Agenda item - Improvements to Access on Public Highways Pavements

Report of the Director of Environment (copy attached).

RESOLVED – That the Committee agrees the following policy in relation to traders’ items placed upon the public highway:

 

1.         That no licensed traders’ items should be permitted to reduce the width of a footway to less than 1.3 meters except where:

           

a)         A formal pedestrian zone has been established in a road by Traffic Order and the whole of the carriageway is kept clear for pedestrian use;

 

b)         A road is closed to vehicular traffic by virtue of a temporary Traffic Order and the whole of the carriageway is kept clear for pedestrian use;

 

c)         A road is considered to be shared space and the whole carriageway is generally available for pedestrian use.

 

2.         That where a footway is reduced to a width of 1.3 meters (or less) by objects (whether these objects be traders’ items of fixed street furniture such as lamp posts, bins etc.) ‘turning areas’ for manual wheelchair users and guide dogs must be established at regular intervals. These turning areas shall not be less than two meters in length and shall be the full width of the footway. Such areas must be maintained at intervals of no more than six meters along the length of any restricted footway.

 

3.         That, except in the case of items within large, waiter-serviced sitting-out areas, no traders’ item shall be permitted to be placed more than 5 meters from the licensed premises. All objects must be within sight from a window or door of said premises or in clear visual range of CCTV camera(s) monitored from within the licensed premises. This provision will mainly affect advertising boards.

 

4.         That where an application is refused by Officers, an applicant may appeal to the Licensing Sub-Committee (the Licensing Panel).

 

5.         That applications for A-Boards shall be restricted to 1 per premises (excluding those situated on private land), but that:

 

a)         Special consideration will be given to those premises situated in twittens and alleyways regarding this policy.

33.1    The Committee received a report from the Director of Environment regarding Improvements to Access on Public Highway Pavements (Highway Licensing) (for a copy see minute book).

 

33.2    The Senior Highways Enforcement Officer, Mr Denyer, addressed the Committee and stated that the report set out certain measures to improve access to highways in the city. There were already regulations in place on this matter, and the report hoped to standardise the issue. He noted that applicants for A-Boards in the city would still have the right to appeal decisions made by Officers, but a greater clarity of regulation would help to streamline this process.

 

            The Senior Highways Enforcement Officer noted that a number of representations had been received regarding the report, with many of direct relevance. A minimum two metre turning area had been suggested, and this was incorporated into the recommendations to Committee. Other suggestions included a limit to the number of boards placed outside each premises, and exceptions for conservation areas.

 

            Many representations had asked for a minimum width of two meters for all highways in Brighton & Hove, but the Senior Highways Enforcement Officer stated that some of these propositions would have significant economic implications for traders, particularly in the present economic climate, which might be deemed to conflict with the council’s policy to support local businesses. Other concerns in the representations related to, or would have an impact on, issues which fell outside the direct remit of the Licensing Committee. The Senior Highways Enforcement Officer added that Officers believed that these other propositions deserved to be fully examined in another more suitable forum, as part of a full and holistic strategic review of all highway placements, and not simply applied to those traders’ items licensed under the Highways Act. He stated that the Committee might wish to recommend that this takes place.

 

33.3    Councillor Lepper asked how many traders had been subject to enforcement and the removal of their A-Boards, what the enforcement procedure and penalties were and whether traders in the city were aware of the need for a licence to display A-Boards. The Senior Highways Enforcement Officer stated that between 7 and 10 boards were currently in custody and enforcement was taken where possible. He stated that there was a need to be sure that the boards were causing an obstruction before action could be taken.

 

The process for enforcement was in three stages: advice to the traders regarding the obstruction; a warning; and finally action, which could result in prosecution if necessary. The Senior Highways Enforcement Officer also stated that a letter would be sent out over the next few weeks to traders in the primary licensing zone, to remind them of their obligations regarding A-boards. He stated that the department was changing they way they worked, and he hoped this would result in a more focussed approach from now on.

 

33.4    Councillor Simson asked what was included in the primary licensing zone and the Senior Highways Enforcement Officer stated that the area was encompassed by George Street, Hove, Brunswick and Adelaide to St James Street, West Street to Trafalgar Street and Rottingdean.

