Guidance

Model byelaw set 2: guidance notes

Updated 7 September 2018

Applies to England

Introduction

1. These model byelaws for pleasure grounds, public walks and open spaces 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 164 of the Public Health Act 1875 and section 15 of the Open Spaces Act 1906 enable local authorities to make byelaws for the regulation of public walks and pleasure grounds and of open spaces and disused burial grounds respectively. Any council wishing to make byelaws for active burial grounds, should contact the Ministry of Justice. Section 12 of the Open Spaces Act 1906 extends the types of land for which byelaws can be made under section 15 of that Act. Which enabling powers are appropriate for making the byelaw will depend on the statutory authority from which the council’s interest in the land is derived and whether or not the council is involved in the management of the land.

3. If the council cannot establish under what statute it holds a ground, it should proceed as though it held it under a statute without a specified byelaw-making power. Flowchart 1 should then be used to help identify the correct byelaw-making power for each ground the local authority wishes to regulate. The flowchart applies to open land that is used as a pleasure ground. The Open Spaces Act 1906 is not, however, relevant when more than 5% of the area is covered by buildings.

4. Where there is a joint interest in any ground, it is advisable to seek the permission of all the interested parties before the byelaws are made. Grounds in which the Charity Commissioners have an interest can only be regulated with their agreement. Similarly, the agreement of the diocesan authorities, the incumbent, and the parochial church council should be sought where there are proposals to regulate burial grounds or churchyards. As it will normally not be appropriate to regulate churchyards under section 164 of the Public Health Act 1875, councils should study carefully all of the relevant provisions of the Open Spaces Act 1906 (particularly sections 6, 11, 12, 15 and 20) before making byelaws. If a council has not acquired “any estate, interest or control” under the 1906 Act, it might be possible to make byelaws for good rule and government and suppression of nuisances under the general power in section 235 of the Local Government Act 1972, but again, only with the written permission of the Church authorities.

5. Flowchart 2 should be used to help local authorities identify the correct byelaw-making power for any common land or town or village green they wish to regulate. The chart applies to common land and town or village greens, whether or not they are registered as such under the Commons Registration Act 1965. Please note that flowcharts 1 and 2 do not provide a definitive statement of the law but are offered as guides only.

6. 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.

Consultation

7. Some types of byelaw can be controversial and may attract objections if those who will be affected have not been consulted. These include byelaws in respect of horse-riding, and the use of metal detectors and power-driven model aircraft. We consider that in such cases local authorities should ensure that adequate local consultation has taken place before adopting such measures. Further guidance on these subjects is set out below.

8. In the case of byelaws which imply that skateboarding, roller skating and cycling will be confined to particular areas, local authorities should consult widely about the implications of such byelaws and, in particular, with any local disability groups (including associations for those with sight and hearing limitations) to ensure that their opinions are taken into account and that any operational matter (such as appropriate signing) can be considered.

9. 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 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.

Anti-Social Behaviour, Crime and Policing Act 2014

10. The Anti-Social Behaviour, Crime and Policing Act 2014 introduced new powers to address anti-social behaviour. Before considering going through the byelaw route to address issues covered in pleasure grounds, public walks and open spaces byelaws the council may wish to consider if any of the powers in the Anti-social Behaviour, Crime and Policing Act 2014, including Public Space Protection Orders (PSPOs), may be the best fit to address the problems being experienced locally. Further details can be found in Reform of anti-social behaviour powers: statutory guidance for frontline professionals.

11. Local authorities should consider PSPOs 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 advice can be obtained from the Home Office.

How to use model byelaw set 2

Instructions and layout

12. Councils should download and edit the version of model byelaw set 2 – byelaws for public walks and pleasure grounds. Where a council is proposing to make byelaws under the arrangements provided for in the Byelaws (Alternative Procedure) (England) Regulations 2016, we would prefer councils to send to us an electronic version of their proposed byelaws.

13. Words shown in italic font in the model byelaw set give instructions on how to adapt the model (eg “insert name”) or provide a more detailed description of what is covered by a model byelaw where a number of model byelaws relate to the same subject matter (eg model byelaws 15 to 18 of set 2 which are all concerned with horses). Generally, square brackets are used to indicate:

(1) additional wording, which it may be appropriate to use in some cases (eg the wording “[except in a designated area for fishing]” in model byelaw 43 can be used if there is such an area in the ground but should otherwise be omitted)

(2) a choice of wording (eg “[attached to a control line]/[kept under effective radio control]”) in byelaw 50), where one form of wording must be chosen

(3) numbers which it is likely will need to be updated when editing the model byelaw set

Interpretation provisions

14. 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.

