Report on the Licensing of Pavement Cafés Bill
Date: 12 December 2013
Reference: NIA Bill 24/11-12
Mandate Number: Sixth Report
- The Licensing of Pavement Cafés Bill will introduce a mandatory licensing scheme for the regulation of pavement cafés.
- Evidence from stakeholders indicated there was broad support for such a licensing scheme, although there were concerns raised over a number of provisions.
- Central to the Committee's consideration were concerns raised by disability groups regarding safeguards for disabled pedestrians. However, the Minister has given his assurance to the Committee that DSD guidance will place particular emphasis on putting the needs of pedestrians, including those with disabilities and mobility needs, at the heart of the licensing regime.
- Many concerns related to the granting or revocation of a licence with some believing that the controls were not strong enough to allow councils to take action when licence conditions are breached, and others concerned that they were too strict, i.e. a 'one strike and you're out' policy, for even minor contraventions of the licensing conditions. However, the Committee was reassured by the Minister's actions to amend Clause 19 to ensure there was a more balanced approach to revoking or suspending a licence.
- The Committee welcomed an amendment to Clause 21 to extend the right of appeal to a decision to limit the duration of a licence under Clause 5. The decision by the Minister to allow an appeal to the council in the first instance, and to allow the licence holder to continue to trade with the pavement café while this appeal was considered, also went some way to ameliorate the Committee's concerns about the appeals process.
- Stakeholders expressed concerns that the legislation should be more specific, but the Department emphasised the importance of allowing the councils some discretion to tailor applications appropriately to their local area. It is evident to the Committee, therefore, that the Department's guidance on the implementation of this legislation will be important for councils. With this in mind, it made a number of recommendations regarding issues, brought to its attention during evidence sessions, which it believes should be included in this guidance.
7. Throughout the Committee Stage, following consideration of evidence provided by stakeholders, the Committee raised a number of issues with the Department. In most cases the Department was able to address these by providing clarification on certain clauses. However, on other issues the Minister responded by bringing forward two amendments and providing written assurances to the Committee. In addition to these actions the Committee agreed a number of recommendations for the Minister’s consideration.
8. The Committee proposed that Clause 14 be amended. This clause deals with the revocation of a pavement café licence. The Committee felt that Clause 14(1)(d) which allows a council to revoke a pavement café licence at any time if it is satisfied that ‘any condition of the licence has not been complied with’ was too broad. The Committee was of the opinion that strict interpretation of this clause could allow the revocation of a licence even when there were very minor breaches of conditions.
9. The Department considered the Committee’s view, and agreed to amend the clause to refer to ‘persistent breaches’ of conditions. The amended clause is included in the Committee’s clause-by-clause consideration on page 15 of this report.
10. The Minister agreed to amend the Bill to extend the right of appeal to a decision to limit the duration of a licence under Clause 5. The Committee welcomed this amendment. Furthermore, the Committee had raised concerns about the right of a licence holder to continue trading while an appeal was being heard. However, the Committee acknowledged that the amendment to Clause 19 (allowing initial representation to the council) to some extent addressed these concerns.
11. The Committee had some concerns about the definition of a ‘public area’ as outlined in Clause 1(2) of the Bill. The Department provided clarity on the definition at the Committee meeting on 7 November. The Committee was content with the clarification provided but made the following recommendation:
That the definition of a ‘public area’ is made clear in the guidance and, in particular, the relevance of this to the licensing of pavement cafés on public and private land.
12. The Committee expressed concern that advertising boards (‘A’ boards) associated with pavement cafés were not included in furniture in Clause 1(3) and made the following recommendation:
That the guidance clearly states that menus and advertising (‘A’ boards) associated with the pavement café must be placed within the enclosed pavement café area.
13. In reference to Clause 3(4), and particularly following representation from groups representing disabled people including those with visual impairments, the Committee expressed concern that pavement cafés could potentially hinder the free movement of pedestrians. The Department stated that as part of the application process for a licence, a plan of the proposed pavement café would be required. In addition, a pre-application visit by the relevant council official would be expected to ensure the pavement café did not hinder the movement of pedestrians. Furthermore, the Department advised that the Roads Service would be a statutory consultee as part of the application process and could provide comment on the suitability of the proposed pavement café. The Committee made the following recommendation:
That the guidance provided by the Department states that a pre-application visit to the applicant’s premises by the appropriate council or Roads Service official is a pre-requisite prior to approval of a pavement café licence, and that it is also made clear in the guidance that any plan that does not show the relationship between the pavement café area and the streetscape will be rejected.
