pavement café area: The licensed area should be adopted highway adjacent to the premises.

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. The applicant will also need to provide evidence that their public liability insurance will cover the use of these areas.

b. Advanced information

What is adopted highway: Applicants can check if the area under consideration is adopted highway (including footways) at this link: Road Adoption.

What to consider before submitting an application: Licences are unlikely to be granted in some areas, due to narrow footways, high trafficor pedestrian flows and other safety and accessibility issues. This is primarily based on the criteria set out in ~~Inclusive Mobility~~Inclusive Mobility (Section 43.12– available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1044542/inclusive-mobility-a-guide-to-best-practice-on-access-to-pedestrian-and-transport-infrastructure.pdf), resulting in licences unlikely to be granted in the following areas:

· On footways next to live carriageways(without traffic restrictions), where the footway width is less than 2.5m or 3m for high pedestrian flow areas. This is because aA corridor for passing pedestrians with a minimum width of 1.5m is required ~~by Inclusive Mobility~~, increasing to 2m in high pedestrian flow areas(e.g. busy streets and junctions, areas nearpedestrian crossings, etc); and

· In pedestrianised areasor areas where traffic is restricted

o Where the furniture would reduce the highway width to below 3m (3m is the minimum width required for emergency vehicle access), unless an alternative access arrangement can be put in place and agreed with the emergency services. Where this can be put in place, a corridor for passing pedestrians with a minimum width of 1.5m will still be required, increased to 2m in high footfall areas;

o Where the furniture would result in access being restrictedfor wheelchair and mobility aid users due to a lack of dropped kerbs/raised crossing points, if it is not possible to use temporary ramps or build permanent dropped kerbs/raised crossings;

o Licences are likely to be restricted to footstreet/traffic restriction hours;

o ~~Licences will be linked to the continuation of temporary Traffic Restriction~~ ~~Orders (TROs) and will be revoked if the TROs are revoked (e.g. footstreet extension areas and footstreet extended hours);~~

o Other organisations might need to be consulted/consent where they have rights or manage specific areas, for example, Make It York in the footstreets area.

c. Application form

Applications must be sent to ~~thelocal authority~~City of York Council by email using the Council’s standard application form and providing electronic versions of the documents listed below to support the application.

· Email address: cafelicence@york.gov.uk

· Webpage: www.york.gov.uk/PavementCafeLicences~~Cafe~~ ~~licence~~

This requires the applicant to provide the following information:

· Specify the premises and, the area~~part~~ of ~~the~~ adopted~~relevant~~ highway to which the application relates ~~(using a plan showing the location of the premises, so the application site can be clearly identified)~~;

· Provide a plan clearly showing the proposed area to be covered by the licence in relation to the highway and the licensed premises (if not to scale, ~~with~~ measurements will need to be clearly shown), potentially supported by photos showing the proposed furniture and information on how it will be set out~~potential siting of it~~ within the proposed area;

· If the application covers an area which is adjacent to other premises (e.g. in front of neighbouring premises), evidence of the owner’s consent and insurance cover are required;

· 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 drink must be supplied from, or in connection with relevant use of the premises;

· State the proposed duration of the licence (3 months minimum and up to 12 months);

· Specify the days of the week ~~on which~~ and the hours ~~between which it is~~when it is proposed to have furniture on the highway;

· Describe the type of furniture to which the application relates, for example: tables, chairs, parasols, screens, heaters, and/or stalls;

· Describe how/where the furniture will be stored, off the highway (including footways), when the pavement café is not in use. This includes storage when the premises might be in use (e.g. where will the furniturebe stored in the morning when the premises may be open but the furniture is not allowed on the highway before pedestrianised hours~~for example where the highway is required for other purposes during the day but the premises remain open~~);

· Provide 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;

· Provide contact details for the applicant;

· Provide 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 7 day consultation period);

· Provide ~~reference of~~information on any existing/previous pavement licence or of previous licence application ~~currently under consideration by the local authority~~ (if applicable).

Applicants are expected to inform the council of any changes to the details provided in the licencse application, including licensee detail changes or change of business name, via the use of the amendment option on the application form available on the Council’s website.

d. 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.

The furniture which may be used 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 ~~generally~~ be required to enclose ~~at either end of~~ the ~~pavement~~ café area. These should be stable and sturdy canvas separator on metal uprights with a tapping rail (no protruding parts, no ropes or chains~~, high colour contrast preferable~~). This is to provide positive guidance for blind and visually impaired ~~highway~~ users.

Music speakers are not permitted.

