Byelaws in UK Law

If, for example, the harbour authority had fenced off some part of the harbour, thereby preventing access to it, I do not think that a claim could have been maintained against the authority by a member of the public on the basis that the fencing off was in breach of rights conferred on him by the byelaws.

Better, surely, as with the Fawcett test, to treat the instrument as valid unless so uncertain in its language as to have no ascertainable meaning, or so unclear in its effect as to be incapable of certain application in any case (often on analysis essentially the same thing —see for example Alderson). Being a criminal provision, it will be wherever reasonably possible construed —or, as the case may be, applied -to avoid penalty.

It seems to me one thing to accept, as readily I do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have that conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constables' duty into what must later be found actionably tortious conduct.

The authorities show that a trespasser will only be able to trump the rights of an owner or property by invoking article 8 in an exceptional case: see Manchester City Council v Pinnock, [2010] UKSC 45, [2011] 2 AC 6, and London Borough of Hounslow v Powell [2011] UKSC 8, [2011] 2 AC 186 and the summary by Etherton LJ, as he then was, in Thurrock BC v West [2012] EWCA Civ. 1435 at [22] – [31].

The making of or power to make byelaws in respect of land that is not currently being used for housing purposes, and which may indeed be well away from the area of the local authority, does seem to me to be an extension of the power in section 23(1), and one that therefore shows that those who drafted the Act of 1975 cannot be assumed to have taken the view of the reach of section 23(1) that Mr Kadri urges.

Now, there are old cases which show that the Court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion. That is a far more serious penalty than anything the Magistrates could inflict. He is a man of good character, and ought not to be penalised thus. On that ground alone, apart from the others, the decision of the Barnsley Council cannot stand.

The County Council was not in my view barred from registering the land. The Inspector considered the evidence of actual recreational use and of use of the promenade to access the beach. There was nothing in the evidence of the use of the promenade to contradict her conclusion about use of the beach, for example by appropriate signs, occasional fencing off, communicated byelaws, or access from the sea for most users.