14. The Department has acknowledged that defining the duration of a licence is a complex issue and that this will be addressed in the guidance. The Committee made the following recommendation:
That the guidance provided by the Department must provide clarity on the ability of a council to limit the duration of the licence in the context of the requirements under the EU Services Directive.
15. Clause 10 makes it a requirement for premises applying for a pavement café licence to make the application available to be viewed by the public until the end of the period allowed for representations. Some stakeholder groups, particularly those representing the visually impaired, raised questions about how this information would be made accessible and expressed concerns that there was potential for people with visual impairment to be excluded from making representations. The Department noted that it was up to individual councils to dictate how the application would be advertised, but that it anticipated that the applications would be displayed on council websites. The Committee made the following recommendation:
Councils, when advertising pavement café applications, should be proactive in contacting groups which represent people with disabilities to ensure they have an opportunity to comment on the proposed pavement café application and accompanying plan.
16. Clause 11(2) relates to the fixing of notice of application to the premises applying for the pavement café licence and states that the notice should be clearly visible and legible to the public from outside the premises. The Committee expressed concerns similar to those around Clause 10(4) and believed this emphasised the need for councils to proactively seek the opinion of groups representing people with disabilities.
17. In its consultation paper on Business Improvement Districts and Licensing of Pavement Cafés in 2010, the Department of Social Development noted that:
There has been a significant increase in the number of pavement cafés operating in towns and cities across Northern Ireland, particularly since the 2007 introduction of the smoking ban. However, no legislation exists to enable the authorisation and control of such areas.
18. Therefore, in spite of the proliferation of pavement cafés in recent years, there has been no formal regulatory system in place. A ‘toleration’ policy is currently adopted here in respect of pavement cafés, with Roads Service enforcing removal of furniture where it is deemed to be an obstruction. Given the increase in numbers of pavement cafés, this is regarded as an inadequate solution in the long term, and the Department has therefore recognised the need to introduce a suitable licensing scheme.
19. Legislation exists in other jurisdictions and requires café owners to apply for permission from their local council to place tables and chairs on the pavement outside their premises. However, Northern Ireland is the first jurisdiction to introduce a Bill dealing specifically with pavement cafés.
20. The Committee received an initial briefing on the Bill from the Department on 13 June 2013 outlining the policy background and giving a broad overview of the provisions of the Bill. It was subsequently introduced to the Northern Ireland Assembly on 17 June 2013 where the Minister made the following statement under section 9 of the Northern Ireland Act 1998:
“In my view the Licensing of Pavement Cafés Bill would be within the legislative competence of the Northern Ireland Assembly”
21. The Second Stage of the Bill was agreed on the 25 June 2013, after which it was referred to the Committee for Social Development for consideration. The Bill, as introduced by the Minister, contains 32 clauses and 1 schedule.
22. The Committee considered the Bill and related issues at its meetings on 13 June 2013, 3, 10, 17 and 24 October 2013, 7, 14, 21 and 28 November 2013 and 5 December 2013. The relevant extracts from the Minutes of Evidence for these meetings are included at appendix 2.
23. As part of the Committee’s consideration of the Bill a public consultation was initiated in July 2013, with the Committee seeking submissions through advertisements placed in the Belfast Telegraph, Newsletter and Irish News.
24. The Committee received 23 written submissions to the consultation, which are included at appendix 3. The Committee subsequently took oral evidence from 8 of these stakeholders as part of its consideration. Minutes of Evidence for these meetings are included at appendix 2. The Committee also met with the Department on a number of occasions and received written papers from the Department and the Minister, which are included at appendix 4.
25. On 12 September 2013, the Assembly agreed to extend the Committee Stage of the Bill to 13 December 2013. The Committee carried out its clause-by-clause scrutiny of the Bill at its meeting on 21 November. The Bill report was agreed at its meeting on 5 December.
