Agenda Item No
The Vale of Glamorgan Council
Cabinet Meeting: 29 July 2013
Report of the Cabinet Member for the Environment and Visible Services
Footway Cafe Licence for the Fig Tree - Penarth
Purpose of the Report
1. For Cabinet to consider an application to place tables and chairs on the Public Highway on the footway opposite The Fig Tree, The Esplanade, Penarth
1. That this application is refused on the grounds detailed within this report.
2. That officers be tasked with developing a policy on footway licences that could feed into the Council's Destination Management Plan and that a further report be presented to Cabinet on the outcome of this process later this year.
Reasons for the Recommendations
1. To determine this application based on the information set out in this report.
2. To establish a set criteria for the issuing of licences on public footways in future, to avoid any ambiguity and to ensure consistency in the consideration of such applications.
2. The Council, as Highway Authority, has the power to grant licences to permit the placing of tables and chairs on the highway pursuant to Section 115 of the Highways Act (1980).
3. In January this year the Director of Visible Services and Housing met the proprietor of the Fig Tree Restaurant in Penarth to discuss his request to place tables and chairs on the footway on the Esplanade in Penarth. The proprietor explained that his business was suffering due to the demolition and construction activity at Beachcliff and in particular the protective hoardings which partially block views of the restaurant when travelling by car along the Esplanade.
4. The Director was concerned with the health and safety implications of the request with regards to passing pedestrians and the fact that the tables could only be serviced by crossing the main road. . Whilst he had every sympathy with the issues in respect to the Fig Tree, he feared that the risks of trips and falls posed by this scenario on a busy pedestrian promenade, coupled with the dangers of outlet staff and customers crossing this busy main road, on balance, supported his view. The proprietor was initially informed that no permission would be granted to place tables and chairs on the footway in this location, however, he was invited to submit a formal application for determination.
5. There is currently no policy on the issuing of footway licences in the Vale, though there is a formal application process.
6. Licences are generally considered based on their risk to highway users, and the process involves giving public notice to permit interested parties to make objections.
Relevant Issues and Options
7. A formal application was subsequently submitted by the proprietor of the Fig Tree Restaurant and this application was received in April 2013. The letter of application and a plan showing the proposed location of the tables and chairs is attached at Appendix A.
8. Notices of the proposal were sent to neighbouring property owners and posted prominently within the vicinity of the application site. The Police, local ward Members and the Town Council were also contacted for their views.
9. The Police and Penarth Town Council have offered no objections in respect to the proposal and their letters of response are attached at Appendices B and C respectively.
10. Two objections were received from residents of Penarth and these are attached at Appendices D and E. The following comments were made:
Objector D States:
(i) The Promenade is for walking along;
(ii) Other shops and restaurants will want to follow suit.
Objector E States:
(i) The obstruction will prevent the free flowing pedestrian movement;
(ii) This will set a precedent with other shops/restaurants along the promenade;
(iii) The visual and aesthetic integrity of the promenade will be lost;
(iv) Food debris and other litter will become a problem attracting sea birds and a general health hazard;
(v) Carrying food and / or drinks across a zebra crossing is hazardous both to the staff, patrons and other pedestrians using the crossing.
11. The Council has also received a letter of support for the proposal and this is attached at Appendix F. The following comments were made:
(i) In order to compete with Cardiff Bay, local businesses need to encourage visitors to the area. Providing an ' al fresco' dining experience will encourage visitors the visit the Esplanade and the newly renovated Pier;
(ii) Recommendations made that the tables and chairs shall be controlled as not to cause an obstruction and not to encroach beyond the existing seating area.
12. In addition to the objections and communication in support of the application, the Director has been contacted by another business based on the Esplanade whose owner has indicated that he would wish to install tables and chairs on the sea side of the Esplanade should the Fig Tree application be successful.
13. Clearly the Fig Tree proprietor and any other potential applicants along the Esplanade would wish to obtain the said licences in order to assist their businesses and whilst the Council should give due regard to this, particularly during these difficult financial times, the main consideration here should be the diligence of the Council in its role as custodian of the public highway.
