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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment Overview and Scrutiny Committee held on 24/04/2002
Street cafes and placing of tables and chairs on the highway



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DRAFT SUPPLEMENTARY PLANNING GUIDANCE










ADVICE NOTE




Street cafes and placing of
tables and chairs on the highway
























August 2000

CONTENTS


Page


1.0 Introduction 3


2.0 Legislation 3

Highway Licence
Planning Permission
Liquor Licence
Noise
Environmental Health


3.0 General Guidelines for the Assessment of Applications 5
for Planning Permission and Highway Licence


4.0 Guidelines Applying to Specific Locations 5

Fully Pedestrianised Streets
Partially Pedestrianised Streets
Unpedestrianised Streets with Footway and Carriageway
Special Areas
Other Considerations


5.0 Application Procedure 7

Determination of a Planning Application
Cost of Planning Application
Determination of a Highway Licence
Cost of Highway Licence Application


6.0 If Permission is Granted 10


7.0 General Information 11


1.0 Introduction

1.1 Outdoor seating and tables add important vitality to our environment. In the Borough there are a number of different pubs, restaurants, wine bars and cafes that may wish to have seating and tables, for the use of their customers, on pavements outside their premises. Where the pavement concerned is a public highway, both a highway licence and planning permission will need to be obtained. To ensure that:-

(i) adequate space is left for the safe and free movement of pedestrians;

(ii) consideration is given to the safe movement of people with impaired vision, wheelchair users and parents with pushchairs;

(iii) consideration is given to the location of the amenity, in terms of possible noise disturbance for local residents, and nearby shops and offices.

1.2 This Guidance Document gives general guidelines on the criteria that need to be met if consent to place tables and chairs on the highway is to be granted. The procedure for obtaining permission to place tables and chairs on the highway is complex and therefore often slow. This is due to the fact that two types of permission are required, which are dealt with by two different authorities, as follows:-

(i) Highway Licence - Surrey County Council;

(ii) Planning Permission - Waverley Borough Council.

1.3 In order to overcome the difficulties associated with dealing with two local authorities, Waverley Borough Council and Surrey County Council have agreed a partnership approach with regard to determining permission to use the public highway for tables and seating. Anyone wishing to make such an application need now make only an application to Waverley Borough Council, on the relevant application forms, which are available at the Planning Reception, Waverley Borough Council.

1.4 Applicants should ensure that they comply with other legislation for which the Council is not the administering authority.

2.0 Legislation

Highway Licence

2.1 Under the Highways Act 1980, Surrey County Council, as highway authority, can license the use of an area of the public highway for the positioning of tables and chairs. The granting of licences is subject to sufficient footway width being retained for the safe movement of pedestrians.

2.2 In most cases, the County Council does not own the land which makes up the public highway. Such land is usually owned by the owners of the property fronting the highway, but is maintained for the use of the public by the Highway Authority.


2.3 Under the provisions of the Highways Act, the County Council cannot grant a licence unless it obtains the consent of all interested frontagers who would be materially affected by the proposal. Applicants for licences do not have a right to appeal if their application is refused.

Planning Permission

2.4 Under the Town and Country Planning Act 1990, the placing of tables and chairs on the highway involves a material change of use of the land concerned and therefore requires planning permission.

2.5 Applications will be considered against relevant Borough Council planning policies. In addition, the Council will take into account:-

(i) the individual merits of the application; and

(ii) relevant Central Government policy.

2.6 If an application for planning permission is refused, the applicant may appeal to the Secretary of State for the Environment. However, if a licence has been refused under the Highways Act the applicant will not be able to proceed to install the street cafe even if planning permission is granted, whether by the Council or on appeal.

2.7 Planning permission is not normally required for the placing of tables and chairs on a private forecourt. However, if the public has had access to the forecourt for a number of years the area may have become "deemed highway". This is particularly likely where the public highway is too narrow to accommodate pedestrian activity. In such cases planning permission will be required. If the public has free access to the forecourt a street trading consent (under the 1982 Act - see section 5 below) may be required, depending upon the location.