Consideration of the Bill
26. Consideration of a statutory licensing scheme for pavement cafés has its origins in a DSD consultation of October 2010. The responses indicated that there was strong support for a licensing scheme and the development of a ‘café culture’.
27. However, following this consultation it was determined that one of the key assumptions - that Roads Service should undertake the enforcement of the scheme - would no longer be pursued. Instead it was decided that a statutory scheme to be administered by local councils would be preferable.
28. Indeed, during the pre-legislation briefing on 13 June 2012 the Committee heard that, despite the proliferation of pavement cafés here, there was no legislation in place to regulate this activity. Rather, the Roads Service generally ‘tolerates’ pavement cafés provided they do not restrict the free flow of pedestrians or vehicles, or compromise public safety.
29. At this meeting the Committee considered the principles and main provisions of the Bill – See appendix 2.
30. The Committee also commissioned a research paper into pavement cafés for information, prior to consultation with stakeholders. This is included at appendix 5.
31. The Committee agreed that while it welcomed the development of pavement cafés, which could help make city and town centres more welcoming places to live in and visit, it was necessary to establish their regulation on a proper statutory footing.
Call for evidence
32. In response to its call for evidence the Committee received 23 written submissions. All the written submissions received by the Committee are included at appendix 3.
33. The Committee received oral briefings from stakeholders at its meetings of 10, 17 and 24 October 2013. Representatives from the following organisations gave evidence:
- Northern Ireland Independent Retail Trade Association (NIIRTA)
- Pubs of Ulster
- Northern Ireland Local Government Association (NILGA)
- Belfast City Council
- Institute of Licensing
- The Licensing Forum
- The Inclusive Mobility and Transport Advisory Committee (IMTAC)
- Guide Dogs for the Blind Association.
34. The Committee is content that it received oral evidence which adequately reflects the views of the majority of respondents to the written consultation.
35. Following consideration of the evidence given by stakeholders, the Committee received further briefings from Departmental officials on 24 October and 7 November, where it addressed the concerns raised by stakeholders.
36. The key issues in relation to specific clauses raised in both written and oral evidence are outlined below. The Minister also wrote to the Committee on 12 November to advise of amendments to be brought forward at consideration stage and to address concerns of the Committee. These are referred to in the following section as they arise.
Clause 1 Meaning of “pavement café” and other key terms
37. A number of stakeholders, mostly local councils, queried the intention of the Bill in respect of privately owned land. When raised by the Committee, the Department confirmed that the definition of a “public area” does not extend to an area to which the public have access only because the owner has given permission (express or implied). Therefore, while the Bill allows councils to regulate pavement cafés in a public area, it does not apply to pavement cafés situated in areas that the public do not have access as of right.
38. The Department also made it clear that where a pavement café area is owned by licensed premises, that area is not a public area and therefore is not subject to regulation under the Pavement Café Bill. However, the Department also clarified that any consumption of alcohol in that pavement café area will be subject to liquor licensing law.
39. The Minister also indicated his intention to amend Clause 1(2)(b) and associated Clause 30 to exclude from the licensing scheme areas where historic rights to hold a market or fair exist.
Clause 2 Offence of placing furniture on public area without pavement café licence
40. Concern was raised that the cost of administering the scheme will far exceed what councils will be comfortable with charging businesses, particularly in the current trading environment. However, the Department stated that the fee charging regime is similar to those for other statutory licensing schemes and that councils can recover costs at their discretion.
41. Some councils highlighted that the creation of offences under this clause will run parallel to existing offences under legislation enforced by Roads Service. The Department agreed and indicated that it will provide greater clarity in its guidance on this issue and on the impact on other relevant legislation such as street trading law and the operational implications.
Clause 3 Application for licence
42. The requirement for a ‘plan’ of the proposed area on the application for a licence was considered a welcome step by stakeholders.
43. The Committee was supportive of this provision and believe that any plan should show the spatial relationship between the proposed pavement café area and street furniture, crossing points, bus stops, placement of ‘A’ boards etc. to ensure that there is sufficient space to allow unobstructed flow of pedestrians. Of particular concern to the Committee in this regard were the needs of people with disabilities. The Minister has also noted his concerns to the Committee regarding safeguards for disabled pedestrians and has given his assurance that DSD guidance will place particular emphasis on putting the needs of pedestrians including those with disabilities and mobility needs, at the heart of the licensing regime. The Committee welcomed this assurance.
