Guidance

Model byelaw set 6: guidance notes

Updated 7 September 2018

Applies to England

Introduction

1. These model byelaws for the seashore 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 82 of the Public Health Acts Amendment Act 1907 enables district councils only to make byelaws to regulate the user of the seashore and to provide for the preservation of order and good conduct for the purpose of preventing danger, obstruction or annoyance to persons using the seashore.

3. It will generally not be possible to prohibit an activity for which there is only a power to regulate. However, it may be possible to restrict certain aspects of the activity, for example by limiting that activity to certain areas of the seashore or certain times of the day. Where councils intend to deviate from the model byelaws, they should read the enabling power carefully to determine whether they have the power to do what is proposed.

4. 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

5. 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

Anti-Social Behaviour, Crime and Policing Act 2014

6. 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 seashores 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.

7. Local authorities should consider Public Space 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 advice can be obtained from the Home Office.

How to use model byelaw set 6

Instructions and layout

8. Councils should download and edit the version of model byelaws set 6 – byelaws for the seashore.

9. Words shown in italic font in the model byelaw set give instructions on how to adapt the model (eg “select from the following list terms to be used in the byelaws”) 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. Generally, square brackets are used to indicate:

(1) additional wording, which it may be appropriate to use in some cases (eg “[or the Duchy of Cornwall]” in model byelaw 25 of set 6 where the Duchy of Cornwall has a proprietary interest in the area”)

(2) a choice of wording (eg ‘No person shall ride a horse in any of the grounds listed in [the Schedule] or [Schedule 1] or [Part [2] of Schedule 2]’); or

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

Interpretation provisions

10. 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 schedule

11. Where the byelaws will apply to more than one area of seashore, those areas should be listed in a schedule to the byelaws as indicated by the model set. The names or a description of the areas by reference to physical landmarks should be given under an alphabetical list of towns or districts in which the areas are located.

12. If the byelaws are to apply to a limited part of the seashore, the description of the area should refer to physical landmarks which the public will recognise, and 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.

Signs

13. Local authorities are required to place notices in conspicuous positions when this is specifically mentioned in a byelaw. You should also consider whether notices would be helpful in regard to other byelaws (eg to indicate a restricted area in which bait digging is not permitted in model byelaw 7 of set 6).

Fees and permits

14. 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 6

Vehicles

16. Section 34(1) of the Road Traffic Act 1988 (prohibition against 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 purposes of parking on that land. Local authorities should rely upon the 1988 Act to prohibit the riding or driving of mechanically propelled vehicles on the seashore.

Bait digging

17. The judgement in the case of Anderson v. Alnwick District Council [1993] 3 All ER 613 established that the public right to engage in bait digging is ancillary to the common law right to fish on the seashore. Bait digging may be regulated by these byelaws but may not be prohibited. Regulation might include the prohibition of bait digging within specified areas of the seashore or the prohibition of bait digging for commercial purposes except with the consent of the council but byelaws cannot be used to ban bait digging altogether.

18. Any restricted area in which bait digging is prohibited should not be so extensive as to prevent bait being dug reasonably close by, since it could otherwise adversely affect the common law right. In the definition of “restricted area”, the description of the area should if possible be given by reference to physical landmarks which the public will recognise. Paragraph 12, above, gives further guidance on this point.

Public shows and performances

19. Councils considering adopting model byelaw 12 should bear in mind their responsibilities as public authorities under the Human Rights Act 1998. Any restriction on such events must be justified under article 10 (freedom of expression). A complete prohibition on performances on the seashore is unlikely to be justified, so if model byelaw 12 is adopted an appropriate designated area must be set aside on the beach where performances can take place.

Trading

20. Model byelaw 15 deals with obstruction or nuisance caused by persistent trading or touting. More general controls on the sale of goods should be dealt with under street trading law. Although the enabling power in section 82 of the Public Health Acts Amendment Act 1907 refers specifically to the regulation of selling and hawking, powers to control street trading under the Local Government (Miscellaneous Provisions) Act 1982 are more comprehensive and should be used in preference. “Street” includes beach for the purposes of the 1982 Act.

Fires and parties

21. It is considered that a prohibition on holding parties may be outside the scope of these byelaws because it goes beyond regulation of the user of the seashore. However, it is recognised that controls over such events may be necessary in some areas for the preservation of order and good conduct, to prevent danger or nuisance to those using the seashore.

Aircraft, hang gliders and hot air balloons

22. The rules of Air Regulations do cover urban areas. Local authorities are advised to contact the Department for Transport to confirm as to whether the area that they are seeking to make the byelaws for is classed as an urban area.

Sky lanterns

23. 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.

24. More generally, local councils when 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.

25. 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.

Revocation

26. The text of model byelaw 27 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

How to contact MHCLG

27. 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