PAPER C
Purpose : For Decision
Committee:
FULL COUNCIL
Date : 16 MARCH 2005
Title: ISLAND WIDE - SEASIDE PLEASUREBOAT BYELAW
PORTFOLIO HOLDER - TOURISM & LEISURE
SUMMARY/PURPOSE
1.
Members are asked to adopt the byelaw
made under s76 Public Health Act 1976 for the prevention of danger, obstruction
or annoyance to persons bathing in the sea or using the seashore. This replaces and extends the previous South Wight Borough
Council Byelaw to cover the whole Island.
BACKGROUND
2.
In March 2000 the
Council’s Leisure Services Committee agreed to introduce an Island-wide Seaside
Pleasure Boat Byelaw. This was in
response to the increasing use and especially misuse of jet skis and other such
craft on the Island. Such growth in
water based activities having led to an increase in complaints and concerns to
the Council in respect of the safety to the public in the water.
3.
The intention of the
Committee was to introduce a byelaw to
be used as a tool by the Council and the Police alike, to reduce the danger to
and annoyance of bathers and users of the seashore caused by the misuse of
pleasure boats. Since the resolution of
the Committee, officers have undertaken the necessary consultation and planning
to enable such a byelaw to be produced and are now in a position to recommend
its adoption by the Council.
4.
Members may be aware that
a similar byelaw is already in existence in the former South Wight area and
this has formed the basis of the new Island-wide byelaw. The key elements of the byelaw are attached
in annex 1.
5.
On 21 January 2004 the
Full Council adopted a similar byelaw which was duly advertised in accordance
with the provisions of the Local Government Act 1972. These provisions require that post adoption by the Isle of Wight
Council the Byelaw be advertised for a period of one month then sent to the
Secretary of State for confirmation if no sustainable objection is received.
6.
The Queens Harbour Master
of Portsmouth objected to the proposed byelaw on 13 February 2004. The previous post holder has agreed to the
proposal. Their principle objection was
in respect of the proposed byelaw speed limits applying within the Harbour of
Portsmouth. The Council is not at liberty to
argue the matter in light of a Statutory Undertakers
objections and therefore the byelaw was regrettably withdrawn.
7.
Following consultation
with QHM an agreed amended byelaw, as attached, has been drafted and is
therefore now before Council for adoption.
STRATEGIC CONTEXT
8.
The introduction of this byelaw would meet with the
objectives contained within the Community Development service plan and would
also meet the objective of the Esplanade &
Beaches Best Value Review improvement plan item 5.
CONSULTATION
9.
Extensive consultation has been undertaken both through the
Town and Parish Councils and numerous sailing clubs seeking their interest and
support.
Listed below are a summary of the objections and concerns raised and how
the byelaw meets these concerns are shown below:
a. The byelaw should
exclude sailing or wind powered craft and only include high speed powered boats
and jets skis.
This byelaw is made
under Section 76 of the Public Health Act 1961, and having sought clarification
from the MCA to replace the word Pleasure craft with motor boat. The Council
were advised that this ultra vires the enabling act and therefore they would
not approve such a byelaw.
b.
How is the byelaw to be enforced and
the limits defined
Whilst it is appreciated that we do not have the resources to fully
police this activity, we would rely on the general public, IWC Inspectors and
the Police to identify any offenders in breach of the byelaw and to assist in
prosecution if necessary.
This does
however mean that the byelaw areas need to be defined. At Sandown Bay there is
a Water Safety Zoning operation in place, whereby the byelaw limits are
identified by marker buoys and launching lanes for Pleasure boats. This is
suggested as the way forward for the
remainder
of the Island.
c.
Pleasure craft needs to be defined
Under
Section 76 of the Act there are no provisions allowing different byelaws to be made for different classes of
pleasure boat. Generally there is no definition of “Pleasure Boat” and it is
construed to include pleasure yachts.
d. Automatic exemption to yacht and
dinghy racing organised and/or run by clubs or associations affiliated to
either SCRA or to RYA.