Clause 4 Grant or refusal of licence
44. Stakeholders gave conflicting opinions on this issue with some believing that the grounds for refusing a licence did not cover enough eventualities, therefore weakening the control of councils; while others felt that the council could refuse an application if the applicant had had a previous licence revoked i.e. “one strike and you’re out” policy. However, the Department replied that the clause was sufficiently flexible to allow Councils to impose a wide range of licence conditions.
45. Some members of the Committee also raised concerns about the length of time that councils could take to consult with relevant agencies or organisations on licence applications. However the Minister responded that the Bill was drafted in such a way as to comply with the EU Services Directive. This should be ‘reasonable’, fixed and made public in advance. It was of some reassurance to members that, where a decision has not been made at the end of this period, the licence will be granted.
46. The Minister also highlighted that Clause 10(5) limits the period of representation on licence applications to 28 days and notes that this approach works well in relation to consultation with Roads Service on street trading licences. The Minister has thanked the Committee for bringing this issue to his attention and notes it will be dealt with in the accompanying guidance for councils.
Clause 5 Form, duration etc of a licence
47. Of key concern to stakeholders and committee members was the duration of the licence. There was some confusion as to whether the licence was issued for an indefinite period or subject to a time limit. The Department has stated that it will provide clarity in its accompanying guidance but noted that, if a council believes it can justify reasons for limiting the duration of licence, then it can do so but that this will have to comply with the requirements of the EU Services Directive. The Minister refers to this in his letter to the Committee.
48. Disability groups also raised concerns about Clause 5(3)(b) which refers to provision in the Bill to vary the area covered by the licence. However, the Department made it clear that this was simply to allow the council to make minor changes to the proposal and therefore obviate the need to reject the proposal and require the applicant to resubmit. The Department was clear that this would not facilitate regular changes in the positioning of a pavement café area.
Clause 6 Conditions of licence
49. Some members of the committee raised concerns about the provisions of this clause which might suggest a relaxation of the licensing laws where a pavement café licence is granted. However, the Department explained that the provisions are more nuanced than this.
50. Any pavement café associated with a licensed premises will be subject to licensing law but 6(2)(b) also allows the council to prohibit the consumption of alcohol in the pavement café area as a condition of a licence if it believes that this is likely to result in disorder.
51. Furthermore, councils are free to impose restrictions on the time that consumption of alcohol can take place in a pavement café if there are concerns about noise or nuisance linked to alcohol consumption.
52. Also, should the council believe that alcohol by-laws that prohibit consumption of alcohol in certain areas should not be breached it can establish this as a reason for refusing a licence or, indeed, grant the licence with the proviso that alcohol should not be consumed in the pavement café area.
53. Members also raised the issue of public liability insurance – Clause 6(3)(e) with suggestion that some consideration should be given to making it mandatory for licence holders to take out public liability insurance. However, the Minister notes that this provision was included at the request of councils who wished to have this discretionary power. The Minister also notes that the Department is not aware of any statutory requirement for pub, café or restaurant owners to take out public liability insurance and that requiring this of pavement café owners would therefore be excessive.
Clause 7 Renewal of licence
54. No comments received on this clause.
Clause 8 Variations of section 6(3) conditions of area covered by licence
55. No comments received on this clause.
Clause 9 Variation by removal of alcohol prohibition
56. This clause raised similar issues to Clause 6 although its provisions are quite different. Clause 9 provides that where a pavement café licence contains an alcohol prohibition, the holder of the licence may, in certain circumstances, apply to a council for the licence to be varied by the removal of the alcohol prohibition.
Clause 10 Applications: general provision
57. The Committee heard from disability groups that, depending on the method of publication of an application for a pavement café, people with disabilities, who would likely be most impacted by the placement of such a café, would have no knowledge of the proposal and therefore not be in a position to comment at the application stage.
58.The Committee shared these concerns and made a recommendation that councils should be proactive in seeking out the opinion of these groups when they receive an application for a pavement café.
