Outside seating for hospitality customers – points to consider

The Communities Secretary’s recent announcement that the government is proposing to extend existing measures allowing pubs and restaurants to use pavements as outside seating areas will be warmly received by struggling pubs and restaurants throughout the country. However, some legal issues need to be considered by hospitality businesses before making the application for a pavement permit to the local authority.

1. Check the terms of your lease, particularly the description of the “demised premises”, to identify the extent of the land within the landlord’s control.

It may be necessary to obtain the landlord’s permission to use the area for outside seating, in which case the tenant should seek this in writing to reduce the risk of any issues arising.

In most cases, it would certainly be counterproductive for the landlord to inhibit the tenant’s ability to trade. Still, in the case of a significant breach of the lease, the landlord could seek to restrain the tenant from using the outside eating area altogether and/or they could claim damages for any financial losses that are incurred. 

When giving permission, the landlord may wish to impose conditions, for example, on opening hours, keeping the area litter-free etc. They may also charge a licence fee.

2. The pavement licence will only provide permission for the placing of furniture on the highway, so consideration needs to be given as to whether any other licences are required, for example, an alcohol licence.

3. Check the specific wording of the pavement licence and make sure the arrangements put in place comply with the terms of the licence. For example, the pavement licence will stipulate that any furniture used must be capable of being removed from the pavement at the end of the day, so care will need to be given to the type of seating that is put in place.

4.  Carry out a risk assessment to ensure that the pavement area being used is a safe environment for staff and customers. This should minimise the risk of accidents. It also means that should an accident occur; a business owner will be better able to demonstrate that they have taken all reasonable steps to ensure their staff and customers’ safety.

5. Businesses should also notify their insurers of their intentions to operate an outside eating area and ensure that they have adequate insurance cover in place.

6. Under the Equality Act 2010, it is unlawful for service providers to treat disabled people less favourably because they are disabled. Adequate access arrangements will therefore be required to facilitate the needs of all users, including disabled customers, to avoid facing claims of disability discrimination. 

7. Businesses applying for a licence should consider the potential for disturbing neighbours or causing litter nuisance and take steps to minimise these.

Taking the steps referred to above should go a long way to enabling pubs, restaurants and cafes to begin trading again using outside eating areas. However, this is not an exhaustive list and businesses with concerns or queries regarding how they may put this into practice lawfully and safely are recommended to seek legal advice.

If you would like advice on any of the above, then please call us on 0800 8494101 and speak to a member of our Litigation Team.

Marika Monaghan, Associate Solicitor

Mayo Wynne Baxter