Byelaws and local councils

Introduction

A byelaw has been judicially defined as “an ordinance affecting the public or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance”. A byelaw thus supplements, but does not supplant, in its area or application the ordinary statute or common law which applies in England or Wales.

A byelaw can only be made by a person or body with statutory powers to make the byelaw. As a general rule, private individuals, private organisations or associations have no such powers.

There is separate legislation in England and Wales so that the law and procedures differ between the two countries. This article applies only to byelaws made by local councils.

England

There are now two procedures for local councils to use in making byelaws.

Original procedure

The original procedure is set out in sections 236, 236B, 237 and 238 of the Local Government Act (LGA) 1972. Under this procedure, a council may make byelaws to regulate:

public walks and pleasure grounds (Public Health Act 1875);
open spaces and burial grounds (Open Spaces Act 1906);
baths, swimming pools, bathing places or washhouses (Public Health Act 1936);
mortuaries and post-mortem rooms provided by the council (Public Health Act 1936);
hiring of pleasure boats in a park or pleasure ground provided by the council (Public Health Acts Amendment Act 1890);
markets provided by the council (Food Act 1984).

Byelaws are made by the council but do not take effect until confirmed by the Secretary of State (currently the Secretary of State for Housing, Communities and Local Government). At least a month before applying for consent, the intention to do so must be advertised in the local press and copies of the proposed byelaws must be available for inspection by the public without charge during that month or longer period. The council must supply a copy of the proposed byelaws to any person, on payment of a fee not exceeding 10p for every 100 words.

Once the byelaws have been confirmed, they come into force on the day specified by the Secretary of State or, if none is specified, one month after confirmation. Copies must be available for inspection by any person without charge. The council must supply a copy of the byelaws on demand, on payment of no more than 20p per copy.

Penalties for breach of byelaws

A person contravening a byelaw is liable on summary conviction (i.e. in a magistrates’ court) to a fine not exceeding the penalty prescribed by the byelaw or, if there is none, to a fine of £20. For a continuing offence, a fine may be prescribed by the byelaw but, if there is none, £5 per day is payable for every day on which the offence continues after conviction.

New procedure

Part 6 of the Local Government and Public Involvement in Health Act 2007 (sections 129–135) enacted alternative procedures for making and enforcing local authority byelaws in England. Part 6 was brought into force in 2010. The legislative process was completed (so far as it relates to the making of byelaws) in February 2016 with the enactment of the Byelaws (Alternative Procedure) (England) Regulations 2016 (SI 2016/165).

Part 6 also provides for the enforcement of byelaws through fixed penalty notices, as an alternative to enforcement through magistrates' courts. This will bring the enforcement of byelaws onto the same footing as the enforcement of laws against other low-level nuisance activities, and will facilitate a more coordinated approach to the enforcement of such matters, though these provisions have not yet been brought into force.

Part 3 of the 2016 Regulations sets out the procedure for making byelaws within the classes prescribed by Regulation 3 and specified in Schedule 3. The prescribed classes cover the following byelaws:

regulation of public walks and pleasure grounds (Public Health Act 1875);
regulation of open spaces and burial grounds (Open Spaces Act 1906);
regulation of market places (Food Act 1984);
revocation of byelaws relating to the foregoing (section 236B, LGA 1972).

The council must follow Regulation 5 of the 2016 Regulations to carry out an assessment of any byelaw it proposes to make. The purpose of the assessment is to ensure that the council makes a byelaw only after considering the regulatory burden that it might impose. The council must consult those likely to be affected by the byelaw. The assessment must be publicised, including publication on the council’s website (if the council has one).

Once the assessment has been carried out, the council applies to the Secretary of State for Housing, Communities and Local Government for approval. Regulation 6 sets out in detail the information which has to be provided with the application. The Secretary of State must respond within 30 days. He may give leave for the byelaw to be made; he may acknowledge the application and, in effect, take more time to respond fully; or he may refuse the application.