Byelaw No.
3(2)ii) allows exemption if an authorised event has the
boundary of
the event marked using marker buoys as
described.
FINANCIAL/BUDGET IMPLICATIONS
10.
A capital sum of £32,000 has been previously allocated for the
purchase of buoys to demark the 200m controlled zone around the former Medina
Borough Council area. Such buoys
already being in existence in the former South Wight area.
11.
An additional revenue budget of £12,000 p.a. is required to
set out the buoys for the season, bring them in and store them for the winter
period.
LEGAL
IMPLICATIONS
12.
It is a matter for the Local Authority to decide if the byelaw
is necessary and appropriate for its area in response to a recognised nuisance.
13. The Local Authority is under
a duty to consult with interested parties and address their concerns as far as
possible.
14. If Members are minded to
adopt the byelaw then this intention will be forwarded to the Maritime
Coastguard Agency, (MCA), who are responsible for confirming the byelaw and
advertisements will be placed in the County Press and London Gazette. After the
expiry of one month, the Council can then formally apply for confirmation. The
MCA will then either confirm the byelaw or if objections are received, seek
comment from the Local Authority. The MCA should not normally take issue with
the precise areas to which the byelaw apply. As the Council proposes to adopt a
model byelaw, the MCA should not take issue either with the reasonableness of
the byelaw or proportionality of the criminal sanctions. Once confirmed the
byelaw will form enforceable local legislation normally within one month.
15. Members are respectively
informed that the previous byelaw made by the South Wight Borough Council is
not enforceable until the original sealed byelaw or true certified copy is
located. It is thought to have been lost in the transfer of functions in 1995
or before. However, this byelaw is also of limited application to the Local
Authority’s coastline in that it only
applies to the former South Wight Borough Council area in part.
16. The Byelaw would make this
nuisance an offence liable on summary conviction to a fine not exceeding level
3 on the standard scale, (currently a fine of up to £1,000).
17. Enforcement
responsibilities would rest with the Isle of Wight Council and the Hampshire
and Isle of Wight Police.
18. In coming to a resolution
to adopt the draft Byelaw, consideration should be given to the rights set out
in article 8 of the European Convention on Human Rights and the interference
this Byelaw will have on those persons who wish to use the seashore subject of
this Byelaw. This Byelaw will restrict their freedom to helm their craft
unrestricted but this interference is considered proportionate to the Council’s
legitimate aim of protecting public health.
OPTIONS
The
following options are available
(a)
To resolve to formally make the draft Seaside Pleasure Boat
Byelaw and authorise the proper Officer to seal (properly attested) and date
the Byelaw on behalf of the Council.
(b)
To give consideration to funding the revenue costs of
providing water safety buoys Island-wide as part of the 2005/06 budget process.
(c)
To also further resolve that the Byelaw be advertised in
accordance with Section 236 of The Local Government Act 1972, and then after
the period of deposit sent to the Secretary of State for possible confirmation.
(d)
Not to approve the byelaw and continue with the
existing South Wight Borough Council byelaw and accepting that the current regulations may not be enforceable owing to the
absence of a signed copy of the byelaw.
EVALUATION/RISK MANAGEMENT
19. The
Council is responsible for and undertakes the management of 34 miles of
coastline and beaches. As part of these
responsibilities it provides in excess of 150 pieces of life saving
equipment. The coastline and equipment
are inspected on a regular basis to ensure high levels of public safety are
maintained. The creation of this byelaw
is therefore consistent with the Council’s overall approach to the management
of health and safety along the coastline.
20. The provision of marker buoys is not
essential for the creation of this byelaw but would be of immense benefit in its
enforcement. More especially in light
of the fact that the Council’s ability to enforce it will be generally reliant
on the involvement of others such as the Police. The Council’s own inspection resources for the coastal areas
being particularly limited.