Application and schedules

15. Model byelaw 2 of set 2 should be adopted where the byelaws will apply to only one ground or where the byelaws will apply uniformly to several grounds. Model byelaw 3 should be used in all other cases.

16. Where model byelaw 3 of set 2 is adopted, grounds to which any byelaw applies specifically should be indicated, either in the relevant byelaw or in Part 1 of Schedule 2 (eg model byelaw 4, which should only be used in the circumstances set out in paragraph 22 below, might apply to some but not all of the grounds to which the byelaws apply generally).

Designated areas and routes

17. A number of model byelaws refer to a “designated area” or a “designated route”. These terms refer to an area or route which the council has set aside for a particular purpose. Any such area or route and its purpose must be indicated in the ground concerned by means of clearly displayed signs.

Descriptions of grounds and references to geographical locations

18. Where a schedule is used to list the grounds to which the byelaws will apply, the list should be alphabetical by name or by brief description of location under an alphabetical list of the towns or districts in which the grounds are located.

19. Precise descriptions of the grounds are important: names of grounds should be used, or, if these are ambiguous, the council should refer to street names or physical landmarks. References to local authority boundaries or Ordnance Survey map references should only be used in addition to any descriptions. Any map or plan that is referred to in the byelaws should be: in black and white; of a suitable size for inclusion in the byelaws; and should precede the council’s seal. Colour can be used for maps, but councils should be aware that after confirmation printed copies of the byelaws will have to be made available in colour.

Fees and permits

20. Byelaws should not be used to compel any person to pay a fee to the council or to introduce a licensing or permit scheme.

Further information on model byelaw set 2

21. The notes below highlight points to bear in mind in relation to particular model byelaws.

Opening times

22. For reasons of enforceability, model byelaw 4 of set 2 should be adopted only if the ground is enclosed on all sides and can be secured with lockable gates

Protection of wildlife

23. Model byelaw 9 of set 2 applies to the hunting, shooting or trapping of animals. If the ground includes a river or other waterway and it is sought to protect wildlife in the waterway, model byelaw 40 (fishing) should be adopted. Birds and their nests are already protected by section 1 of the Wildlife and Countryside Act 1981.

Climbing

24. Byelaws should not be used to protect people from the consequences of their own actions. For this reason, model byelaw 7, which is concerned with climbing, should only be used to prevent a nuisance from being caused to others.

Fires

25. The words in square brackets need only be adopted if camping or barbecues or both are to be permitted in an area of the grounds.

Missiles

26. Local authorities seeking to make a byelaw about missiles should have regard to the guide on combating anti-social behaviour when considering what action is appropriate to take.

Sky lanterns

27. Where a local council wishes to include a specific reference to the release of sky lanterns, the byelaw making authority should consider the need to regulate the activity in a specific open space where the release of sky lanterns would be a nuisance impeding the peaceful enjoyment of that public place.

28. More generally, local councils considering making this byelaw should first consider and explore whether existing legislation is available through which the issue could be regulated, including Public Space Protection Orders (PSPOs) and the Licensing Act.

29. Local councils should also consult the Maritime and Coastguard Agency, where necessary, as the use of sky lanterns may already be regulated if:

(a) the public ground is close to an airport(s) or airfield(s)

(b) advise on the prohibition of sky lanterns because of the flight safety hazard they present to aircraft landing, taking off

(c) operating in the vicinity of the airport or airfield and if the activity is close to the coast (eg within 3 miles) or a river estuary or large body of water where boats are normally operated

In these circumstances local councils should contact the Coastguard and seek guidance on the launching of sky lanterns.

Horses

30. When the Secretary of State considers giving leave to make the byelaws, he must be satisfied that they are reasonable and do not discriminate unfairly against one section of the community. A ban on horse-riding in smaller grounds would be reasonable but not justified in grounds of 4 hectares (10 acres) or more.

31. Where a local authority wishes to make a byelaw to restrict or ban horse-riding in a particular ground, it should first consider what other facilities exist in the area for riding and also consult any local riding schools and, as far as possible, individual horse riders by, for example, placing notices at the entry to the ground or newspaper advertisements.

Vehicles

32. Section 34(1) of the Road Traffic Act 1988 (prohibition of driving mechanically propelled vehicles elsewhere than on roads) provides that if without lawful authority a person drives a mechanically propelled vehicle:

(a) on to or upon any common land or moorland or land of any other description, not being land forming part of a road, or

(b) on any road being a footpath, bridleway or restricted byway, he is guilty of an offence

However, it is not an offence under section 34 to drive a mechanically propelled vehicle on any land within 15 yards of a road upon which motor vehicles may lawfully be driven for the sole purpose of parking on that land. Local authorities should rely upon the 1988 Act to prohibit the riding or driving of mechanically propelled vehicles in pleasure grounds and open spaces, and only adopt model byelaw 21 of set 2 if it is intended to permit use of vehicles or certain classes of vehicles in some areas of the ground.

