Local government legislation: byelaws
Guidance for councils on making, amending and revoking byelaws.
Applies to England
Introduction
Byelaws are local laws made by a local council under an enabling power contained in a public general act or a local act requiring something to be done – or not done – in a specified area. They are accompanied by some sanction or penalty for their non-observance.
If validly made, byelaws have the force of law within the areas to which they apply. Generally byelaws are overseen by the relevant government department or confirming authority who has policy responsibility for the subject matter.
The Ministry of Housing, Communities and Local Government (MHCLG) have responsibility for byelaws covering pleasure grounds and open spaces and good rule and government. These relate in the main to the peaceful enjoyment of parks and open spaces and the suppression of nuisances.
Other government departments are responsible for byelaws covering their policy areas.
Byelaws are enforced by the local authority through the magistrates’ court and contravening a byelaw can result in a fine upon successful conviction.
Byelaws are considered measures of last resort after a local council has tried to address the local issue the byelaw applies to through other means. A byelaw cannot be made where alternative legislative measures already exist that could be used to address the problem. Byelaws should always be proportionate and reasonable. Where a byelaw is no longer necessary, it should be revoked.
The Byelaws (Alternative Procedure) (England) Regulations 2016
The Byelaws (Alternative Procedure) (England) Regulations 2016 introduce new arrangements for byelaws.
The regulations simplify the procedures for making new byelaws and amending byelaws, including replacing the Secretary of State for Housing, Communities and Local Government’s role in confirming byelaws. This is now a matter for the local council, having taken account of any representations made about the proposed byelaw.
The regulations also give councils powers to revoke byelaws under an entirely local process.
The regulations do not give local authorities powers to create new categories of byelaws.
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Level of scrutiny by MHCLG
The new arrangements transfer the accountability for making byelaws to local councils. Local councils should ensure that a proposed byelaw is proportionate and necessary before making any new byelaw.
Under the new decentralised arrangements, MHCLG will assume information supplied by the local authority in its application for leave to make a byelaw is correct.
The Secretary of State will consider the draft byelaws, report and deregulatory statement provided by the local authority and will, within 30 days, either give leave to make the byelaw, or not give leave to make the byelaw.
The Secretary of State may also choose to defer his decision to allow time for further consideration.
The new arrangements allows the local authority to make only minor modifications to the proposed byelaws after leave has been given to make the byelaws. Councils should therefore ensure care is taken when drafting byelaws.
List of byelaws the new arrangements apply to
The new arrangements for making byelaws apply to all the DLUHC byelaws listed in the table below.
Byelaws which are the policy responsibility and confirmed by other government departments will not be affected by the new arrangements.
| Byelaw | Enactment | Byelaw making authority |
|---|---|---|
| 1. Public walks and pleasure grounds | Public Health Act 1875, s164 | A district council, a parish council and a London borough council |
| 2. Open spaces and burial grounds | Open Spaces Act 1906, s12 | A county council, a district council and a parish council |
| 3. Open spaces and burial grounds | Open Spaces Act 1906, s15 | A county council, a district council and a parish council |
| 4. Seashore | Public Health Acts Amendment Act 1907, s82 | A district council and a London borough council |
| 5. Promenades | Public Health Acts Amendment Act 1907, s83 | A district council and a London borough council |
| 6. Public bathing | Public Health Act 1936, s231 | A district council and a London borough council |
| 7. Pleasure fairs and roller skating rinks | Public Health Act 1961, s75 | A district council and a London borough council |
| 8. Hairdressers and barbers | Public Health Act 1961, s77 | A district council and a London borough council |
| 9. Good rule of government and the suppression of nuisances | Local Government Act 1972, s235 | A district council and a London borough council |
| 10. Market places | Food Act 1984, s60 | A district council, a London borough council and a parish council |
| 11. Revocation of byelaws falling within any of the above entries | Local Government Act 1972, s236B | A county council, a district council, a London borough council and a parish council |
Making a new byelaw
When making a byelaw a local authority should have regard to, and fully comply with, the Byelaws (Alternative Procedure) (England) Regulations 2016, which detail the alternative arrangements for making a byelaw.