Canopies, awnings, blinds etc. which are to be attached to the building will usually require advertisement consent or planning permission. If an applicant wants to include such equipment in a pavement café application, advice should be sought on planning permissionrequirements before the application is submitted.

Theis furniture must be removable (i.e. 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).

It is important for the applicant to note that any licence issued under this process will not be valid after the end of September 20223. This should be considered when investing in outdoor furniture and equipment asit may ~~these might~~ not be possible to continue usingethese after the licence expires.

Off-sales of alcohol authorisation

Premises licensed to sell/supply alcohol for consumption on the premises (pubs / bars / restaurants / cafes) can ~~now~~ also sell/supply alcohol for consumption off the premises without restrictionsunder the temporary licensing regime.

~~Premises licensed to sell/supply alcohol for consumption on and off the premises can now also sell/supply alcohol for consumption off the premises without restrictions, f~~For example if there is a condition on your licence (such as ‘off sales of alcohol can only be supplied in a sealed container’), this condition will not apply. Off sales can only be sold/supplied until 11pm. This provision will end on 30 September 20232.

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 – licensing@york.gov.uk

e. 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 ~~, so it is~~be easily visible and legible to the public and affixed, on the day ~~they submit~~ the applicationis submitted to the local authority. Applicants are encouraged to keep evidence of this (by taking a picture of the notice ~~for example~~).

The applicanty must ensure that the notice remains in place for ~~the public consultation period, which is the period of~~ 7 days, beginning the day after the application is submitted to the local authority.

~~The local highway authority~~City of York Council will consult with:

· North Yorkshire Police Licensing Section;

· Make it York, York Museum Trust (where relevant); and

· Other ~~such~~ personsor groups it considers appropriate.

The local authority will aim to support an online consultation process by publishing the notice and other information supporting the application on the Council’s website (excluding personal information).

~~As this facility is not currently available, t~~The notice ~~will~~ 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 ~~to them~~ by email (excluding any personal information). Members of the public ~~will be~~are invited to email their comments to the Council within the ~~7 day~~7-day consultation period.

f. 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. 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 14 days (starting on the day after the~~your~~ application has been acknowledged as complete, including 7 days for the consultation period and 7 days for determination after the end of the consultation period).

If the local authority fails to consider the application within this ~~14 day~~14-day period, the pavement café licence applied for will be deemed to have been granted for a year (and will expire no later than the end of 30 September 20232). Please note that the national and local conditions (advertised by the Council on the day prior to the application submission date) set out in ~~section E~~ below will automatically apply to applications which are deemed granted.

If the ~~local authority~~Council determines the application before the end of the determination period, the ~~local authority~~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 Business and Planning Act 2020. A judicial review process is available via the High Court.

g. National and local conditions

National conditions

National ‘no obstruction’ condition referred to in 5(4) 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 in, on, or over the highway.

National condition relating to clear routes of access

The national condition requires clear routes of access to be maintained, taking into account the needs of disabled people and the recommended minimum footway widths and distances required for access by mobility impaired and visually impaired people as set out in ~~Section 3.1 of Inclusive Mobility~~Section 34.2.1 of Inclusive Mobility(available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1044542/inclusive-mobility-a-guide-to-best-practice-on-access-to-pedestrian-and-transport-infrastructure.pdf).

This requires:

· A clear width of 2~~000m~~m allows two wheelchairs to pass one another comfortably. This should be regarded as the minimum under normal circumstances.

· Where this is not possible because of physical constraints, 1.5~~00m~~m could be regarded as the minimum acceptable under most circumstances, giving sufficient space for a wheelchair user and a walker to pass one another.

· The absolute minimum, where there is an obstacle, should be 1~~000m~~m clear space. The maximum length of restricted width should be 6 m~~etres~~ (see also Section 8.3).

o Section 8.3 states: Where an access route is predominantly less than 1.8~~00m~~m wide, passing places should be provided to allow two wheelchair users to pass each other. A passing place should be a minimum of 2~~000m~~m long by a minimum of 1.8~~00m~~m wide and located within direct sight of another, or at a maximum distance of 50 metres from another, whichever is the closer.

· If there are local restrictions or obstacles causing this sort of reduction in width, they should be grouped in a logical and regular pattern to assist visually impaired people.

· It is also recommended that there should be minimum widths of 3~~000m~~m at bus stops and 3.5~~00m~~m to 4.5~~00m~~m by shops, though it is recognized that available space will not always be sufficient to achieve these dimensions.

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; and

· 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.

Emergency access - For ~~fully~~ pedestrianised streets, a minimum width of 3m~~eters~~ must remain free and unobstructed to facilitate emergency vehicle access. This figure may be increased where there is a heavy pedestrian flow.

