Guidance

Model byelaw set 8: guidance notes

Updated 7 September 2018

Applies to England

Introduction

1. These model byelaws for the good rule and government 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 235 of the Local Government Act 1972 enables district and borough councils to make byelaws for the good rule and government of the whole or any part of the district or borough and for the prevention and suppression of nuisances.

3. Byelaws cannot be made under this section if provision for the purpose in question is made, or may be made, under any other enactment. Byelaws should not therefore be made under section 235 where general or local legislation addresses the problem or in respect of any area where another byelaw-making power is available. Before making byelaws, local authorities should consult the appropriate government department about any existing general legislation and seek their own legal advice.

4. Many of the activities regulated by byelaws made under section 235 are not in themselves a danger or nuisance, but may be if conducted in certain areas or in a particularly hazardous or annoying manner. Consequently, local authorities do not have the power under section 235 to make byelaws to prohibit activities such as skateboarding or riding throughout their area. However, it may be appropriate to ban these activities in certain places where it causes a particular danger or nuisance, or to regulate the manner in which those activities can be conducted.

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 [email protected].

Consultation

6. 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

7. 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 good rule and government byelaws (such as urinating 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.

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 published the draft order. Further advice can be obtained from the Home Office.

How to use model byelaw set 8

Instructions and layout

9. Councils should download and edit the version of model byelaw set 8 – byelaws for good rule and government.

10. Words highlighted 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. Generally, square brackets are used to indicate:

(1) additional wording, which it may be appropriate to use in some cases, (eg “[Outside the designated areas]”)

(2) a choice of wording (eg “[Borough/District];” or

(3) numbers which it is likely will need to be updated when editing the model byelaw set (eg Schedule [1]).

11. If the byelaws are to include schedules or maps, these should appear before the council’s seal.

Interpretation provisions

12. 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

13. Model byelaws 2, 3 and 4 of set 8 provide alternative formulas for stating the geographical area to which the byelaws apply. Local authorities should consider carefully which provision or combination of provisions fulfils their intention.

14. Model byelaw 2 should be adopted where all of the byelaws will apply throughout the local authority area.

15. Model byelaw 3 should be adopted where the byelaws will apply to only parts of the local authority area.

16. Model byelaw 4(1) is appropriate where most of the byelaws are to apply throughout the local authority area, but with certain exceptions, set out in model byelaws 4(2) to (4).

17. Model byelaws 4(2) to 4(4) provide a number of possible means of limiting the application of one or more byelaws to part of the local authority area.

18. Model byelaw 4(2) is appropriate where the areas to which a byelaw is to apply are to be indicated by means of signs displayed in the relevant areas. This is likely to be appropriate only where small or clearly marked areas of land are covered by the byelaw.

19. Model byelaw 4(3) enables a council to designate parts of the local authority area covered by the byelaw by listing those areas in a schedule to the byelaws. The words in square brackets refer to the use of a plan. A plan should be used in most cases, as a verbal description of the area will often not be enough to ensure that the boundaries of the areas referred to are clear.

20. Model byelaw 4(4) is similar to model byelaw 4(3) except that it applies to a discrete type of structure (bridges rather than “designated areas”). A plan may be necessary in some cases (see notes for model byelaw 4(3)).

Further information on model byelaw set 8

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

Riding and vehicles on road margins and verges

22. In most cases the margin or verge of a road will form part of the highway, and can therefore be regulated by means of a traffic regulation order. These model byelaws should only be adopted where it is not possible to make a traffic regulation order. In model byelaw 6(2) of set 8, heavy commercial vehicles are excluded because they are already subject to regulation under sections 19 and 20 of the Road Traffic Act 1988.

Skateboarding etc

23. The definition of self-propelled vehicles is wide enough to encompass a number of activities in addition to skateboarding, including roller-blading and riding non-motorised scooters, but does not catch bicycles, wheelchairs or prams.

24. The words in square brackets in model byelaw 7 of set 8 should be adopted where some or all of the land included in the “designated area” is a quasi-public space which has a private landowner (eg a privately owned car park), in order not to infringe on private property rights.

25. The words in square brackets in model byelaw 8 should be adopted where the council wishes to adopt model byelaws 7 and 8 together, ie to impose a general prohibition on dangerous and nuisance skateboarding on footpaths and roads throughout the local authority area and a complete prohibition on skateboarding within more specific areas, in order to make it clear that model byelaws 7 and 8 do not overlap.

Fairground attractions causing obstruction to traffic

26. Model byelaw 9 regulates traffic hazards caused by fairground rides and stalls set up in public places or land adjacent to a public place or street. It cannot be used to regulate stalls or rides set up on the road, which should be dealt with by means of a traffic regulation order.

Games on or near the highway

27. Games played on the highway to the annoyance of users of the highway are regulated by section 161 of the Highways Act 1980. The purpose of model byelaw 10 of set 8 is to address respectively the nuisance or danger of games played near the highway and games which cause annoyance to local residents, who are not protected by the 1980 Act unless using the highway.

Touting

28. Model byelaw 11 is limited to obstruction or nuisance caused by persons touting for business for services or stopping passers-by for market research purposes. Activities to promote the sale of goods can be dealt with under street trading legislation. Touting for taxi business is already the subject of legislation and is therefore excluded from the scope of the byelaw. The Department for Digital, Culture, Media and Sport advice is this byelaw does not cover collections for a charitable, philanthropic or benevolent purpose.

Revocation

29. The text of model byelaw 16, which can be used to revoke byelaws, 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

30. 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: [email protected]

31. For enquiries about vehicles and general traffic legislation contact the Department for Transport.