Step 1: draft proposed byelaw, assessment and consultation
The local authority determines if there is a need to make a byelaw and if they have the power to make such a byelaw, then consults upon the proposed byelaw. In considering whether or not a byelaw is an appropriate method for dealing with an issue, the council must follow this process.
The decentralised arrangements recognise that authorities are best placed to make the final decision on whether or not byelaws are appropriate in their area, but byelaws should be proportionate and should not have an unnecessary, excessive or disproportionate effect on individuals or businesses.
The local authority must prepare a draft of the proposed byelaw. Model byelaws may be useful in preparing the draft. Local authorities should have regard to the guidance notes accompanying the model byelaws when preparing byelaws.
The local authority must then undertake a regulatory assessment of the proposed byelaw to ensure that the proposed byelaw is proportionate. The regulatory assessment must include at least the following considerations:
- what is the objective of the proposed byelaw?
- could the objective be achieved in any other way, short of a byelaw?
- what will be the impact of the byelaw upon those affected by it?
- will the proposed byelaw increase, or decrease, the regulatory burden imposed upon those affected by it, and can the local authority express this increase or decrease as a financial cost or benefit?
- how does making the proposed byelaw compare with taking no further action?
In carrying out the regulatory assessment, the local authority must consult such persons as it considers may be affected by the proposed byelaw – which may include persons who are not resident in the area of the authority. This is particularly important in relation to byelaws concerning parks and recreation grounds, where those visiting and using public facilities and therefore subject to the byelaws, if made, may not be local residents.
As well as being a requirement of the byelaw making process, thorough consultation with interested parties can result in the creation of a more suitable byelaw that is more resistant to challenge and less likely to be the subject of objections than would otherwise have been the case. Consultation also allows the local authority to gauge support for the proposed byelaw.
The extent of the consultation will depend upon the type of byelaw proposed. Local councils should consult widely about any proposals as well as with the particular groups affected. Local councils should ensure that they consult with any local disability groups to make sure that their opinions are taken into account.
It will be for local councils to determine that they take account of requirements under the Equality Act 2010.
Once the local authority has assessed the proportionality of the proposed byelaw, the local authority must then prepare a statement of this assessment. The local authority must record in the statement of the assessment:
- the conclusions of the local authority about the impact of the proposed byelaw on those affected by it
- the conclusions of the local authority about whether or not the proposed byelaw will result in an increased regulatory burden
- where the local authority considers that the proposed byelaw will result in an increased regulatory burden, the reasons why the local authority considers that increase to be proportionate and necessary.
The local authority must then publish the statement of the assessment on its website, if it has one. It must also publicise the statement of its assessment so that it is brought to the attention of people who live in the local authority’s area and those who may otherwise be affected by the proposed byelaw.
Step 2: submit application for approval
Following consultation and assessment, the local authority must submit their application to the Secretary of State for approval. The Secretary of State must respond within 30 days.