33. Model byelaw 21 includes words in square brackets which may be adopted if the council has, for example, set aside a route through a large ground for motorcycles. Where this is the case, model byelaw 21(2) enables persons wishing to make use of the designated route to transport their motorcycle through the ground to reach the route. This may need to be adapted to the circumstances of the ground in question, and will be unnecessary where it is possible to enter and exit the ground while remaining on the designated route.

Ball games

34. It will usually only be appropriate to ban ball games in a very small ground. Where the playing of ball games is to be banned or severely restricted there should be other grounds in the locality where ball game restrictions do not apply.

35. Where a designated area for playing ball games is set aside and model byelaw 29 of set 2 is adopted, the byelaw will not be breached unless a person breaking the rules set out in schedule 3 (and displayed in the area) has been asked to desist from the prohibited behaviour. Only if that person ignores this request will they become liable to removal from the park and to prosecution. This condition prevents model byelaw 29 from capturing very trivial incidents.

Power-driven model aircraft

36. When adopting any of model byelaws 47 to 51 of set 2, councils should take account of the provisions of the Code of practice on noise from model aircraft. They should also consult the Safety Code of the British Model Flying Association for guidance on what types of model might be flown in particular grounds. Before making and advertising the byelaws the council should bring their proposals to the notice of the British Model Flying Association and of any local model aircraft clubs and consider their views.

37. Byelaws concerning model aircraft are designed to regulate (1) noise nuisance caused by aircraft; and/or (2) any public safety concerns caused by the use of larger and more powerful model aircraft. The basic wording in the definition of “power-driven” in interpretation of Part 6 addresses aircraft which create noise nuisance. If there is also a genuine public safety concern, the words in square brackets bring quieter model aircraft within the definition.

Model aircraft/drones

38. A drone is an unmanned aircraft, normally flown by a pilot from a distance, using a remote control station that communicates instructions to the drone. Drones are also known as Remotely Piloted Aircraft Systems (RPAS) or Unmanned Aircraft Systems (UAS).

39. The relevant aviation legislation for drones is found in the Air Navigation Order. These regulations apply to all flying of ‘unmanned aircraft’ ie drones but also model aircraft. Drone flyers must obey these rules unless they have an exemption or licence from the Civil Aviation Authority. Councils may also wish to consider the UK Dronecode. This is guidance based on the regulations in place and published by the Civil Aviation Authority to assist drone users in flying safely.

40. Drone operators collecting personal data must comply with the Data Protection Act 1998 unless a relevant exemption applies.

Metal detectors

41. Local authorities may introduce byelaws to prohibit or restrict the use of metal detectors in pleasure grounds. Byelaws to prohibit the use of metal detectors may be appropriate in grounds requiring special protection, for example areas consisting of closely mown and carefully cultivated turf and flower beds or sites of archaeological botanical or scientific interest or areas much used by blind or disabled persons. However, a byelaw which prohibits the use of metal detectors in areas not in need of special protection or from all the grounds in a particular area may be seen as overly restrictive and unreasonable. The model byelaw can be adapted to provide for partial bans as necessary.

42. Where a local authority wishes to introduce a byelaw to restrict or prohibit the use of metal detectors in any ground, we consider that it should first consult any local metal detector clubs or a national body representing metal detector users, such as the National Council for Metal Detecting.

43. The Department for Digital, Culture, Media and Sport should also be consulted.

Removal of offenders

44. It should be noted that in model byelaw 60 of set 2, the term “officer of the Council” will not extend to an employee of a private security firm, even though authorised to act by the council.

Revocation

45. The text of model byelaw 62 of set 2 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 giving leave” - eg The Secretary of State for Housing, Communities and Local Government
• “insert date byelaws were confirmed” - this is different from the date on which the byelaws came into force

46. Byelaws made under section 8(1)(d) of the Local Government Act 1894, or other repealed legislation, are able to be revoked under the enabling power at section 236B of the Local Government Act 1972. Where a local authority is seeking to revoke byelaws under this enabling power the text for the revocation byelaw is:

The byelaws made by [insert name] on [insert date] and confirmed by [insert name of confirming authority/authority giving leave] on [insert date of confirmation/date given leave] relating to the ground are hereby revoked under Section 236B(2) of the Local Government Act 1972.

47. The Ministry of Housing, Communities and Local Government do not confirm any byelaws relating to dogs. These activities can be addressed through Public Space Protection Orders which are the policy responsibility of the Home Office. Councils should contact the Home Office.

How to contact MHCLG

48. 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