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.

 

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.

BACKGROUND PAPERS

 

Leisure Services Committee Report of 2nd March 2000

 

Contact Point :           Steve Matthews 823078

 

 

Derek Rowell

Strategic Director

Environment Services

 

John Fleming

Portfolio Holder

Leisure & Tourism

 


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

 

 

 


 

Dated the       day of              2005

 

The Common Seal of The Isle of

Wight Council was hereunto affixed

in pursuance of a resolution of a meeting

of the Full Council duly convened and held:-

 

Authorised signature