Clause 11 Notice of application to be displayed
59. Similar comments were made as those in Clause 10. Again the Committee agreed and reiterated its recommendation that councils should be proactive in seeking out the opinion of these groups when they receive an application for a pavement café.
Clause 12 Fees
60. Many of the stakeholders thought there should be a fixed fee to ensure consistency across council areas. However, the Committee accepted the Department’s argument that councils could only collect fees to cover administration costs and that there should be enough flexibility in the Bill to address the potential variation in the cost of recovery across different council areas. The Committee also noted the requirement for councils to publish how fees are collected.
61. While there was support from business organisations for funding to be provided for initial start-up costs, the Department maintained that the decision to establish a pavement café was a commercial one and that it would be difficult to justify providing financial support that would ultimately result in a commercial benefit.
Clause 13 Change in persons carrying on a business
62. One stakeholder believed that there should be provision to transfer the licence where a business changes hands. However, the Department was clear that the conditions imposed on the licence have to be specific not just to the site, but also the person that the licence is granted to.
Clause 14 Revocation of licence
63. The Committee raised concerns about the provisions of 14(1)(d) which suggested that a licence could be revoked if there was a single breach of the licensing conditions. The Minister wrote to the Chair indicating his intention to address this concern by amending the clause to ensure that a licence could only be revoked or suspended for “persistent” breaches of the licence. The Committee welcomed this amendment.
64. The Committee also noted that the Department interpreted “persistent” as a “three strikes and you’re out” approach.
Clause 15 Suspension of licence
65. Disability organisations felt that 15(1)(b), which indicates that a refusal, revocation, suspension or compulsory variation of a licence where the placement of furniture may “result in undue interference or inconvenience to persons or vehicles in the vicinity”, was open to interpretation. However, the Department indicated that it was designed this way in order to give councils the flexibility to cover a wide range of situations that could potentially arise.
Clause 16 Compulsory variation of section 6(3) conditions
66. The ability of councils to vary the conditions of a licence was welcomed by stakeholders.
Clause 17 Compulsory variation: prohibition of alcohol
67. Clause 17 allows a council at any time to vary a pavement café licence which does not have an alcohol prohibition by including such a prohibition in the licence conditions. Stakeholders raised issues which are dealt with under Clause 6.
Clause 18 Compulsory variation of an area covered by licence
68. While one stakeholder felt this clause provided insufficient scope to deal with potential problems, others welcomed the clause, which will allow a council to change the area permitted by the licence where there has been a material change in the street environment.
Clause 19 Notice of revocation, suspension or compulsory variation
69. As noted previously, the Committee had concerns about the wide-ranging powers that the Bill gave to councils to revoke or suspend a licence. The Minister responded to these concerns by indicating his intention to amend the Bill to require councils to give advance notice to the licence holder should the intention be to revoke or suspend a licence and to allow for representation before a final decision is taken. The Committee was content with this response.
Clause 20 Matters to be recorded in register under Licensing Order
70. No comments received on this clause.
Clause 21 Appeals
71. The Minister agreed to amend the Bill to extend the right of appeal to a decision to limit the duration of a licence under Clause 5. The Committee welcomed this amendment. Furthermore, the Committee had raised concerns about the right of a licence holder to continue trading while an appeal was being heard. However, the Committee acknowledged that the amendment to Clause 19 (allowing initial representation to the council) to some extent addressed these concerns.
Clause 22 Powers of entry and inspection
72. One stakeholder welcomed this provision.
Clause 23 Power to remove unlicensed furniture
73. No comments received on this clause.
Clause 24 Offence of obstruction
74. One council believed a level 3 fine was insufficient, but the Department noted that this is the same offence and level of penalty as is used under the Street Trading Act 2001.
Clauses 25 to 28
75. No comment received on these clauses.
Clause 29 Byelaws
76. This was welcomed by one stakeholder.
Clause 30 Definitions
77. Comment on this clause actually refers more specifically to 5(3)(b) – the ‘area covered by a licence’. The Department responded that, once a licence has been granted, the area cannot be routinely changed i.e. on a daily basis.
Clause 31 and 32
78. No comment received on these clauses.
79. Positive comment was made in respect of the licensing laws and the pavement café legislation in that it will facilitate tourists.
