Guidance

Model byelaw set 5: guidance notes

Updated 7 September 2018

Applies to England

Introduction

1. These model byelaws for promenades 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 83 of the Public Health Acts Amendment Act 1907 enables district councils to make byelaws to regulate the user of any promenade and to provide for the preservation of order and good conduct for the purpose of preventing danger, obstruction or annoyance to persons using the promenade. A parish council which considers that promenade byelaws are needed for its area might wish to contact the district council with their proposal, although any decision to make the byelaws would be at the district council’s discretion.

3. 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

4. Local authorities should consult as widely as is considered necessary about the implications of the byelaws. In the case of byelaws which imply that an activity will be confined to a particular area, any local disability groups (including associations for those with sight and hearing limitations) should be consulted to ensure that their opinions are taken into account and that any operational matter (such as appropriate signing) can be considered.

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 promenades 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 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 5

Instructions and layout

8. Councils should download and edit the version of model byelaw set 5 – byelaws for promenades.

9. 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 “[except in a designated area]”) and

(2) a choice of wording (eg “[name of promenade/each of the esplanades and promenades described in the schedule to these byelaws]”.

10. If the byelaws are to include schedules or maps, these should appear after the draft byelaws.

Interpretation provisions

11. 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

12. Where the byelaws will apply to several promenades, they should be listed in alphabetical order in a schedule to the byelaws. If the byelaws are to apply to a limited part of a promenade, 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. 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 when this is specifically mentioned in a byelaw. You should also consider whether notices would be helpful to draw the attention of the public to other byelaws.

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 5

Vehicles

15. 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 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 promenade, and only adopt model byelaw 6 of set 5 if it is intended to permit use of vehicles or certain classes of vehicles on some parts of the promenade.

Trading

16. Model byelaw 7 of set 5 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.

Revocation

17. The text of model byelaw 18 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 Housing, 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

18. 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]