Once the Secretary of State has given leave, the council publishes the proposed byelaw formally and considers any representations it receives. Not later than six months after publication, the council takes a final decision on whether or not to make the byelaw. The byelaw can then be made and its existence publicised.

The council must allow public inspection of the byelaw at all reasonable hours and may levy a reasonable charge if a person wants a copy. The council must send a copy of the byelaw to the district council.

A district council and a London borough council must send a copy of any byelaw relating to land in the parish to the council or, where there is no council, to the chairman of the parish meeting.

Part 4 of the 2016 Regulations sets out a less detailed procedure for revoking a byelaw comprised within a class specified in Schedule 3. This does not require prior approval by the Secretary of State.

In view of the somewhat complicated and time-consuming procedures laid down in the 2016 Regulations, local councils are unlikely to devote significant resources to make byelaws unless they are really necessary.

Model byelaws

Model byelaws have been issued by the Ministry of Housing, Communities and Local Government on pleasure grounds (model byelaw 2), amusement premises (model byelaw 3), pleasure fairs (model byelaw 4), promenades (model byelaw 5), seashore (model byelaw 6), good rule and government (model byelaw 8) and markets (model byelaw 10). Where it is desired to pass a byelaw which departs from a standard model, it is wise to consult the relevant department beforehand.

Wales

The Local Government Byelaws (Wales) Act 2012, in force from 1 April 2015, provides the legislative framework for the making of byelaws in Wales.

A community council is a “legislating authority” within the 2012 Act. Its powers to make byelaws are largely the same as those of English local councils and the procedures to be followed are also similar.

A community council may make byelaws under the enactments specified in Part 1 of Schedule 1 to the 2012 Act without the need for the byelaws to be confirmed by the Welsh Ministers. These relate to:

public walks and pleasure grounds (Public Health Act 1875);
open spaces and burial grounds (Open Spaces Act 1906);
public conveniences (Public Health Act 1936);
mortuaries and post-mortem rooms (Public Health Act 1936);
baths, washhouses, etc. (Public Health Act 1936);
public bathing (Public Health Act 1936);
swimming baths not under local authority control (Public Health Act 1936);
nuisances in market places (Food Act 1984);
parking places (Road Traffic Regulation Act 1984);
the revocation of any of the foregoing byelaws (2012 Act).

Procedure

The council must publish on its website an initial written statement describing the issue which it thinks may be addressed by making a byelaw and must consult with anyone whom it thinks may be affected by or interested in the issue. Once the consultation is concluded, the council must then decide whether or not to make the byelaw and must publish on its website the initial written statement, a summary of the consultation responses, its decision and the reasons for its decision.

Where the council decides to make the byelaw, it must give at least six weeks’ notice on its website and in the local press before the byelaw is made. During that period a copy of the draft byelaw must be published on the council’s website, be deposited at a place in the council’s area and be open for public inspection at all reasonable times without payment. The council must supply a copy to any person who requests it on payment of a reasonable fee or without charge.

After the period of notice has expired, the byelaw is formally made and comes into force on the date specified by the council. Once the byelaw is in force, the council must apply the same publication formalities as apply to the draft byelaw.

Penalties

Contravention of a byelaw is an offence punishable on summary conviction to a maximum fine either fixed by the enactment that confers the power to make the byelaw or, if no sum is fixed, level 2 on the standard scale (£500).

In cases specified in the 2012 Act, the council may issue a fixed penalty notice. The amount of the penalty may be specified by the council, but if it is not the amount is £75. The power to issue a fixed penalty notice applies to byelaws listed above.

Guidance

In accordance with section 18 of the 2012 Act, Welsh Ministers have issued statutory guidance to legislating authorities. Part 5 explains why ministers have not extended the power to issue fixed penalty notices to community councils. The guidance can be viewed on the Welsh Government website.

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Written by Paul Clayden, expert in local council law

As appeared in Clerks & Councils Direct, September 2019