80. The Minister also indicated his intention to bring forward an amendment of new article 76 of Licensing Order and amendment of section 2 of the Street Trading Act 2001. Details of the amendment can be found in the Minister’s letter to the Committee. The Committee was content with these amendments.
Summary of oral evidence sessions
81. The following is a summary of the oral evidence heard by the Committee. For the complete written and oral evidence received by the Committee see appendix 3 and 2 respectively.
Evidence session 1: 10 October 2013 - Northern Ireland Local Government Association, Belfast City Council, Institute of Licensing and Licensing Forum
Definition of ‘pavement café’
82. The representatives expressed a concern that the stated definition could allow any premises that sells food or drink to apply for a licence and that the definition should be narrowed and clarified.
Definition of a ‘public area’
83. The representatives highlighted apparent ambiguity in the definition of public vis à vis private area, and noted that this could lead to inconsistency in how different premises are dealt with in the legislation. They also suggested that this presented further potential problems around liquor licensing and that applying the definition of ‘public area’ used in liquor licensing would clarify this.
84. In discussion with the representatives, members of the Committee raised concerns over the fact that patrons would be permitted to drink alcohol at pavement cafés associated with particular premises, without breaking local alcohol by-laws.
85. Disability access was seen as a concern both from the point of view of access to actual premises and to potential obstruction to the footway in the vicinity of pavement cafés. It was suggested that there should be a statutory obligation for applications to be referred to a consultee group such as Disability Action.
86. There was concern that the cost of administering the scheme would lead to councils having to charge application fees that would exceed what they would be comfortable charging or which would be unreasonable for local businesses.
Grounds for Refusal of Licence
87. The representatives expressed concern that the grounds for refusal were limited and should incorporate a wider range of offences.
88. The representatives felt that options for enforcement were limited and that penalties were potentially disproportionate to the offences. They called for additional enforcement sanctions for minor infringements.
89. The representatives noted the commencement date in 2014 and proposed a transitional period for implementation to allow for councils to process a potentially high volume of applications that would take in existing pavement café owners as well as new applicants.
Technical and managerial provisions for pavement cafés
90. The representatives proposed that more detail on the design and management of pavement café be included within the legislation, rather than being dealt with by regulations, and recommended that model terms and conditions could be drawn up by relevant stakeholder groups.
Evidence session 2: 17 October 2013 - Guide Dogs for the Blind Association and Inclusive Mobility and Transport Advisory Committee (IMTAC)
Definition of pavement café
91. Representatives reiterated concerns expressed by local councils that the definition of pavement café was worded too broadly in the legislation and could potentially allow for any business selling food and drink to apply for a licence.
Current issues with movement around pavement cafés
92. The representatives raised issues around the restriction to free movement that could be imposed by obstacles such as street furniture and advertising boards, particularly for pedestrians requiring assistance e.g. the use of a guide dog, long cane or wheelchair. They emphasised that best practice was to allow 2 metres width on the pavement free for unrestricted movement and noted the concept of a quality walking corridor.
93. The representatives emphasised the importance of effective enforcement and of councils being afforded the resources to carry out this enforcement. They noted that in the current situation Roads Service has the power to remove obstructions to the pavement, but that this has not proved effective.
Technical provisions for pavement cafés
94. The representatives regarded it as important that applications for pavement cafés take into consideration how the café will relate to existing street furniture.
Review of licences
95. The representatives felt that pavement café licences should be subject to periodic review and potentially subject to change should the surrounding street environment be altered.
Notification of application
96. The representatives expressed concern that the methods of displaying notification of a licence application may exclude partially sighted people from making representations.
Evidence session 3: 24 October 2013 - Northern Ireland Independent Retail Trade Association (NIIRTA) and Pubs of Ulster
Support for the Bill
97. The representatives broadly welcomed the legislation and welcomed the fact that the Bill places an onus on councils to grant a licence. They indicated the positive contribution that the Bill should make towards generating economic activity and creating vibrant town centres, particularly alongside BIDs legislation. In general, they were welcoming of light-touch legislation, allowing councils flexibility to design applications tailored appropriately for the local area. They also felt that this legislation will bring Northern Ireland in line with other jurisdictions.