The application should contain the draft proposed byelaw, the deregulatory statement and a report:
- identifying the enactment under which the byelaw is proposed to be made
- confirming that the new, alternative procedure for making the proposed byelaw has been followed
- explaining the purpose of, and need for, the byelaw
- explaining the local authority’s reasons why it considers the proposed byelaw is reasonable, and why the proposed sanction for contravening the byelaw is both necessary and proportionate
- explaining whether or not any other existing enactment, law or legislation already fulfils the purpose of, and need for, the proposed byelaw
- explaining why, if any other existing enactment, law or legislation already fulfils the purpose of, and need for, the proposed byelaw, the local authority still considers there is a need for the proposed byelaw
- providing assurance that if it is the case that the local authority considers that no other existing enactment, law or legislation already fulfils the purpose of, and need for, the proposed byelaw, the proposed byelaw does not conflict with any existing enactments
- showing whether the local authority has revoked or is revoking a byelaw in relation to this application to make a new byelaw
- explaining whether the local authority has used a model byelaw to help draft the proposed byelaw and if so, which one
- identifying, by using a map if necessary, the area to which the byelaw applies
- describing the result of the consultation
- summarising any objections made to the proposed byelaw during the consultation exercise and the local authority’s response to those objections; the authority should also include with the report copies of all correspondence dealing with the objections
The applications should be sent to:
Byelaws Team
Ministry of Housing, Communities and Local Government
2nd Floor North East, Fry Building
2 Marsham Street
London
SW1P 4DF
Or emailed to byelaws@communities.gov.uk.
Step 3: Secretary of State’s decision
The Secretary of State may give leave for the council to make the proposed byelaw, send an acknowledgment and give a substantive response at a later date, or refuse to give leave to the council to make the byelaw. The Secretary of State may request minor technical and formatting changes when giving leave to make the byelaw.
This ends the Secretary of State’s, and DLUHC’s, involvement with the byelaw making process.
Step 4: advertise and consult on the proposed byelaw
If the Secretary of State gives leave for the proposed byelaw to be progressed, a local authority must give notice of the proposed byelaw in one or more local newspapers circulating in the area to which the byelaw applies, on its website (if it has one) and in such other manner as it sees fit.
The notice should identify the area to which the proposed byelaw will apply, give a summary of its intended effect, and specify where the proposed byelaw along with the local authority’s assessment statement and the local authority’s report on the proposed byelaw may be inspected.
The notice must state the consultation period, of not less than 28 days, within which the public may inspect the draft byelaws and also publish an address to which representations on the byelaws can be made within this period.
The authority is free to state a longer consultation period, as byelaw proposals vary, some being more complex than others. The notice must also state the address, and if necessary the email address, to which members of the public may send representations about the proposed byelaw.
Members of the public have the right to obtain copies of the proposed byelaws and the report, for a reasonable charge. Suggested wording of the newspaper notice is:
[Name of Council]
Notice is hereby given that [Name of Council] intends to make new byelaws [insert here a description of the byelaws, their effect and their geographical extent].
Copies of the proposed byelaws will be kept at the offices of the Council at [address or addresses] and will be open to inspection without payment on any weekday during usual business hours for 28 days from the publication of this notice.
The byelaw may also be viewed at [website address].
Written representations about the byelaws, including any objections, should be sent to [address] by [closing date].
Signed [Name] Proper Officer of the Council
Date
Step 5: consideration of representations
The local authority must consider all representations received, including objections, before making any decision about whether or not to make the proposed byelaw.
It is for the local authority to determine how to proceed with any representations received.
Step 6: deciding to make the byelaw
Once the consultation period has expired, the local authority then has 6 months to decide whether or not to make the byelaws (with or without minor modification).
This 6 month period allows an adequate time for representations to be considered, for a council meeting to be arranged and a decision about whether to make the byelaws to be taken.
A minor modification to a proposed byelaw is a modification that does not bring any new activity into the scope of the proposed byelaw or increase the scope of any prohibition or restriction on an activity.
Where a local authority decides that a more than minor modification is required to the byelaw, then that local authority is making a major modification and so essentially creating a new byelaw.
Accordingly, if a local authority decides that a major modification is required to the byelaw it must recommence the byelaw making process from the beginning, starting again at step 1.
Step 7: making the byelaw
If the local council has formally resolved to make the proposed byelaw, they should make the byelaw under the common seal of the council, which should be placed after any schedule or plan included with the byelaw. The byelaw should also be signed and dated.