Liquor Licence

2.8 The consumption of alcohol in an outdoor seating area will, in all cases, require a special licence from the Licensing Justices. Any applicant wishing to sell alcohol for consumption in an outdoor seating area should seek legal advice.

Noise

2.9 Under the Environmental Protection Act 1990 it is an offence to cause a statutory Noise Nuisance. There is also a separate restriction under the Noise and Statutory Nuisance Act 1993, on the playing of loudspeakers in a street.

Environmental Health

2.10 Any permission granted under the Highways Act or Planning Act has no implication for Environmental Health legislation which is separately administered.


3.0 General Guidelines for the Assessment of Applications for Planning Permission and Highway Licence

3.1 Applications for planning permission will be assessed against the relevant planning policies. The relevant policies are set out in Section 5.

3.2 In order to allow safe and unrestricted pedestrian movement the following criteria must normally be complied with:-

(i) A minimum of 1.8 metres width of unobstructed pedestrian footway, or one third of the width of the footway - whichever is the greater - must be provided. A width in excess of 1.8 metres may be required in those areas where there are high pedestrian flows and permanent obstructions, such as street furniture. In the case of the latter, a minimum width of 1.8 metres will be required from the line of the street furniture, rather than from the kerb. Each case will be considered on its individual merits.

(ii) It is essential that the route available to pedestrians is straight and unobstructed.

3.3 The Council will seek to ensure that available space for tables and chairs is shared equally between premises. There may, however, be instances where this is not possible and designated areas may vary in size in the same street. The Council's decision on any such matter is final.

4.0 Guidelines Applying to Specific Locations

4.1 The Local Government (Miscellaneous Provisions) Act 1982 enables a local authority to control street trading by designating a street as either a "prohibited" street, a "consent" street or a "licensed" street. Only those streets designated by Council resolution can be enforced. A "prohibited" street is a street where no street trading is permitted A "consent" or "licensed" street is a street where the prior consent of the Council is required. Applications for tables and chairs will not normally be granted in streets which are "prohibited" streets.

4.2 There are four categories of location where applications for tables and chairs on the highway will be considered, as follows:-

(i) fully pedestrianised streets where there is no vehicular access at any time;

(ii) partially pedestrianised streets with vehicular access at specific times;

(iii) streets with footway and carriageway;

(iv) special areas.

4.3 Guidelines for each category are set out below:-

Fully Pedestrianised Streets
(streets permanently closed to traffic)


4.4 The criteria set out in Section 3.0 will apply. The unobstructed pedestrian route should fall equally either side of the centre line of the highway. This ensures that the space available for tables and chairs is shared equally between premises on each side of the street.

Partially Pedestrianised Streets
(streets closed to vehicle traffic during certain hours of the day)

4.5 In all cases, tables and chairs will be restricted to the pedestrian footway - both inside and outside the hours of vehicular access. This is to ensure the defined area of highway licensed for the purpose is maintained and guarantee an unobstructed route for emergency vehicles. The criteria set out in Section 4.0 will apply.

4.6 Outside the hours of vehicular access there may, in some circumstances, be scope for placing tables and chairs outside the boundary of the pedestrian footway. However, a 3 metre lane would be required to be kept free at all times for the entire length of the street, in order to allow a clear route for emergency vehicles. Each case will be considered on its individual merits.

4.7 If permission is granted for the placing of tables and chairs outside the boundary of the pedestrian footway, it will usually commence 30 minutes after the road has been closed to traffic and will cease 30 minutes before re-opening of the road. This should allow adequate time for any cleaning up that is required.

Unpedestrianised Streets with Footway and Carriageway
(streets open to vehicle traffic at all times)

4.8 Tables and chairs will be restricted to the pedestrian footway at all times. The criteria set out in Section 3.0 will apply.

Special Areas

4.9 Some areas may exist in the Borough where "special" arrangements for tables and chairs on the highway will be considered, as part of an environmental improvement scheme.

Other Considerations

4.10 In circumstances where the Police consider that public order and public safety will be adversely affected by the placing of tables and chairs on the highway, either Authority may be requested to refuse an application for the positioning of tables and chairs on the highway, on security grounds.