The 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 for example. ~~State default start / end times for any~~Any applications deemed granted will only be allowed to operate between 10.30am and 5pm.

Access to the premises - A clear pathway,of at least 1.25m~~metres~~ wide[VH1] , shall be maintained at all times 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 under the Equality Act 2010.

Public health and safety – The licence holder will be responsible for ensuring that uses conform to ~~the latest~~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~~and businesses reopening~~ are in place.

Licence holders should aim to support the work of the Council and Police services on security and counter-terrorism by ensuring that staff complete the ACT Awareness E-learning course (https://ct.highfieldelearning.com/) and checking 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 ~~under th~~is~~licence~~ (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 £5,000,000 in respect of any one incident.

Evidence of this insurance policy shall be included in the licence application. 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. A valid ~~third party~~third-party public liability insurance certificate shall be held by the licence holder at all times to the satisfaction of the Council.

Furniture - Only approved ~~tables, chairs, bins, and barriers~~furniture (as detailed in the licence) shall be placed within the designated area. No other furniture (such as advertising boards) shall be placed within this area.

~~Where they are allowed,~~ no ~~canop~~y~~or umbrella shall be lower than 2.1 metres~~ ~~in height~~ ~~and they shall be adequately secure.~~

Barriers must be placed to enclose the pavement café area. These should be stable and sturdy canvas separator on metal uprights with a tapping rail (no protruding parts, no ropes or chains, high colour contrast preferable), to help with accessibility for visually impaired highway users.

What barriers are required?

Barriers are required to comply with 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.

The gap in the barriers which people use to access the refreshment area should be at least 1m wide (CYC note – the gaps should be no wider than 1.5m). Barriers should contrast visually with the background against which they are seen.”

Screens may~~can~~ be considered ~~for some licensed areas and will be considered~~ on a ~~case by case~~case-by-case basis. Where permitted and above 1m high, ~~the~~ screens must be transparent.

All furniture 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.

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.

Parasols – Parasols are permitted within the licensed area, but they must be included in your application. These must not extend beyond the licensed area ~~and should be centrally supported~~. Gazebos or parasols with sides are not permitted. ~~For further information as to what defines an outdoor area see Appendix B.~~Where they are allowed, canopies or parasols shall be no lower than 2.1 metres and they shall be adequately secured.

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, both within the licensed area and across the public highway.

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.

Use of open vessels – Only reusable plastic or cardboard containers (or similar materials, ~~i.e.~~ 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~~your~~ licence being ~~suspended or~~ revoked.

The licence holder is expected to co-operate with the reasonable needs of neighbouring premises. If there are disputes, licences might be ~~suspended while the matter is investigated.~~revoked.

~~No smoking~~ ~~– The licenced area is to be a non-smoking area, including vaping, unless separate smoking and non-smoking~~[VH2] ~~areas meeting the requirements of the national condition (see above) can be met.~~

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 Temporary Traffic Regulation Order (TRO) to restrict vehicular access, the validity of the licence might be conditional on the TRO being in place. If the Temporary TRO expires, the licence will be revoked.

Claims - The Council shall be indemnified against all claims, actions or other costs, howsoever arising.

The licence holder is responsible for the health and safety of their staff working in the licensed area. Measures to mitigate~~your~~ health and safety concerns cannot be transferred to the local authority for action.

h. Licence application fee

Licencses for the January to December 2023~~2021-2022~~ period ~~are free of charge~~cost £100.

i. Receiving your licence

If the decision is taken to grant the licence, two copies of the licence will be forwarded to the applicant. The applicant will be required to sign both copies, saying that they agree to abide by the conditions and terms set out in the licence. The applicant will then return one copy to the Council, keeping the other copy.

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 (14 days), the licence application will be deemed granted and the authority will issue a temporary licence including the relevant conditions (these will include the national conditions and the local conditions publicised by the Council on the day prior to the application form submission date – as listed in this document).

j. Amending an existing licence

~~Current licence holders~~ ~~(with~~ ~~planning permission)~~ ~~might want to request a change of conditions for their existing licence, for example requesting additional pavement space or asking to use umbrellas.~~

~~This can be done by contacting the~~ ~~local highway authority~~ ~~by email, requesting a review of existing~~ ~~conditions. The process (consultation and determination), criteria and conditions described above apply.~~

~~The revised conditions will be valid for up to a year, but not beyond the end of September 202~~2.