Where the byelaw is made by a parish council that does not have a seal, the byelaw should be made under the hands and seals of 2 members of the council. If members of a parish council do not possess personal seals, the imprint of a signet ring, coin or thumb will suffice. Sealing wax and parchment seals may be obtained from stationers.
In this case, a suitable subscription to the byelaw would be:
Given under our hands [date]
Signed [Name] (Seal)
Signed [Name] (Seal)
Members of [Name of Parish Council]
Step 8: publicity after making the byelaw
As byelaws are local enactments that may result in a prosecution in the courts and a fine, publicising the byelaw is an integral part of ensuring any new byelaw that will soon come into force is brought to the attention of the wider local community.
The local authority must publicise the fact that a new byelaw has been made at least 7 days before the day on which the byelaw comes into force. Signs should be placed near the area where the byelaw applies (except where this is not practicable, for example because the byelaw has effect throughout the authority’s whole area) so that, as far as possible, people are made aware of the byelaw.
The local authority must also publicise the new byelaw on its website, if it has one, and publicise the new byelaw in such other manner as it sees fit.
Step 9: retaining copies of the byelaw
After making the byelaw, the authority must send copies of the byelaw to other councils.
A county council must send copies to district councils (if any) in their area and a district council must send copies to the county council (if any) for their area. However, the district council need only send copies to a parish council or chairman of a parish meeting in their district if the byelaws apply to the parish area.
A London borough council shall also send a copy of its byelaw to the proper officer of every parish council where the byelaw applies.
Step 10: the byelaws come into force
Byelaws come into force 30 days after the date they are made.
This gives the local authority time to make the public aware that a new byelaw will be coming into force, and to erect any appropriate signage in the area where the proposed byelaws will apply to bring about compliant behaviour.
Amending a byelaw
The process for amending a byelaw is the same for making a new byelaw.
The local council will need to consider the need for the amendment, consult, undertake a regulatory assessment and produce a report before seeking the approval of the Secretary of State to make the amendment. Once approval is given, the local authority must undertake formal consultation and consider any representations before deciding whether or not to make the amending byelaw or whether to make it with minor modification.
Before amending a byelaw, a local authority should consider whether the byelaw needs to be retained at all, even in its amended state, as it may now no longer be required. For example, the issue the byelaw addressed may now be addressed through national legislation.
If the byelaw does need amending, then the local authority should consider whether any set of byelaws that the particular byelaw appears in needs to be replaced in its entirety by byelaws based on the current version of the relevant model byelaw.
A byelaw is amended under the same power that enabled the making of that byelaw. It is for the local council to determine the exact form the amendment will take, although in most cases it is envisaged that an amendment will omit part of the existing byelaw, or for example add a new geographical area to a byelaw’s schedule, so applying it to a new part of a local authority’s area.
Revoking a byelaw
Local councils that wish to revoke a byelaw for which DLUHC has policy responsibility – and do not wish to have new amending byelaws made – can do so without any DLUHC involvement.
The revocation byelaw should not be used where the local council is replacing an entire byelaw set with the current version of the relevant model byelaws. This is because any new set will contain a model revocation byelaw that should be used instead.
Step 1: assessment and consultation
The local council determines if there is a need to revoke the byelaw and if they have the power to do so, and by which mechanism, then consults upon the proposed revocation. In considering whether or not to revoke a byelaw, the council must follow this process.
The local authority must prepare a draft of the proposed revoking byelaw. Councils may wish to use the model revocation byelaw. They must then undertake a regulatory assessment of the proposed revocation. The regulatory assessment must include at least the following considerations:
- what is the objective of revoking the byelaw?
- could the objective be achieved in any other way, short of revoking the byelaw?
- what will be the impact of revoking the byelaw upon those affected by this decision?
- how does revoking the byelaw compare with taking no action?
The local authority must then publish a notice of its proposal to revoke the byelaw on its website, if it has one, in a local newspaper and in any case publicise the notice in any other manner as it sees fit.