4.11 The Police, and other appropriate organisations will be informed, by Waverley Borough Council , of all applications for the placing of tables and chairs on the highway.

4.12 Free access for disabled groups must be maintained at all times. Care will be taken to ensure that seating, tables and planters are arranged in such a way so as to create no additional hazard for disabled, blind and partially sighted persons. Full consideration will be given to this when determining applications.


4.13 In certain circumstances consent may be required from Waverley Borough Council under the Provisions of Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982. For the most part this will involve non-highway forecourts, as the grant of a Highway Licence under the Highways Act 1980 removes the requirement for a Street Trading Consent.

5.0 Application Procedure

5.1 An application for planning permission and a highway licence must be made on the appropriate forms, which are available from the Planning and Development Department, Waverley Borough Council. The procedure followed in determining such applications is set out below:-

5.2 In considering applications for planning permission Waverley Borough Council will take account of the policies from the Surrey Structure Plan 1994 and the Waverley Borough Replacement Local Plan 1999. The following policies (set out in full in Appendix 1) are especially relevant:-

Surrey Structure Plan 1994

Policy EN1 (sustaining Surrey's environment)

Policy PE10 (the protection of urban character)

Policy MT2 (Movement and development)

Policy DP18 (The character of town centres)

Waverley Borough Replacement Local Plan

Policy D1 – Environmental Implications of Development

Policy D2 – Compatibility of Uses

Policy HE8 – Conservation Areas

Policy TC1 – Town Centre Uses

Policy TC3 – Development within Town Centres

Policy M2 – The Movement Implications of Development

5.3 Applications must include a location plan and site plan.

5.4 The site plan must provide the following information:-

area (including dimensions) where proposed tables and chairs are to be placed;

position of building line;

position of kerb-line adjacent to the proposal, or the opposite building line in a pedestrianised street;

entrances to premises within or adjacent to the area proposed for tables and chairs;

area considered to be a private forecourt;

location of trees, lamp posts and any other street furniture.

5.5 In addition, the following information must be provided on the application form:-

Details of number of tables, chairs and heaters proposed;

Details of any umbrellas proposed;

Specification of hours during which it is proposed that tables and chairs be placed on the highway;

Specification of hours during which it is proposed to permit clients to consume alcohol on the public highway (if different to the above). Arrangements for ensuring that the area is kept free of any refuse or litter generated by this activity; Details of any loudspeakers or other sound amplification equipment proposed.

5.6 Any application that does not include the above information will be treated as invalid and will not be considered until all information required is provided.

5.7 Waverley Borough Council will require that a site notice is displayed, at or near the site, giving details of the application for planning permission and Highway Licence. This notice must be regularly maintained for a period of 28 days during which time representations can be made from interested parties. If the proposal is in a conservation area or affects the setting of a listed building, the application for planning permission will be advertised in a local newspaper for the same period as the displayed notice.

5.8 Applicants will be recharged the full cost of all advertising for the Highway licence, either on site or in appropriate newspapers, whether the application for planning permission or Highway Licence is successful or not.

5.9 Waverley Borough Council will notify all neighbours who are considered likely to be materially affected by the proposal. The consent of frontagers will be requested, with or without conditions. They will be advised that if they intend to object to the application concerned, they must do so, normally within the 28 day period of the advertisement, specifying their reasons.

5.10 Only objections which raise valid planning matters, such as loss of amenity, obstruction of the highway, etc., can be taken into account. Objections relating to increased commercial competition cannot be considered.

5.11 Refusal of a highway licence may proceed irrespective of whether or not the consent of the frontagers has been obtained. Planning permission may only be refused if there are valid planning grounds for doing so.

5.12 The decision to grant or refuse an application for planning permission is normally taken by members of the Planning Sub-Committees at Waverley Borough Council, or under delegated power. The highway licence will not be issued until the planning permission is granted.

5.13 The applicant has the right to appeal to the Secretary of State for the Environment if planning permission is refused. If the highway licence is refused there is no right of appeal.