~~As applicants will already have paid for their pavement café licence, no additional fee will be charged.~~

If ~~you~~ an applicant wishes to extend or vary the terms of a pavement cafe licence granted under the Business and Planning Act 2020, they~~you~~ will need to submit a new application as set out above,and an additional application fee will be charged.

k. Enforcement, suspension 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).

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:

o There are risks to public health or safety ~~– for example by encouraging users to breach government guidance on social distancing by placing tables and chairs too close together~~;

o The highway is being obstructed (other than by anything permitted by the licence);

o 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;

o The applicant provided false or misleading information in their application – for example they are ~~operating a stall~~ selling hot food and ~~had~~ applied for tables and chairs on which only drinks could be consumed; or

o 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 the premises,~~ outside of the licensed times ~~of use~~ - 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 which are still permitted;

· Area where furniture is set out differs from~~/is larger than~~ 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; and

· 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 guidance requires these barriers to be: stable and sturdy canvas separator on metal uprights with a tapping rail, to help with accessibility for visually impaired users. This is in line with Government guidance (Inclusive Mobility) and has been identified as an important addition to pavement cafes to enable people who live with sight loss to navigate the city centre streets.

The CYC Support Marshalls (available until the end of December 2021) will support the enforcement work by checking that licence holders adhere to the terms of their licence whilst on their rounds and reporting breaches to the Highway team to issue enforcement notices where required

Up to two3 letters (notices) will to be sent to licence holder asking for breaches to be addressed. If two~~three~~ letters have been sent for the same issue(s) and the licence is still not being complied with, the licence will be revoked.~~, the decision to do this would be made by Head of Programmes and Smart Place~~.

The ~~local authority~~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 ~~terminate or suspend~~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.

4. Glossary of terms

Access - approach, entry, internal movement or exit, including in cases of emergency (BS8300 definition)

Accessible - capable of being independently accessed and used (BS8300 definition)

Accessible route - any route that is used to access and use a place or space, including streets, parks and landscaped (BS8300 definition)

areas, to approach a building, or to move between buildings

Adopted highway – a public road (or path), including footways, managed and maintained by the highway authority

Areas where traffic is restricted – streets which are subject to traffic restrictions but not fully pedestrianised. For example, vehicular access is restricted on Fossgate during the day, expect for access.

Carriageway - the part of a road intended for vehicles rather than pedestrians

Clear width - Clear distance measured between walls or other obstructions or across a path

CYC – City of York Council

Disability - physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to do normal daily activities (Equality Act 2010 definition)

Footway – a pavement, the part of a highway which has been set apart for pedestrians

Government guidance – In this document, this refers to “Pavement licences: guidance, Guidance to accompany pavement licensing introduced in the Business and Planning Act 2020”, published by the Government here: https://www.gov.uk/government/publications/pavement-licences-draft-guidance

Licensed area – In this document, this refers to a pavement café area licensed under the Business and Planning Act 2020

Pedestrianised area – footstreet area. In York, this includes most city centre streets as described here: www.york.gov.uk/footstreets

Tapping rail - a rail installed on barriers, at approximately 150mm height, to guide blind or partially sighted pedestrians around the enclosed area

TRO - Traffic Regulation Order

Appendix A – Additional information on the definition of outdoor areas

~~If York is in Tier 2 (high risk) Covid-19 Alert Level, people from different households (or support bubbles) are no longer able to meet inside, but only in outdoor areas.~~

~~The Coronavirus Regulations define indoors as:~~

“A place is indoors if it would be considered to be enclosed, or substantially enclosed, for the purposes of section 2 of the Health Act 2006(b), under the Smoke-free (Premises and Enforcement) Regulations 2006(c), this being in Schedule 1 Part 1 Paragraph 8(4) of the Health Protection (Coronavirus, Local Covid19 – Alert Level) (Medium) (England) Regulations 2020, Schedule 1 Part 1 Paragraph 11(4) of the Health Protection (Coronavirus, Local Covid19 – Alert Level) (High) (England) Regulations 2020 and also in Schedule 1 Part 1 Paragraph 12(4) of the Health Protection (Coronavirus, Local Covid19 – Alert Level) (Very High) (England) Regulations 2020.”

Substantially enclosed is further defined if the premises has a ceiling or roof, but there are permanent openings in the walls which are less than half of the total areas of walls, including other structures which serve the purpose of walls and constitute the perimeter of premises. This is known as the 50 per cent rule.

