Byelaws in UK Law

Whilst I have accepted that on their proper construction the byelaws impliedly permitted the public to access the harbour and engage in various sports and activities, I do not accept that they had the effect of conferring any right on the public to do those things.

At what point does a byelaw become invalid for uncertainty? 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).

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.

This is particularly so where the owner is a public authority which holds the land for the general public good such as the respondent in this case.

Mr Kadri argued that the contrast between those two sections demonstrated that the powers under section 23(1) were limited as he said them to be. It is however clear, in my judgement, as my Lord has already said, that section 7(1) extends the powers of a housing authority beyond those in section 23(1), or at least avoids any unclarity in the important area of making byelaws.

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. I should have thought the right thing would have been to take him before the Magistrates under the byelaws, when some small fine might have been inflicted. 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.

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.