 

33.5    Councillor Simson asked why a city wide policy was not being suggested, and how many sites would not meet the 1.5 meter minimum standard suggested in the report. The Senior Highways Enforcement Officer stated that the original intent was to have a city-wide scheme but due to a lack of resources for policing and enforcing this issue, it was decided to focus the policy on those areas where the most complaints were received. The Senior Highways Enforcement Officer did not have exact figures regarding those roads that would be eliminated by a policy with 1.5 meters minimum standard, but noted that the main effects would be seen in the North Laine area. He stated that he could supply this information to the Committee at a later date.

 

33.6    Councillor Mrs Theobald asked what the effect of a 2 meter minimum width would be. The Senior Highways Enforcement Officer stated that this would effectively eliminate all traders’ placements in the North Laine and Lanes area and including other areas as well.

 

33.7    Councillor Kitcat asked what minimum standard was recommended in the report, whether the idea of having different widths for different areas had been looked into and why the full range of minimums from the DfT report had not been incorporated into the Officer’s report.

 

The Senior Highways Enforcement Officer stated that a minimum turning width of 1.6 meters had been originally recommended, but the Federation of Disabled People had suggested a minimum of 2 meters in their representation, and this had been agreed to. He confirmed that different widths for different areas had been considered as an option, but felt this policy would be difficult to justify to traders on the most heavily restricted streets and would make it very difficult for the Council and other agencies to enforce effectively. He added that a range of DfT minimums had been taken from a different report to the one Councillor Kitcat referred to, which was why some were not included, but noted that the highest recommendations of 3.5 – 4.5 meters as a standard minimum width would in fact be wider then many highway footways in the city.

 

33.8    Councillor Fryer asked for an explanation of the option to restrict the number of A-boards per premises, and asked where the western boundary of the policy lay. The Senior Highways Enforcement Officer stated that Officers had looked at the planning limits on private land, which allowed a certain amount advertising space per premises (4.6 sq. metres). From this Officers had concluded that for the public highway, two boards would be an appropriate match for what was allowed on private land. If a limit of one licensed board per premises policy were applied, then this would only affect boards on the highway. A shop could therefore lawfully have one board on their own land and one on the highway. He added that the zone extended west to Brunswick and Adelaide, and the Committee could be provided with a map of the area if they wished.

 

33.9    Councillor Cobb asked whether a minimum width would apply to tables and chairs on the highway or just A-boards, and asked what was to stop traders from hanging signs over the highway if they could not place A-boards on it. The Senior Highways Enforcement Officer confirmed that a city-wide minimum width would apply to every type of obstruction on the highway, including tables and chairs and shop displays, and could not be used simply to prevent the use of A-boards. In his opinion a city-wide ban on A-boards alone might lie outside the remit of the Licensing Committee and would best be approached by means of a Bylaw. Further legal advice would be needed as to how this could be considered and decided upon by the Council. The Senior Highways Enforcement Officer stated that once signs are off the highway they are no longer the responsibility of the Highways Department and that he would support this kind of measure, but he assumed that planning permission would be needed to hang additional signage.

 

33.10  Councillor Cobb noted that many premises conducted the majority of their business on the highway, with tables and chairs placed outside. She asked how many would be affected by the policy. The Senior Highways Enforcement Officer stated that a 1.3 meter limit would affect some premises, but for the majority, a repositioning of their tables and chairs would suffice in meeting this limit. A 1.5 meter minimum would start affecting more traders detrimentally and a 2 meter minimum would exclude nearly all North Laine traders from using the highway. The Senior Highways Enforcement Officer confirmed that a more detailed survey could be conducted if necessary.

 

33.11   Councillor Simson asked if there was a possibility of limiting the size of the A-boards and whether the Council had considered charging for these licenses based on size. The Senior Highways Enforcement Officer confirmed that a size limit was already part of the licence conditions. The option to charge for licences based on A-board size could be looked into and introduced if approved by the Council.