~~Therefore, if 50 per cent of the walls or more are missing, it would not be classed as an indoor area; but if more than 50 per cent of the walls are present then it would be classed as indoors.~~

~~The LACORS guidance provides more information on this and is available here:~~

~~https://www.cieh.org/media/1258/implementation-of-smokefree-legislation-in-england-guidance-for-council-regulatory-officers-second-edition.pdf~~

Appendix B – Parklet and decked area guidance (November 2020)

This guidance provides additional information for businesses that are considering a platform area to enhance the provision of a pavement café. The aim of the guidance is to enable good quality proposals to be presented which can be approved quickly. It should be read in conjunction with the pavement café licence guidance.

~~Definition~~

A Parklet/Decked Area is an elevated space generally providing a level extension area to the footway for use of the carriageway/footway for activities such as pavement cafes. As a parklet/platform obstructs the highway (carriageway and/or footway) in a (semi) permanent manner applicants should first consider whether there are alternative approaches which have less impact on highway users.

~~Licencing process~~

A pavement café licence will need to be in place for the area proposed to be used for the parklet. The Council will consider licencing parklets on a temporary basis using Highway Authority powers under Section 115B&C of the Highways Act 1980. A standard ‘Structure in Highway’ fee will be chargeable for the consideration of the application – (for 2020-21, the fee is set at £263). Depending on the location, the licence may be conditional on the continuation of Temporary Traffic Orders for the street. To facilitate economic activity during Covid 19 restrictions, licences will initially be granted on a trial basis for up to 6 months, with a possible extension and an end date of September 2022 for pavement cafes, in line with the Business and Planning Act 2020. It is anticipated that planning consent would be needed for parklets to continue beyond that date.

This guidance is designed to support businesses, by helping them to understand the criteria that will be considered, so that the Council can approve as many applications as possible. Each application will need to be considered on its merits and in the context of the location

~~Space/Location~~

The proposed location will initially need to be assessed to check that the platform can be accommodated safely whilst retaining right of access for highway users including for emergency access. Generally at least 2.75m carriageway width will be required. At least 3m width will be required for emergency vehicles to pass the platform (this may include the footway where possible). At least 1.5m is required for pedestrian access (increased to 2m in high footfall areas). Individual locations and proposals may also need to be assessed for vehicle turning movements and will need to be assessed by a Security and Safety review and may need to have a formal Road Safety Review undertaken.

~~Platform design~~

~~If a platform can be accommodated safely the following key elements need to be considered in the detailed application:~~

· ~~It must be possible to take the platform apart and store it away relatively quickly (a few hours) in case access to the road is needed, for example for utility companies.~~

· Carriageway width left available to vehicles once the platform is constructed should be at least 2.75m. The applicant will need to demonstrate (e.g. by tracking vehicle movements) that clearance is available if the location is close to junctions/bends in the highway.

· ~~Platform must be visible and protected as necessary to prevent vehicle strikes. Reflective strips shall be provided.~~

· ~~Where a decked area is above utilities covers/highway drains, specific lift out covers which can be opened quickly to access these need to be included in the plan and provided.~~

· ~~Surface/rain water needs to be able to run freely into street drains.~~

· Side railings must be no higher than 1m to enable visibility between vehicles, pedestrians, and users of the decked area and some natural surveillance of the decked area. Subject to approval, transparent sides higher than 1m may be used, (to maintain visibility), but must be in line with permeability guidance appropriate for Covid 19 restrictions (see Appendix B).

· If the platform includes the footway, pedestrians need to be able to use the footway when the pavement café is not in use. This might mean providing ramps at both ends of the platform (to be preferably flush but no more than a 6mm upstand). The ramps need to be within the licensee’s frontage as they cannot encroach on entrances to neighbouring buildings.

· Businesses have an obligation - both legal and moral - to make their premises as accessible as they can for those with disabilities and for wheelchair access. This applies in the same way to the parklet.

· ~~The parklet structure should have no sharp edges or rough finishes where members of the public might injure themselves.~~

· ~~Public liability insurance (for up to £5 million for each individual event) needs to cover the platform.~~

· ~~Roofs: Umbrellas are permitted in accordance with Café licence guidance. If a more substantial roof is proposed then the following items must be covered in the application:~~

o ~~The roof shall be designed as a structure to withstand wind/snow load – proof that the structure has been designed by a competent designer will be required;~~

o ~~The roof shall be removable with the rest of the parklet to allow access for utilities;~~

o ~~Roof supports shall not hinder pedestrian/vehicle inter-visibility;~~

o ~~The edge of roof shall not overhang the parklet;~~

o The roof should not encourage use of the Parklet as a shelter out of operating hours – either the Parklet needs to be secured to prevent unauthorised access outside of operational hours, or the roof covering needs to be removed at the end of each day;

o ~~The proposed roof needs to be approved by a Security and Safety Review.~~