98. On the matter of alcohol consumption being permitted at pavement cafés, exempting local by-laws, the representatives noted that the Bill makes it a duty for the council to consult the PSNI where a pub licence is involved and that the council can take the approach not to allow the sale of alcohol in by-law areas, if it feels this to be appropriate.
99. The representatives emphasised the importance of access, both along footways next to pavement cafés and to the premises themselves, noting that premises would lose customers if they were not accessible. They welcomed the discretion given to councils to determine the appropriate amount of space surrounding a pavement café in a specific area.
Technical provisions for pavement cafés
100. The representatives also voiced support for a degree of flexibility around the furniture and enclosures used for pavement cafés, noting that councils would be best placed to advise what furniture would be most appropriate in a specific area, but that a minimum standard ought to be included in the legislation.
101. Contrary to views expressed on 10 October, the representatives felt that the power to remove furniture from pavement cafés was a suitable penalty in relation to offences by pavement café owners and would act as an effective deterrent from breaches of licence conditions.
102. The representatives expressed concerns around the cost of applications and emphasised that the new legislation for pavement cafés needed to be seen as an opportunity for businesses to run pavement cafés and play a role in vibrant town centres, rather than simply as an additional fee they had to incur.
103. Following oral evidence sessions with the stakeholders, the Committee met with Departmental officials to discuss the issues raised during consideration of the Bill on 24 October (appendix 2).
104. The Department subsequently addressed the Committee in more detail at its meeting on 7 November (see appendix 2). These issues are addressed in the clause-by-clause section of the report and the Department’s paper is available at appendix 4. Evidence taken by the Committee at the meeting of 24 October can be summarised as follows:
Definition of pavement café
105. Addressing concerns raised around the potential for businesses deemed inappropriate applying for a licence, the Department provided reassurance that, while the Bill is designed to allow a range of business premises to apply for a licence, councils would be able to decide what premises are appropriate on a case-by-case basis. It also felt that the cost of applying for a licence would discourage applications from premises whose primary purpose is not the sale of food or drink.
Definition of a ‘public area’
106. The Department considered that it would be inappropriate to use the definition of a public area used in the Street Trading Act and stated that the definition in the Bill was intended to exclude land clearly in private ownership.
107. With regard to concerns raised around the consumption of alcohol and exemption of pavement cafés from by-laws, the Department emphasised that this was not intended to encourage drinking in public. It explained that councils would have control over opening times of pavement cafés and could enforce by-laws where it felt this was appropriate.
108. The Department advised strongly against the introduction of fixed penalties within the legislation, as this would involve the creation of criminal offences and would be too heavy-handed an approach. Rather, the Bill provides a robust regulatory framework for pavement cafés.
109. The Department also considered the issue of access to, and around, pavement cafés, particularly for disabled people. It highlighted that statutory consultation with Roads Service would take into account access for pedestrians. Councils will also be able to consult with organisations representing the interests of disabled people, and guidance provided by the Department would highlight that pavement cafés should be enclosed to allow for safe navigation of the surrounding area.
Time for application process
110. The Department also addressed a concern, raised by Committee members, that consultation with some organisations may delay the application process. It noted that the EU Services Directive requires an application to be processed within a reasonable time which is fixed and made public in advance, and that if no response was received from organisations within this time that the licence would be deemed to be granted.
Guidance for councils
111. The Department addressed concerns raised by stakeholders regarding the guidance that would be issued by the Department in respect of pavement cafés. It noted that councils would be able to place reasonable conditions on a licence and that the guidance would emphasise the importance of accommodating the needs of pedestrians. The Departmental officials reassured the Committee that non-compliance with guidance would be challengeable in the courts.
Outcome of consideration
112. The Committee considered evidence given by both stakeholders and the Department and based on this sought an amendment to Clause 14(1)(d) which refers to revocation of a licence. The Committee have also made a number of recommendations which are included on page 2 of this report.
113. The Minister wrote to the Committee in response to its key concerns and this response is included with the Departmental submissions in appendix 4 of this report.