21. Without a byelaw to regulate the use of
pleasure boats, then the Council may be liable to litigation from persons
injured by them. More especially as the
Council has secured and publicises seaside and blue flag awards for its beaches
which make reference to their safety.
Whilst the Council does have a duty of care in this regard, however, so
too do the public users of its beaches.
22. If Members choose not to approve the
byelaw, the Council does not have any way of restricting the use and the speed
of pleasure craft and the conflict in use will only increase. This would be a
detriment to Tourism on the Island.
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RECOMMENDATIONS
To approve options:
(a) To resolve
to formally make the draft Seaside Pleasure Boat Byelaw and authorise the
proper Officer to seal (properly attested) and date the Byelaw on behalf of
the Council.
(b) To give
consideration to funding the revenue costs of providing water safety buoys
Island-wide as part of the 2005/06 budget process
(c) To also
further resolve that the Byelaw be advertised in accordance with Section 236
of The Local Government Act 1972, and then after the period of deposit sent
to the Secretary of State for possible confirmation.
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BACKGROUND PAPERS
Leisure Services Committee Report of 2nd March 2000
Contact Point : Steve
Matthews 823078
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Derek Rowell
Strategic Director
Environment Services
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John Fleming
Portfolio Holder
Leisure & Tourism
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Annex 1
Isle of Wight Council
Seaside Pleasure Boats
Byelaws
made by the Council of the Isle of Wight under section 76 of the Public Health
Act 1961 for the prevention of danger, obstruction or annoyance to persons
bathing in the sea or using the seashore.
Interpretation
1. In these byelaws, “navigator” means the
person who, whether as owner or otherwise, has the charge or control of a
pleasure boat or being present, is entitled to give orders to the person having
charge or control.
Extent
2. These byelaws shall apply to the areas
situated within the County of the Isle of Wight to the extent as specified in
Part 1 and Part 2 of the Schedule to these byelaws and are shown as shaded
areas on the maps attached as Part 3 of the Schedule.
Operation of pleasure boats
3. (1) Subject to paragraph (2) no person, being
the navigator of a pleasure boat shall during the months of April to October
inclusive cause or permit such vessel to exceed a speed of 8 nautical miles per
hour through the water.
(2)
Paragraph (1) shall not
apply in relation to either of the following areas:
i)
an area which is for
the time being marked by the Council of the Isle of Wight as a buoyed lane
leading seawards from the seashore, and
ii)
an area which is
seaward of a line of buoys for the time being placed or authorised by that
Council to mark a boundary of an area adjacent to the seashore.
4. No person, being the navigator of a
pleasure boat, shall cause or permit such vessel to be driven or sailed in a
dangerous manner or without due care and attention or without reasonable
consideration for other persons.
5 No person, being the navigator of a
pleasure boat propelled by an internal combustion engine, shall use the
pleasure boat unless the engine is fitted with a silencer suitable and
sufficient for reducing as far as may be reasonable the noise caused by the
escape of the exhaust gases from the engine.
Penalty
6. Any person offending against any of
these byelaws shall be liable on summary conviction to a fine not exceeding
level 3 on the standard scale.
Saving of Crown and Other Rights
7. Nothing contained in any of the foregoing
byelaws shall be deemed to be or shall operate as a grant by or on behalf of
the Crown as owner of any part of the foreshore and seabed below high water
mark of any estate or interest in or right over any such part foreshore and
seabed, nor shall anything contained in or done under any of the provisions of
the foregoing byelaws in any respect prejudice or injuriously affect the rights
and interests of the Crown in such foreshore and seabed, or prevent the
exercise thereon of any public rights or prejudice or injuriously affect any
right, power or privilege legally exercisable in, over and in respect of the
foreshore and seabed.
Revocation
8. The byelaws relating to the seaside
pleasure boats which were made by the Borough of South Wight on 6th day of January
1976 and were confirmed by the Secretary of State on 20th day of May 1976 are
hereby revoked.
