Many restaurant, bar and pub owners would like outside seating areas, but they must first consider what permissions are necessary to avoid the risk of costly enforcement action.
It may be necessary to obtain planning permission to seat customers outside. This will depend on the nature of the works that are required to create an outside seating area. Planning permission will be needed if the works constitute 'development'; for example, if there are any permanent fixtures to the side of the premises or in the ground or if there is a material change of use.
Even if planning permission is not needed, it is always advisable to check the existing planning consent for the premises to ensure that it does not contain any conditions which restrict outside seating. Similarly if the premises are bound by a section 106 planning agreement, this should also be checked for restrictions. A breach of a condition/restriction can lead to enforcement action.
If the outside seating area crosses a public pavement, for example if a restaurant on the high street places a seating area outside its premises, the restaurant will require a highway licence from the local authority under the Highways Act.
Under highways law a public pavement is classed as a public highway and it is not always clear cut what is, and what is not, public highway. Private land can be deemed highway at common law or under the Highways Act. For example, the pavement in an outside shopping centre, although privately owned, may be deemed highway.
At common law there is a presumption that land is highway if it has been used by the public as of right and without interruption. The land does not have to be used for a defined length of time but long enough to justify an inference that the freehold owner intended to dedicate the way as a highway.
Under the Highways Act a way is presumed to be dedicated as a highway if it has been enjoyed by the public as of right and without interruption for 20 years - and it is of such character that indicates the common law presumption of dedication should apply.
Owners can get an indication of whether an outside seating area is likely to be considered acceptable by the local authority if other premises in the area have outside seating areas.
Before any works are carried out plans should be discussed with the local authority's planning and highway departments, who should be able to advise on whether planning permission or a highways licence is necessary.
As the views of one employee in the planning department are not necessarily representative of the local authority as a whole, owners can achieve certainty by applying for a Certificate of Lawfulness of Proposed Use.
This is a statutory document which confirms that the use, operation or activity named in it is lawful and is therefore considered permissible without the need to make a planning application.
However, this does not absolve the need to obtain a highways licence if the outside seating area crosses a public highway.