Stephen J McGowan, Partner Head of Licensing (Scotland) at TLT takes a close look at what is possible for the Scottish licensed and hospitality trade when it comes to opening their outdoor areas and what is required by authorities to make it happen.
Even before Nicola Sturgeon announced Scotland’s proposed road map to
navigate out of lockdown, the licensed and hospitality trade was
analysing outdoor solutions. After weeks of no or limited trade, the
industry is keen to have something to grasp onto.
This is an essential sector for Scotland’s economy, culture and
general wellbeing. Entrepreneurs in this sphere have been desperately
looking at how to trade outdoors, especially now that there is some firm
suggestion that outdoor facilities could be used as early as 18 June
We need to start by accepting that there is no magic wand. There will be
winners and losers. Some “solutions” for turning your premises
inside out are impossible for certain operators. Some traders will say
that the playing field is uneven. It is.
But even those who are in the fortunate position to consider outdoor
amenities will need to adopt further creative solutions to comply with
issues like social distancing, one way queueing systems and supervising
the use of sanitary facilities.
Significant logistical issues are being discussed and explored. Ideas
are being shared privately, in the press and on social media. And even
all the innovation in the world might not be enough unless we get a
truly taps aff summer. All these hurdles might seem insurmountable, and
there may be more questions than answers, but we are continuing to work
through them with clients where this is an option.
The viability of any operation is key, as is consumer experience. There
are some key questions operators need to consider. What are the
overheads going to look like – literally, in some cases – as we
ponder what the weather will bring? And even for those where an outdoor
solution might by physically possible, is there a commercially viable
way to operate these types of areas? The cost of regulatory compliance
will be a significant part of the café culture conundrum.
There are perhaps three key regulatory issues: planning consent, roads
consent and licensing consent. The key here is not to throw our hands up
in despair but to navigate this with cool heads. If we start from a
position of what it will all cost, or that regulation is a barrier, then
nothing will happen.
We need instead to work in partnership with the authorities to deliver
something tangible on a case by case basis – whether that be for a
single premises or something much grander – and to encourage pragmatic
solutions. Once we know there is a political will – both at Holyrood
and at local government level – then grander solutions could be agreed
in principle, giving the industry the certainty it needs.
It must be remembered that the ‘Great Scottish Summer of 2020’ is
going to look very different to any other. It has to be viewed as a
one-off period where the normal rules are subject to flexibility. In
fact, the rule book needs to be, to some extent, set aside.
In relation to planning, my suggestion is that the Chief Planner of
Scotland, John McNairney, issue a similar decree to that issued on 18
March 2020 to allow takeaways from bars and restaurants even if they
lack the planning permission to do so. That is a sensible precedent to
In the case of outdoor facilities, we should scrap the usual 28 day rule
– which typically allows a temporary use without any planning
permission so long as it lasts no more than 28 days – and extend it to
say three or four months, thus avoiding the need for a full change of
use application. This normally takes months to process, and with some
The Chief Planner might also relax the need for planning permission to
erect temporary awnings or other coverage solutions; again, purely for
this extraordinary period in time.
In relation to “tables and chairs” permits issued under the Roads
(Scotland) Act 1984, a more relaxed approach – perhaps with the usual
fees waived or reduced – is the sort of financial benefit-in-kind
cash-strapped local councils could offer.
The permits themselves are there for a reason, such as ensuring the use
of the outdoor area is properly insured, and that appropriate space is
given to all kinds of pavement users. We don’t want those issues to be
overlooked, but if operators are creative and front-load any application
for a permit with solutions, then a slightly more pragmatic approach
might be taken.
In relation to alcohol licensing, I think this is the least problematic
regulatory hurdle – as long as licensing boards are willing to
fast-track occasional licence applications at short notice.
Licensing boards have extremely advanced rules and typical conditions
about how occasional licences for outdoor events should work, which
operators are well used to.
I have to say that my experience of the licensing boards during lockdown
has been exceptional. I could name a dozen whose decisions during this
time have saved businesses and livelihoods, even under extreme pressure
and resourcing issues such as experienced licensing staff self-isolating
or being furloughed or moved to other council departments.
I anticipate that many licensing boards will be flexible when dealing
with sensible and well-prepared applications for occasional licences for
outdoor areas, and more willing to allow the facilities to run on
multiple occasional licences.
These three discrete processes will, in some cases, need to be
considered together – especially where a more inventive solution is
being proposed, such as one shared by a number of operators in a
If, as appears to be the case, we are looking at a unique period before
premises can trade normally, then that period deserves the proper
attention of a local authority task force to examine appropriate outdoor
areas in its jurisdiction and allow businesses to generate some much
Local authorities could identify a number of “hubs” were there is
significant leisure provision and take bold steps, such as temporary
road closures and agreeing a special layout of the area with zoned
facilities for local traders and appropriate queuing systems and so on.
These facilities need not simply be continental street dining, but could
also be market-style areas so that there is a retail dimension as well
as a leisure one.
These types of projects are not new. There are some really experienced
event management people working in our councils as well as regulatory
officers. The Scottish Government is, I understand, due to meet on this
issue and will, it is hoped, provide the necessary bespoke advice and
encouragement needed to move forward.
I do believe that local authorities are desperate to see their local
businesses thrive again, and that the combination of positive political
will, institutional knowledge of local officers, industry
entrepreneurship and sector expertise could create the necessary
environment to allow a national festival of safely organised outdoor
events to flourish. What a boost that would be for us all.