Schedule
Part 1
Areas
in which byelaws 1 to 8 shall apply:
a) The
seashore between the easternmost point of Gurnard Green, Gurnard to Hampstead
Ledge, Hampstead, and the
waters therefrom for a distance seaward of 200m shown as a shaded area on the
map marked ‘A’ in Part 3 of the Schedule.
b) The
seashore Between Needles Point and the easternmost point of Fort Victoria and
the waters therefrom for a distance seaward of 200m shown as a shaded area on
the map marked ‘B’ in Part 3 of the Schedule.
c) The
area comprising the seashore around Freshwater Bay, and the waters in that bay,
bounded to the south by an imaginary line extending from Stag Rock to the
southernmost point of Fort Redoubt shown as a shaded area on the map marked ‘C’
in Part 3 of the Schedule.
d) The
seashore between the westernmost point of Orchard Bay House, Orchard Bay,
Ventnor and Dunnose Ledge, Bonchurch and the waters therefrom for a distance
seaward of 200m shown as a shaded area on the map marked ‘D’ in Part 3
of the Schedule.
e1) The
seashore between the southernmost point of Horse Ledge, Shanklin and a point in
Sandown Bay Latitude 50°
38’12” North longitude 01°10’
03” West and the waters therefrom for a distance seaward of 200m shown as a
shaded area on the map marked ‘E1’ in Part 3 of the Schedule.
Part 2
Areas
in which byelaws 1,2 and 4 to 8 shall apply:
e2) The
seashore between a point in Sandown Bay Latitude 50° 38’12” North longitude 01°10’ 03” West and 570m east-north-east of Yaverland
Slipway, Yaverland Car Park, Yaverland and the waters therefrom for a distance
seaward of 200m shown as a shaded area on the map marked ‘E2’ in Part 3
of the Schedule.
f) The seashore between Shag Rock, Culver to the
northwesternmost point of Beach Cottages, Bembridge Point, Bembridge and the
waters therefrom for a distance seaward of 200m shown as a shaded area on the
map marked ‘F’ in Part 3 of the Schedule.
g) The
shaded area on the map marked ‘G’ in Part 3 of the Schedule comprising;
1)
the
waters to the east of St Helens Duver, bounded
by an imaginary line extending 265m eastwards of the southernmost point
of the Old Church ruins, to a point on the sea wall 600m southwards of the same
southernmost point of the Old Church ruins, and
2)
the
seashore adjacent to those waters.
h)
The
shaded area on the map marked ‘H’ in Part 3 of the Schedule comprising;
1)
the
waters bounded by an imaginary line extending 265m east of the southernmost
point of the Old Church ruins at the Duver, St Helens, to an imaginary line
extending 600m from Priory Point at a bearing of North 048 degrees (True), and
2)
the
seashore adjacent to those waters.
i)
The shaded area on the
map marked ‘I’ in Part 3 of the Schedule comprising;
1)
the waters bounded by an imaginary line
extending 600m from Priory Point at a bearing of North 048 degrees (True), to
an imaginary line extending seaward for a distance of 200m from the
northeasternmost point of Puckpool Battery, Puckpool, Ryde, and
2)
the seashore adjacent
to those waters
j)
The
shaded area on the map marked ‘J’ in Part 3 of the Schedule comprising;
1)
the
waters bounded to the north by an imaginary line which begins at a point 200m
north of the northeastern most point of Puckpool Battery, Puckpool, Ryde and
extends west to the northeastern most point of Ryde Pier, Ryde, and
2)
the
seashore adjacent to those waters
k)
The shaded area on the
map marked ‘K’ in Part 3 of the Schedule comprising;
1)
the waters bounded to
the north by an imaginary line which begins 200m north of the northwesternmost
point of Prince Consort Hotel, Ryde and
extends east to the northwesternmost point of Ryde Pier, Ryde, and
2)
the seashore adjacent
to those waters
All stated distances seaward
shall be treated as being measured from the mean low water mark. All stated distances are in metres.
Schedule
Part 3
Maps of areas specified in part 1