The notice must state the consultation period, of not less than 28 days, within which the public may inspect the draft byelaws and also publish an address to which representations on the byelaws can be made within this period.
The local authority must consider all representations received, including objections, before making any decision about whether or not to revoke the byelaw.
Step 2: deciding to revoke the byelaw
Once the consultation period has expired, the local council then has 6 months to decide whether or not to revoke the byelaw (with or without minor modification).
A minor modification to a proposed revoking of a byelaw is a modification that does not bring any new activity into the scope of the proposed revoking byelaw or increase the scope of any prohibition or restriction on an activity.
If a local council decides that a more than minor modification is required to the byelaw, then that local council is making a major modification and so essentially revoking more than was originally intended and consulted upon.
Accordingly, if a local council decides that a major modification is required to the byelaw it must recommence the byelaw revoking process from the beginning, starting again at step 1.
Step 3: revoking the byelaw
Where the local council has formally resolved to revoke the byelaw, they should make the revoking byelaw under the common seal of the council, which should be placed after any schedule or plan included with the revoking byelaw. The revoking byelaw should also be signed and dated.
Where the revoking byelaw is made by a parish council that does not have a seal, the byelaw should be made under the hands and seals of 2 members of the council. If members of a parish council do not possess personal seals, the imprint of a signet ring, coin or thumb will suffice. Sealing wax and parchment seals may be obtained from stationers.
In this case, a suitable subscription to the byelaw would be:
Given under our hands [date]
Signed [Name] (Seal)
Signed [Name] (Seal)
Members of [Name of Parish Council]
Step 4: publicity after revoking the byelaw
The local authority must publicise the fact that a byelaw has been revoked. The authority must publicise on its website, if it has one, a notice that the byelaw has been revoked and also publicise that the byelaw has been revoked in such other manner as it sees fit.
The local authority must also make a copy of the revoking byelaw available to anyone who wishes to have a copy, at a reasonable charge.
The local authority must also remove any signs relating to the now revoked byelaw.
Model byelaws
Model byelaws provide an example of what a byelaw should look like. Local councils should feel free to use the model byelaws and adapt them for their own needs.
Local councils should not look to adopt wholesale the model byelaws, but instead should delete any byelaws that they do not need or which do not apply to them, so adapting the model byelaw to their particular circumstances.
For example, a local council making a set of byelaws for a local park that does not have a children’s playground would not include the model byelaws on children’s playgrounds or children’s play apparatus in that byelaw set.
Variations to model byelaws
While the model byelaws are tried and tested and designed to cover all eventualities DLUHC recognises that in some cases there may be unique local circumstances meriting a variation to the model byelaw.
Where a local council does retain a model byelaw, any changes to the wording should be kept to a minimum. The local council is responsible for providing evidence for the need for each variation which then informs their deregulatory statement that they then publish on their website and submit to the Secretary of State.
Model byelaws guidance
Local councils should consult the individual guidance notes for model byelaws when using the model byelaws.
Copies of byelaws
DLUHC does not hold a central record of confirmed byelaws.
Under the Local Government Act 1972 governing the making of byelaws, it is the responsibility of local councils to keep a copy of their byelaws. Members of the public who wish to view byelaws operating in their local area should contact their local council in the first instance. Local libraries may also have copies.
Under the new arrangements local councils are required to keep a copy of byelaws made under the new arrangements, and make them available to the public. They may charge for copies.
The proper officer at the local council is the responsible officer for endorsing printed copies of byelaws as a true copy. Under section 238 of the Local Government Act 1972 local councils who can’t find the original byelaws can get a printed copy of the byelaw endorsed by a proper officer of the council, with a certificate identifying the byelaw as a true copy.
Further information
If you have any queries on the new arrangements please contact the Byelaws Team: byelaws@communities.gov.uk.
Updates to this page
Last updated 23 October 2016 + show all updates
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Updated guidance following the introduction of new byelaws regulations.
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First published.