114. The Committee undertook its formal clause-by-clause scrutiny of the Pavement Cafés Bill on 21 November 2013; in addition to this, the Committee undertook an informal clause-by-clause consideration of the Bill on 7 November 2013, which included discussion with Departmental officials.
115. Prior to the Committee’s formal clause-by-clause consideration of the Bill, the Minister for Social Development wrote to the Chair of the Committee, addressing some of the concerns that had been raised by Committee stakeholders, and outlining technical amendments that the Department would be introducing. The letter, dated 12 November 2013, is included in appendix 4.
116. The Committee’s clause-by-clause scrutiny of the Bill proceeded as follows:
Clause 1: Meaning of “pavement café licence” and other key terms
117. The Committee agreed that it was content with Clause 1 as amended by the Department.
Clause 2: Offence of placing furniture on public area without pavement café licence
118. The Committee agreed that it was content with Clause 2 as drafted.
Clause 3: Application for licence
119. The Committee agreed that it was content with Clause 3 as drafted.
Clause 4: Grant or refusal of licence
120. The Committee agreed that it was content with Clause 4 as drafted.
Clause 5: Form, duration etc. of licence
121. The Committee agreed that it was content with Clause 5 as drafted.
Clause 6: Conditions of licence
122. The Committee agreed that it was content with Clause 6 as drafted.
Clause 7: Renewal of licence
123. The Committee agreed that it was content with Clause 7 as drafted.
Clause 8: Variation of section 6(3) conditions or of area covered by licence
124. The Committee agreed that it was content with Clause 8 as drafted.
Clause 9: Variation by removal of alcohol prohibition
125. The Committee agreed that it was content with Clause 9 as drafted.
Clause 10: Applications – general provision
126. The Committee agreed that it was content with Clause 10 as drafted.
Clause 11: Notice of application to be displayed
127. The Committee agreed that it was content with Clause 11 as drafted.
Clause 12: Fees
128. The Committee agreed that it was content with Clause 12 as drafted.
Clause 13: Change in persons carrying on business
129. The Committee agreed that it was content with Clause 13 as drafted.
Clause 14: Revocation of licence
130. The Committee agreed that it was content with Clause 14 as amended by the Department.
Clause 15: Suspension of licence
131. The Committee agreed that it was content with Clause 15 as drafted.
Clause 16: Compulsory variation of section 6(3) conditions
132. The Committee agreed that it was content with Clause 16 as drafted.
Clause 17: Compulsory variation: prohibition of alcohol
133. The Committee agreed that it was content with Clause 17 as drafted.
Clause 18: Compulsory variation of area covered by licence
134. The Committee agreed that it was content with Clause 18 as drafted.
Clause 19: Notice of revocation, suspension or compulsory variation
135. The Committee agreed that it was content with Clause 19 as amended by the Department.
Clause 20: Matters to be recorded in register under Licensing Order
136. The Committee agreed that it was content with Clause 20 as drafted.
Clause 21: Appeals
137. The Committee agreed that it was content with Clause 21 as amended by the Department.
Clause 22: Powers of entry and inspection
138. The Committee agreed that it was content with Clause 22 as drafted.
Clause 23: Power to remove unlicensed furniture
139. The Committee agreed that it was content with Clause 23 as drafted.
Clause 24: Offence of obstruction
140. The Committee agreed that it was content with Clause 24 as drafted.
Clause 25: Service of notices and documents
141. The Committee agreed that it was content with Clause 25 as drafted.
Clause 26: Power to make further provision
142. The Committee agreed that it was content with Clause 26 as drafted.
Clause 27: Regulations
143. The Committee agreed that it was content with Clause 27 as drafted.
Clause 28: Consequential amendments
144. The Committee agreed that it was content with Clause 28 as drafted.
Clause 29: Byelaws
145. The Committee agreed that it was content with Clause 29 as drafted.
Clause 30: Definitions
146. The Committee agreed that it was content with Clause 30 as amended by the Department.
Clause 31: Short title
147. The Committee agreed that it was content with the short title as drafted.
Clause 32: Commencement
148. The Committee agreed that it was content with Clause 32 as drafted.
149. The Committee agreed that it was content with the Schedule as amended by the Department.
Long Title of Bill
150. The Committee agreed with the long title as drafted.
You can download the full report here.