5.14 Cost of Planning Application

The cost of the planning application will be in accordance with fees stated in the Town and County Planning (Fees) Regulations 1989. Details of current fees are available at the Planning and Development reception, Waverley Borough Council or by telephoning 01483 869283.
Determination of a Highway Licence

5.15 Power relating to the licensing of street cafes are contained in the Highways Act 1980, Section 115 a-k. In particular, Section 115c allows the Councils to provide recreation and refreshment facilities and this is extended to persons other than Councils by Section 115e.

5.16 Initially, a notice would be placed on site advertising the intended use of part of the footway as a street cafe. This will be a joint notice as indicated in paragraph 6.6.

5.17 If the applicant wishes to use the frontage outside other premises, the Highway Authority would have to consider any objections and resolve them before proceeding with the issuing of a licence.

5.18 Following the display of a site notice, normally a period of 28 days, would be available for any person to make representations about the proposal. The Highway Authority would have to consider any valid objections before proceeding with the issuing of a licence.

5.19 If consent is unreasonably withheld or if a frontager who has been notified requests conditions and it proves impossible to agree on these, the applicant will be informed before the matter goes to arbitration. In circumstances such as this an independent arbitrator will be appointed and will be asked to make a judgement of this matter. This decision will be final and binding. If no response is received from a frontager who has been notified, this will be deemed as an objection and therefore subject to arbitration. The independent arbitrator's costs will be paid by the applicant.


5.20 If Waverley Borough Council is minded to grant planning permission and Surrey County Council has agreed to grant a highway licence, even though a frontage refuses consent, a highways licence cannot be issued until it has been determined at arbitration that the consent of the frontager has been unreasonably withheld. If a decision cannot be made on the appointment of an arbitrator, an appointment will be made by the President of the Chartered Institute of Arbitrators. If a frontager gives consent subject to conditions which Waverley Borough Council considers to be unreasonable, the matter will again be determined at arbitration.

5.21 If a licence were to be granted it would include any conditions that the Highway Authority saw fit to impose, including the duration and extent of the permission. Any such conditions would be legally enforceable.

5.22 The applicant must also be able to demonstrate to Surrey County Council that a 5 million public liability insurance cover has been arranged, prior to the granting of the highway licence.

Cost of Highway Licence Application

5.23 The cost of investigating the application/drawing up a licence and advertising the proposal, both on site and in appropriate newspapers, is recoverable under Section 115F Highways Act 1980 and will be recharged in full to the applicant. VAT is not applicable.

5.24 The cost of the licence will include administration and site inspections for licence validity.

6.0 If Permission is Granted

6.1 The highway licence will run for a period of one year. The planning permission will be granted for an appropriate period of at least one year. The licence and permission will refer to a specific area of the highway and will stipulate the number of tables and chairs.

6.2 The seating area will be delineated physically on site to indicate where all furniture and associated activity must be contained. Umbrellas must be secured in such a way that they do not project beyond the designated area.

6.3 Waverley Borough Council will specify the type of delineation required at the time of issuing the highway licence and granting planning permission. The type of delineation required, i.e. whether permanent or temporary and style, will be considered for each application on an individual basis.

6.4 The licence will normally define the hours during which tables and chairs can be placed on the highway. Outside these hours all furniture must be removed by the owner/operator and the highway cleaned of any debris.

6.5 Waverley Borough Council may impose special additional conditions where necessary.

6.6 The licensee is responsible for ensuring that the conditions of the highway licence and planning permission are adhered to.

6.7 Surrey County Council, under the Highways Act (Section 115k), has the powers to ensure compliance with the terms and conditions of the highway licence. It is likely that two to three random inspections would be made each year. Any conditions imposed on the planning permission will be enforced after consultation with the Highway Authority.

6.8 Any costs incurred as a result of damage to the highway, due to the positioning of tables and chairs, will be recovered from the licensee by the highway authority.

7.0 General Information

7.1 For further information or if you would like to discuss a particular proposal, please contact the Planning and Development Department, Waverley Borough Council.

7.2 If you would like to make an application for placing tables and chairs outside your business, please fill in the appropriate application forms, which are available from the Planning Reception of Waverley Borough Council.





























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