Business and Planning Bill — House of Lords, 2020-07-13
Topic: Housing
Sharon Bowles (Liberal Democrats, Centre to centre-left): My Lords, this amendment follows up the point that I raised at Second Reading about the use of outdoor spaces within the curtilage of premises that are not spaces covered by the definition of relevant highways and pavement licences. I did not get a reply, which I am sure is an oversight, as the Minister wrote on another matter. I wrote back on Friday, so at least there has been some advance notice about this somewhat fuzzy issue Newspapers have been proclaiming that this Bill allows pubs to turn their car parks into beer gardens. One such article was in the Sun on 23 June, headlined: "Pubs and hotels allowed to turn car parks and grounds into beer gardens to boost economy as lockdown eases", and the Mirror said: "What pubs will look like with beer gardens in car parks as lockdown is eased." Even the trade magazine Morning Advertiser said: "This means pubs and restaurants will be able to use car parks and terraces as dining and drinking areas using their existing seating licences ... thanks to the Business and Planning Bill" There are other articles—indeed, so many that it looks like there must have been a briefing If that is correct then I am content, but I am confused as to how this is achieved by the Bill if car parks are not part of a relevant highway. So my first question is: are they covered as a "relevant highway" under Part 7A of the Highways Act? I know that they are public places in relation to some driving offences but, as I understand it, they are not highways. A simple look at Part 7A implies that they are not, but who knows what terms one might uncover with more research. In any event, I am also interested in patios, courtyards and other places that might be within the curtilage and not already under the licence. They are clearly not highways. So where is the general new provision? I have proposed one in my amendment just in case it is not there Next is the question of whether a licence is needed anyway. My starting point was an awareness that various pubs have already applied for licence variations for car parks and patios. I have also had some emails sent to me on the subject. Some people have the understanding that off-sales cover car park use—on the basis that it is the sale and not the drinking that is licensed—and that the extended off-sales therefore bring them into play if they were not in play already However the FAQs about off-sales on the Stafford Borough Council website make the situation clear: "Q: Can I provide seating for customers of the business, for the purposes of consumption?" That is for the consumption of off-sales "A: No. Seating cannot be made available (and this can include areas not under the control of the premises) and this is not restricted to seating within the premises such as beer gardens and adjoining smoking areas, but would include areas adjacent to the premises which also might include public benches." It rules that out: no providing of seating for drinking your off-licence purchases, although local authorities can vary significantly in their levels of strictness Then there is the matter of where the sale is made. If there is a bar in the car park, it is clear that the sale is made there. If a table order is taken and paid for in the car park or the beer garden, some people think that is the point of sale, but in the 2002 Valpak packaging case the judge held thatAn article in 2018 about pubs and gardens in the trade magazine Morning Advertiser notes that it is necessary to consider: whether the pub’s outside area is already part of the licence and what rules apply, as restrictions are common, often on time; if it is unlicensed and it is wished to include it then bear in mind there can be objections during the application procedure; that it can be used anyway if it is accompanied by the service of hot food between 5 am and 11 pm as that does not require a licence; and whether it is part of a public highway as then both planning and a pavement licence may be required All that, and indeed a lot more, is the background to my amendment, which in simple terms just says that open-space licences should be available on similar terms to pavement licences to cover cases where such a provision is needed. In most instances, non-pavement outdoor spaces are less likely to cause obstruction, and that is a valuable consideration, although they would still need to be treated sensitively with regard to noise and nuisance, especially in residential areas, and for that purpose I have copied in all the parts of the pavement licences referencing such matters. I beg to move.