Guidance

Model byelaw set 10: guidance notes

Updated 7 September 2018

Applies to England

Introduction

1. These model byelaws for markets have been revised to reflect recent changes to national legislation. Every attempt has been made to ensure that changes are up to date, but authorities should check for themselves, and take legal advice where necessary.

The enabling power

2. Section 60 of the Food Act 1984 provides for a local authority who maintain a market to make byelaws for regulating the use of the market place, for preventing nuisances or obstructions, for regulating porters, fixing certain charges and for preventing the spread of fires. As the legislation requires the local authority to consult the fire authority, draft byelaws should be accompanied by confirmation that this has been done.

3. These model byelaws are intended as a guide to local authorities in their preparation of byelaws for regulating the use of their markets.

4. Local authorities should ascertain as to whether they have any other enforcement powers available at either a national or local level, before seeking leave from the Secretary of State to make market byelaws.

5. Byelaws should be adopted only if required to address an existing problem. If councils are in any doubt about the layout of the byelaws, they are advised to use the model byelaws or contact the byelaws team byelaws@communties.gov.uk.

6. The byelaws should be numbered. Copies of any earlier byelaws that are being revoked should be sent with the new draft byelaws.

Consultation

7. In drafting proposed byelaws, local authorities must have due regard to their Public Sector Equality Duty and the provisions of the Equality Act 2010, including the requirement to the need to eliminate unlawful discrimination, harassment or victimisation, and to advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not share it

8. Local authorities should consider Public Spaces Protection Order designed to deal with anti-social behaviour in a public place and apply restrictions to how that public space can be used to stop or prevent anti-social behaviour. The order is issued by the council and before the order can be made the council must consult with the police and whatever community representatives they think appropriate, including regular users of the public space. Before the order is made the council must also publish the draft order. Further details can be found in Reform of anti-social behaviour powers: statutory guidance for frontline professionals.

How to use model byelaw set 10

Interpretation provisions

9. The interpretation provision should be used to define terms which are repeated several times in the text of the byelaws. Councils should only include definitions which appear in the text of the byelaws that the council has selected. Where a defined word only appears in the text of one of the byelaws which a council proposes to adopt, that definition may be included within the text of the byelaw instead, preferably as a separate sub-paragraph.

Further information on model byelaw set 10

For preservation of order

10. Model byelaw 12 deals with requirements on the preservation of order and seeks to prohibit the use of various noise equipment in markets.

11. Section 62 of the Control of Pollution Act 1974 controls most uses of a loudspeaker. Therefore when considering making this byelaw local authorities should have regard to whether loudspeakers can be covered through section 62 and whether the market where the byelaw would be applied falls within section 62 in a specific market context – namely, a highway or any other road, footway, square or court which is for the time being open to the public. If the market where the byelaw would apply is not located in such a place, then retaining a reference to loudspeakers in the model byelaw may be considered on the grounds section 62 will not apply.

Livestock markets

12. Local authorities should have regard to the provisions in the Welfare of Animals at Markets Order 1990 when making byelaws.

Revocation

13. The text of model byelaw 20 contains a number of instructions which may require further elaboration:

• “insert name” - the relevant name will be that of the council which made the byelaws, even if that council is no longer the local authority for that area or is now defunct
• “insert date” - this is the date on which the byelaws were made
• “insert name of confirming authority/authority that gave leave to make the byelaw” - eg The Secretary of State for the Home Department or Communities and Local Government
• “insert date byelaws were confirmed” - this is different from the date on which they byelaws came into force

How to contact MHCLG

14. Applications seeking leave from the Secretary of State to make the byelaws and any queries should be addressed to:

Byelaws Team
Ministry of Housing, Communities and Local Government
2nd Floor NE, Fry Building
2 Marsham Street
London
SW1P 4DF

Email: Byelaws@communities.gov.uk