 

33.12  Councillor Older stated that many newsagents had several signs outside their premises to advertise different papers and news stories. She asked if these traders would not be limited to only one sign. The Senior Highways Enforcement Officer confirmed this would be the case, but noted that the policy did not affect boards on private land

 

33.13   Councillor Janio asked if any case studies of other Councils who had introduced a 1.3 meter minimum width had been looked into, and asked how soon the decision could be reviewed after the Committee meeting. The Senior Highways Enforcement Officer stated that East Sussex County Council had introduced a form of licensing for Brighton old town when they were responsible for highways in Brighton. In introducing the revised system under Brighton & Hove other Council’s systems were looked at, but Brighton & Hove were actually one of the first authorities to set up a comprehensive highway licensing system of this nature.

 

The Senior Highways Enforcement Officer stated that since then, other authorities’ methods were constantly looked at for new ideas and improvements, but it was largely the case that other councils looked to Brighton & Hove to see how its own policies and systems work, rather than the other way round. He gave the example of West Sussex County Council, who were currently experimenting with a system based upon the Brighton & Hove model.

 

The Senior Highways Enforcement Officer noted that the new policy guidelines struck a fine balance between traders’ economic concerns and safety concerns, and felt that a 1.3 meter limit was the right balance. The Head of Network Management added that a 1.2 meter limit was outlined in DfT guidelines, and the department had used this as a basis and added 0.1 meters.

 

33.14  Councillor Lepper was pleased to note that Overview & Scrutiny were looking into this issue and felt it would make more sense to wait until the results of this review had been completed. She felt that 1.3 meters was a very narrow strip for people with disabilities to access and this was a wide-spread problem within the city, but agreed that a policy was needed to ensure that the regulations could be enforced properly. She proposed a deferral of the decision pending the outcome of the scrutiny review.

 

33.15  Councillor Hamilton disagreed with the proposal and stated that the correct forum for making the decision was the Licensing Committee. He felt that the concerns of the street traders also needed to be taken into account when making the decision.

 

33.16  Councillor Simson agreed she had thought about deferring the decision, but believed this process would take too long and the current policy needed to be improved as soon as possible. She suggested an amendment to the decision to allow only one A-board per premises.

 

33.17  Councillor Kitcat stated that applying one limit to the entire city was not appropriate in this circumstance and noted that traders in the old town had no access to passing trade, and relied on A-boards to advertise their business to customers passing on adjacent streets. The policy and amendment as proposed would restrict these traders to advertising at only one end of their street. Councillor Kitcat felt that these local businesses added to the general ambience of Brighton, but recognised the concerns over access to highways for people with disabilities. He agreed that the best place to examine these issues was a full scrutiny review and felt the decision should not be rushed into. He stated that Officers already had delegated powers to operate the current scheme and so the situation would not be made worse by deferring the decision pending a scrutiny review.

 

33.18  The Senior Highways Enforcement Officer stated that although Officers did have delegated powers to make decisions on this issue, applicants still had a right of appeal, and there were currently no guidelines for an appeal panel to refer to.

 

33.19  Councillor Kitcat asked if the appeal panel would be able to ignore guidelines set by the Licensing Committee if the scrutiny review came to a different recommendation. The Senior Highways Enforcement Officer stated that each appeal case was taken on its merits, and the intentions of Members would of course be taken into account when assessing whether an A-board was appropriate or not.

 

33.20  Councillor Janio stated that the decision needed to be made at the Licensing Committee, and this would enable the relevant Overview & Scrutiny Committee to assess the effects of the policy.

 

33.21  Councillor Fryer asked what percentage of business owned private land in the central licensing zone. The Senior Highways Enforcement Officer stated that approximately 53% on Western Road, Hove and 40% on St James’ Street. There was a perception that a large amount of signage was situated on the highway in other parts of town, but these were in fact on private land.

 

33.22  Councillor Fryer stated she would support deferral of the decision and felt that an Overview & Scrutiny Panel would be able to consider the issue from a blank starting point.

