Stephen McGowan

Thursday 2 July 2020 brought a number of announcements of real interest and importance to the Scottish hospitality industry, and three stand out. First, confirmation that outdoor hospitality spaces such as beer gardens and pavement cafes, can open as planned from Monday 6 July (subject to licensing).

Second, an indication that on entering phase 3 of the route map, likely around 15 July 2020, there would be a relaxation of the 2 metre distancing requirement to 1 metre “plus mitigations” in relation to key sectors such as hospitality. Finally, the Chief Planner has asked local authorities not to apply the ‘28 day rule’ in relation to temporary outdoor uses.

Reopening of outdoor hospitality spaces

With the opening of outdoor hospitality spaces from today, it is now vital that licence holders across Scotland make sure that they are ready to go live.

When opening, it is important to prepare risk assessments in line with Scottish government and trade association guidance. It is also important to comply with all licensing conditions such as making sure that the identity of the premises manager is up-to-date and that all signage is correct and on display.

Many of the businesses we work with have existing licensed outdoor spaces; we are also working on securing scores of occasional licences for others to add or extend outdoor spaces. Many applications are going to the wire but we are pleased to see the first of these now being issued. If you need support in relation to the use of outdoor areas anywhere in Scotland, get in touch quickly.

Further coronavirus regulations were issued which has implications for the use of coverings (such as marquees) in outdoor areas. It has been confirmed that the so-called “50% Rule” will apply – this is lifted from the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 and means that at least 50 per cent of the area must be open to be treated as outdoors for the purposes of the coronavirus regulations allowing beer gardens etc to open from 6 July 2020. This can be a tricky area of law to navigate and we urge operators to take advice as soon as possible.

Relaxation of social distancing

The relaxation of the 2-metre distancing requirement will, of course, be warmly welcomed by the industry. It is, however, important that the parameters of this relaxation are understood. The First Minister made it clear that 2-metre distancing will be the norm with 1 metre permitted where additional mitigations are in place. These mitigations will be consulted on and agreed with the industry ahead of phase 3. But, to allow the industry to start to plan ahead, the following examples of mitigation measures have been given:

• No standing – all customers seated;
• Face coverings by staff;
• Clear systems for safe ordering and payments;
• Clear systems for safe use of toilet facilities;
• Use of screens between seating areas;
• Good ventilation;
• Good signage;
• Reduced noise measures e.g. no background music, to reduce need for customers to shout; and
• Clear messaging on need to provide contact details to support Test & Protect.

The First Minister made clear that the opening of beer gardens on 6 July 2020 will be under the 2-metre rule initially with the move to 1 metre plus mitigation happening on or around 15 July.

The nature of the 1-metre distancing being the exception to the rule is underlined by the need for businesses implementing such a policy to display signs advising customers that they are entering a “1-metre zone”.

While many of these measures will be relatively straightforward for businesses to implement, and may already be in place - such as having staff wear face coverings and clear signage; others will require changes to business models. Clients are already contacting us in relation to music and rest assured we are contacting the Scottish government for clarity on what appears an arbitrary rule. It is important to stay apprised of upcoming requirement such as the the pending guidance on taking personal details from customers for Test & Protect.

Relaxation of planning controls

Planning law allows the temporary use of land for up to 28 days in a calendar year without the need to obtain planning permission. We have campaigned for this to be relaxed for some time to aid the COVID recovery, and are therefore delighted that as of 2 July  the Chief Planner has issued guidance to local authorities advising that this 28-day limit should not be applied in an effort to support businesses and facilitate social distancing.

This relaxation includes not just the use of outdoor spaces, but also temporary structures in those spaces. This means that licence holders should have greater flexibility to use external areas without having to obtain planning permission and this will run until September 2020 before being reviewed again. It should, however, be remembered that authorisation from the council’s road department and licensing board may be required depending on the proposal.  The erection of structures may also require building standards consent.

Stephen McGowan is a partner and head of Licensing (Scotland) at TLT.