SUMMARY/PURPOSE
1.
To adopt a 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 then 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 that 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.
STRATEGIC CONTEXT
5.
The introduction of this byelaw would meet with the objectives
contained within the Esplanade & Beaches Best Value Review improvement plan (item 5).
CONSULTATION
6.
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 Maritime Coastguard Agency (“MCA”) to replace the
words pleasure craft with motor boat and the Council were advised that this was
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 the Council do not have
the resources to fully police this activity, the general public, IWC Inspectors
and the Police will be able 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 allows exemption if an event is organised
by the local authority or permission has been obtained.
FINANCIAL/BUDGET IMPLICATIONS
7. 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.
LEGAL IMPLICATIONS
8. It is a matter, under s76 Public Health Act 1976, for the Local Authority to decide if the byelaw is necessary and appropriate for its area in response to a recognised nuisance.
9. The Local Authority is under a duty to consult with interested parties and address their concerns as far as possible. The process for advertising and confirming the Byelaw is set out in s236 Local Government Act 1972.
10.
If Members are minded to adopt
the byelaw then this intention will be forwarded to the 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.
11.
If Members choose to accept
this new byelaw, then the existing byelaw for the former South Wight area would
be revoked.
12.
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).
13.
Enforcement responsibilities
would rest with authorised Council Officers and the Hampshire and Isle of Wight
Police.
14.
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 and the private lives of bathers and
other foreshore users.
OPTIONS
15. 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 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.
(c)
Not to approve the byelaw and continue with the
existing South Wight Borough Council byelaw and accepting that enforcement will be, at best, inconsistent across the
Island.
EVALUATION/RISK MANAGEMENT
16. 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.
17. 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.
18. 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.
19. 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, and to the safety and amenity of bathers and other foreshore users.
|
RECOMMENDATIONS To approve options (a) and (b) |
BACKGROUND PAPERS
Leisure Services Committee Report of 2nd
March 2000
Analysis of consultation
Contact Point : John Metcalfe 823825
|
DAVID PETTITT Strategic
Director
Education and Community
Development |
JOHN FLEMING Portfolio Holder for 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 that are
specified in Part 1 of the Schedule to these byelaws and are shown as shaded
areas on the maps attached as Part 2 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 period between 0900 and 1800 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.
b) The seashore Between Needles Point and
the easternmost point of Fort Victoria and the waters therefrom for a distance
seaward of 200m.
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.
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.
e)
The seashore between the southernmost point of Horse Ledge, Shanklin
and 570m east-north-east of Yaverland Slipway, Yaverland Car Park, Yaverland
and the waters therefrom for a distance seaward of 200m.
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.
g) The
area 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
area 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 area 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 area 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 area comprising;
1)
the waters bounded to the north by an imaginary line which begins 200m
north of the northeasternmost 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 2
Maps of areas specified in
part 1 (to be inserted)
Dated
the day of 2003
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