14. The Esplanade is a main highway route in Penarth and the footway itself is part of the All Wales Coastal Path. The Council's traffic engineers were therefore asked to give an opinion on the application and their report is attached at Appendix G, by way of an internal memorandum.
15. This report highlights the majority of the initial concerns of the Director should the application by the Fig Tree be granted.
16. The report raises concerns about pedestrian safety and also the enforcement implications should a licence be granted. These concerns will only increase if, as is likely, other applications are encouraged as a consequence of a positive decision in this case.
17. The report also makes reference to Bridgend County Borough Council's policy in such matters. A copy of a report to their Cabinet on this subject of 26th May 2009 is attached at Appendix H. Of particular note is Appendix 2 of this report and paragraphs 220.127.116.11 to 18.104.22.168.
18. These sections of the conditions address concerns regarding pedestrians and in particular, take account of the partially sighted, referring to the use of physical barriers to delineate the licensed area with tapping boards to assist the visually impaired. Appendix 3 to this report shows a diagram of this arrangement which features an unobstructed minimum distance of 4m on the footway outside of the pedestrian barriers. This 'free' distance would not be able to be achieved on the Esplanade as the footway is only 4.8m wide at its widest point, narrowing to 3.8m at the pedestrian crossing point and 3.6m where the fixed benches are located.
19. Officers are in the process of drafting a similar policy on footway licences to the one shown and being successfully operated in Bridgend. It is likely that the same dimensions for cafÃ© seating and tables will be proposed.
20. Notwithstanding the comments of the Police and Town Council and the letter of support for the application, it is considered that on balance this application should be refused on health and safety grounds. It is paramount to ensure that no obstruction will be caused that would compromise the safety of road users, or access to apparatus, or the carrying out of highway works. The placement and use of tables and chairs on the opposite side of a public highway would pose a threat to highway safety. This would represent a safety risk as a consequence of either patrons using the facilities or persons delivering food and beverages from the main premised located on the opposite side of the road. The risks of the proposal constitutes an unacceptably high level of risk to highway safety relating to the location of the site and in particular the requirement to cross the highway to and from the premises to either use the facilities or service the pavement cafÃ©. On balance, it is considered that the risks outweigh the potential benefits in this case.
Resource Implications (Financial and Employment)
21. The cost of officer time in consideration of such applications is estimated to be circa £400 per application. A fee of £416.66 is payable by a licensee for a licence for a 3 year period.
Sustainability and Climate Change Implications
22. Economic activity along the Esplanade could increase with the granting of such a licence however it is considered that the risks to pedestrians, both using the Esplanade and crossing the main road as a result of the licence, outweighs this potential benefit.
Legal Implications (to Include Human Rights Implications)
23. The Highways Act 1980 places a duty on the Highway Authority to protect the rights of the public to use the highway.
24. Section 115 of the Highways Act gives discretionary powers to the Council as Highway Authority to authorise and licence pavement cafÃ© facilities, recreation and amenities on the public highway. Such facilities would otherwise constitute an unauthorised obstruction of the highway.
25. All licensees are required to obtain Public Liability Insurance to a minimum value of £5 million.
Crime and Disorder Implications
Equal Opportunities Implications (to include Welsh Language issues)
27. Not applicable.
28. Environment - Outcome: Current and future generations of Vale residents and visitors enjoy the built and natural environments of the Vale of Glamorgan and actively protect and maintain them.
Policy Framework and Budget
29. This is a matter for Executive decision by Cabinet.
Consultation (including Ward Member Consultation)
30. Local Members for the Plymouth ward were consulted as part of the application process. Councillor Clive Williams advised by telephone that he had no objection to the application though an e-mail detailing an objection was received by Councillor Maureen Kelly-Owen (attached at Appendix I).
31. As advised in the body of the report, the matter was subject to public consultation on site, property owners in close proximity, the Police and the Town Council.
Relevant Scrutiny Committee
32. Economy and Environment
Joanne Dovey, Highway Technician - Enforcement
Tel. No: 02920 673 067
Operational Manager - Legal Services
Accountant - Building and Visible Services
Miles Punter, Director of Visible Services and Housing