Legal: Don’t get burnt if you go al fresco

Tom Walker, senior associate barrister at law firm Blake Morgan, explores what you need to know about creating an ‘al fresco’ drinking and dining space to boost summertime trade.

With an unusually mild winter behind us and the early signs of a warm spring and summer ahead, what better way to boost your business than by extending your footprint outside and allowing your customers to enjoy your fare al fresco?

The continuing march of café culture coupled with the smoke-free legislation and rising temperatures in the UK have seen a marked rise in the use of outside space in the past decade.

Tables and chairs outside your premises will increase occupancy and can be an excellent way to market your business by saying ‘we are open’ and offering a warm welcome to passers-by. 

You would be forgiven for thinking putting a few tables and chairs out on a sunny day would be simple, but you need to be sure you can do so legally and safely. Here are some of the things you should think about:

Firstly, establish who owns the land. If it is within the demise of the property and you do not own the freehold, you may need to get permission from your landlord, so check your lease. If the public has an unfettered right to walk over that part of the land, it may still be deemed public highway (see below).

Secondly, check the planning permission granted for the premises and whether the outside area is included; if not, contact the planning officer and ascertain whether it is necessary to submit a planning application to add it. Be aware that a planning application will take at least two months, but potentially longer. If you have used the outside area for 10 years or more, you may be entitled to a certificate of lawfulness of existing use and not have to apply.

If you have a premises licence, check for any conditions on it that may need to be varied. You may be able to do so by a minor variation (up to three weeks) but it might require a major variation (up to eight weeks). 

If the area is a public highway, you will need permission from the local authority to use it, sometimes referred to as a tables and chairs licence or street trading licence. If you put out tables and chairs without permission, you will be obstructing the public highway, which is an offence. If your local authority also requires planning permission, they may not accept the licence application until planning has been granted.

The local authority will almost certainly have a policy regarding tables and chairs, which will probably include any other ‘furniture’ such as A-boards, space heaters, planters and barriers. Most are available to view online. It will set out details such as: the minimum distance between the kerbside and the furniture to allow pedestrians to walk past safely (commonly 1.8m); the time furniture may be placed on the street; what other information you may need to provide (for example, a plan or photographs of the area). 

Most importantly, it will tell you the cost, and this varies considerably between local authorities. Some are great value, while some can be prohibitively expensive. The licence will be for a limited period and will need to be renewed. This is usually 12 months, but some only grant six months. It is essential to do the maths and think about the timing of submitting an application.

The front of the premises is an advert for your business, so ensure it is kept clean and the furniture is in good condition. You are as responsible for ‘slips and trips’ in any outside area as you are inside, so make sure staff check and clean the area. 

Think about smokers and non-smokers. A cloud of smoke is hardly welcoming. Perhaps have a designated smoking area away from the doors, allowing non-smokers to sit outside in a smoke-free environment. Do you have residential properties above or next door that might be affected by smokers? Think about where to put your seats – perhaps a canopy might deflect the smoke. You do not want to be discussing potential nuisance from smokers with Environmental Health officers.

Customers who are noisy or disruptive outside are also going to put people off coming in, and your neighbours may seek the assistance of Environmental Health to address the noise nuisance. Think about when to bring your tables and chairs in, to avoid annoyance in the evening. Regular appearances by your staff should keep noise down.

Above all, enjoy the sun and additional trade your carefully planned outdoor space will bring.

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