 

33.23  Councillor Hamilton asked if Members had any input in the appeals process, and whether they could write a representation in support of an applicant. The Senior Highways Enforcement Officer stated that it was possible for Ward Councillors to personally represent the applicant during the appeal process, but noted that under the Highways Act, unlike under other licensing legislation, it was normally only applicants, relevant frontagers and those materially affected by a placement who could make direct representations to Committee. An individual Councillor might not necessarily be personally and directly affected by a licence. In such cases the Member might not have a right to make a representation regarding a licence application to Committee. A Councillor would have a right to make a representation on their own behalf if personally materially affected by the licence, or if a relevant frontager. He noted however that Officer Reports to Committee would include mention of all relevant representations received.

 

33.24  Councillor Hamilton asked if a member of the Licensing Committee could make a representation at an appeals hearing and the Solicitor to the Committee stated that this might be possible, but would be taken on a case by case basis.

 

33.25  Councillor West felt this was a serious issue and affected people’s ability to navigate the highway effectively. He did not think the Committee should be forced into a decision for the sake of good governance and that it should be deferred until it had been scrutinised properly.

 

33.26  The Head of Environmental Health and Licensing stated that if the Committee took the decision to defer, they would be deferring to another Licensing Committee meeting. He noted that the Council was not in a strong position given there was no approved policy, and felt the authority could be challenged successfully. He also noted that applicants were unsure of the regulations regarding highways as there was no guidance currently published for this. He stated that it was the function of the Licensing Committee to set policy in this area, but noted that any decisions could be reviewed by other forums should the need arise.

 

33.27  Councillor Kitcat asked if there was a previous policy on this issue and the Head of Network Management stated that there was an old East Sussex County Council policy in existence, but that it was not specific enough.

 

33.28  Councillor Kitcat asked if Officers considered the Council’s position to be weak because of the lack of measurements in the current policy or because no guidance had been produced by the Council. The Head of Environmental Health and Licensing stated that the Council needed to show consistency and reasonableness in decision making, and therefore an up-to-date policy was needed.

 

33.29  A vote was taken, but failed, on the motion to defer the decision, as proposed by Councillor Lepper and seconded by Councillor Kitcat.

 

33.30  A second vote was taken, and agreed, on the motion to amend the recommendation to include a limit on A-boards to one per premises, as proposed by Councillor Simson and seconded by Councillor Fryer.

 

33.31  A third vote was taken, and agreed, on an amendment to the recommendation to allow special consideration for premises situated in twittens and alleyways regarding this policy, as proposed by Councillor Kitcat and seconded by Councillor West.

 

33.32  RESOLVED – That the Committee agrees the following policy in relation to traders’ items placed upon the public highway:

 

1.         That no licensed traders’ items should be permitted to reduce the width of a footway to less than 1.3 meters except where:

           

a)         A formal pedestrian zone has been established in a road by Traffic Order and the whole of the carriageway is kept clear for pedestrian use;

 

b)         A road is closed to vehicular traffic by virtue of a temporary Traffic Order and the whole of the carriageway is kept clear for pedestrian use;

 

c)         A road is considered to be shared space and the whole carriageway is generally available for pedestrian use.

 

2.         That where a footway is reduced to a width of 1.3 meters (or less) by objects (whether these objects be traders’ items of fixed street furniture such as lamp posts, bins etc.) ‘turning areas’ for manual wheelchair users and guide dogs must be established at regular intervals. These turning areas shall not be less than two meters in length and shall be the full width of the footway. Such areas must be maintained at intervals of no more than six meters along the length of any restricted footway.

 

3.         That, except in the case of items within large, waiter-serviced sitting-out areas, no traders’ item shall be permitted to be placed more than 5 meters from the licensed premises. All objects must be within sight from a window or door of said premises or in clear visual range of CCTV camera(s) monitored from within the licensed premises. This provision will mainly affect advertising boards.

 

4.         That where an application is refused by Officers, an applicant may appeal to the Licensing Sub-Committee (the Licensing Panel).

 

5.         That applications for A-Boards shall be restricted to 1 per premises (excluding those situated on private land), but that:

 

a)         Special consideration will be given to those premises situated in twittens and alleyways regarding this policy.