Many restaurant and licensed trade operators will be looking at car parks, service yards and other outdoor areas with a view to using these for impromptu outdoor restaurants, cafes or pop up bars as the hospitality industry in Scotland gears up for the provisional re-opening date of 15 July, subject to the country moving into Phase 3 of the lockdown exit plan by that date.
Area previously Temporary Licensed
In some cases, operators may have previously used these areas under occasional licences and it is expected that Councils will more readily and quickly allow these areas to be brought back into the same use. While each Council will adopt their own practices in dealing with applications for renewal of licences, Glasgow City Council has stated that they do not intend to advertise these on the Council's website so that they can turn these around as quickly as possible and they do not propose to charge a fee for the process.
In cases where an area has not previously been used for the sale of alcohol under an occasional licence, there will be a need to submit an application to the relevant licensing board, accompanied by a layout plan showing clearly the proposed location of the area. An occasional licence, in normal circumstances, will be advertised by the licensing board on the local authority website so that neighbouring owners and occupiers may express their views on whether it should be granted.
Much will depend upon the considerations set out in S57 (4) of the Licensing (Scotland) Act 2005:
- the nature of the activities proposed to be carried on in the premises to which the application relates
- the location, character and condition of the premises
- the persons likely to frequent the premises
The applicant will also have to supply evidence that they own, lease or have a right to use the relevant area on a plan.
Operators should also bear in mind that if they are using an area that they lease, any alterations or additions may require the prior written consent of their landlord and they should check the terms of their lease.
Pavements or other public/shared areas
If an operator identifies the likes of a pavement or other concourse that is part of the public realm, there is a need to secure a permit from the roads department of the Council as well as an occasional premises licence from the licensing department of the Council. A number of Councils are striving to streamline the process so that a roads permit and an occasional licence can be sought as part of a single application.
It is expected that where the area has a use "in common", such as shared backyard of a tenement property, it is likely that an operator would not be granted an occasional licence for use of the area, unless they can demonstrate exclusivity of use by consent of the other occupiers.
Operators still need to consider whether an area is or remains suitable for use, taking into account the proposed activities, neighbourhood and clientele and, above all else, carry out a fresh risk assessment of the area in question.
A risk assessment may require to be approved by the relevant Council before any trading operations commence. Scottish Government guidance in the coming weeks should shed light on this but, even if there is no requirement for Councils to approve these, operators should bear in mind that there is the risk of criminal liability under section 3(1) of the Health and Safety at Work etc. Act 1974 and civil liability under section 2 of the Occupiers' Liability (Scotland) Act 1957 if there were to be an injury to a customer where due care and attention has not been taken by the operator prior to and during trading operations.
Lease or Licence of an area
With a temporary venue which is subject to the mercy of the Scottish weather, operators will be wary of signing up to a short term lease of an area owned by another person or company for temporary trading, paying a fixed rent for a fixed period.
We have flexible lease and licence to occupy agreements that allow parties to call on or call off the days and times during which they operate and pay rent or licence fees. Often, it suits both parties for the rent to be based on a percentage of turnover.
Other aspects to be considered as part of any short term lease are:
- photographing the condition of the area at the outset, including fences and other enclosures
- the requirement to keep the area in clean & tidy condition
- appropriate waste/by product disposal and that storm/surface water drains are not used
- insurance for public liability and property owners liability
- obligations to ensure that physical/social distancing measures comply with legal requirements, that observance is monitored and that breaches are identified, notified and remedied
- ensuring that operators are obliged in a manner that ensures they don't cause disturbance to others
Get in touch
While there will be an understandable rush to get venues ready for any change in the lockdown, and the authorities are showing a willingness to be flexible, there are still potential pitfalls with serious repercussions for operators.
We have extensive experience in the property and licensing aspects of such temporary developments and our Partners John Meehan and Andrew Hunter would be pleased to assist and guide you, either as operator or owner, to operate within the law.