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Briefing 5: Marine Leisure and Recreation

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Briefing 5: Marine Leisure and Recreation Marine leisure and recreation Coastal recreation has undergone an unprecedented period of change in recent years, with increasing numbers of people taking up water-borne activities. The attraction of the coast for recreation may be attributed to its scenic quality, its wilderness appeal, the availability of space and the relative lack of control and regulation compared to some inland waterwaysi. Since the opportunity for coastal recreation is largely determined by the physical nature of the resource base, the majority of management approaches have been taken at the local level. This is evident in attempts to ‘control’ recreational activities for nature conservation purposes and to resolve conflicts between different user groups. A number of statutory and non-statutory approaches have been employed: zoning, speed controls, access allocation, facility provision, development controls, pricing mechanism, permits, equipment and quota controls, and codes of behaviourii. Where voluntary action or self- regulation is not practicable, or has proved ineffective at site level, byelaws have been widely applied to manage recreational impacts on the coast. There is little, if any, guiding primary legislation, other than that which applies to the protection of public health and access to the countryside. For example, at the European level the Bathing Water Directive (BWD) is concerned with public health protection from faecal pollution of bathing waters, and this has been transposed in England and Wales by the Water Resources Act 1991, the Bathing Waters (Classification) Regulations 1991 and the associated directions and notices. Byelaw-making powers are also available to local authorities under the Public Health Acts and the Countryside Act 1968. There are also Merchant Shipping Regulations relating to the safety of vessels used commercially for sport or pleasure. Regulations associated with the provision of infrastructure and supporting facilities for coastal recreation (e.g. marina development) are covered by the Briefing on development legislation. ACCESS AND PUBLIC AND PRIVATE RIGHTS SAFETY AT SEA Under Common Law, a public right to navigation exists The operation of small commercial vessels is currently on all tidal waters (although not necessarily a right to land dealt with under the Merchant Shipping (Vessels in or launch a boat). This includes a right to pass and re-pass Commercial Use for Sport or Pleasure) Regulations for any reasonable purpose including recreation, and the 1998vi and the Merchant Shipping (Vessels in owner of the foreshore must not interfere with this right. Commercial Use for Sport or Pleasure) (Amendment) The public also has ancillary rights, such as anchoring, Regulationsvii, which give statutory force to four Codes that are necessary for navigation. A private right of an of Practice for small (up to 24m) vessels (of which the owner of the foreshore or seabed to control and charge for Red Code of Practice for the Safety of Small Vessels in the laying of fixed moorings will be lost if it is Commercial Use for Sport or Pleasure Operating from a inconsistent with the statutory power of a port authority to Nominated Departure Point is the most relevant to regulate the mooring of vessels in the same placeiii. recreation). These Regulations are made under the Merchant Shipping Act 1995. It is proposed that the The public also has a general right to fish in tidal waters. Merchant Shipping (Small Commercial Vessels and Pilot This right usually includes the right to collect shellfish Boats) Regulations 2004 will replace SI 2000/482 and from the exposed foreshore, provided there is a right of will amend SI 1998/2771. It is intended to update the access. The public right to fish may be regulated by safety and operational requirements of the existing byelaw, but not extinguished. An exception is when this Codes in the Small Commercial Vessel and Pilot Boat right has been severed from the public fishery by a Code (SCV Code), which will be published as a Several Order, which confers the right of fishery to one Merchant Shipping Notice. body for the purpose of developing the fisheryiv. The public right to collect bait worms is ancillary to the Also of relevance is Chapter V of the International public right to fish, but is limited to personal use only. Convention for the Safety of Life at Sea (SOLAS), This activity is not directly regulated by present which applies to small privately owned pleasure craft, legislation, although it may be regulated indirectly by a and is referenced in the Merchant Shipping (Safety of variety of local authority, public health, nature Navigation) Regulations 2002. conservation, fisheries and harbour authority byelaws. Box 1 Planning for coastal recreation There are no other general public rights over the foreshore. Development plan policies for development of marina and other Nevertheless, the public may pass across it if there is a coastal recreation facilities are outlined in the Assembly’s Planning lawfully established right of way over the foreshore. Policy Wales (2002) and Technical Advice Note (TAN) 14 on Coastal Planning (Briefing 1), which sates that consideration should be given to the capacity of the local environment, both on land and Rights of Way off-shore, to accommodate water-based recreation. It further states Parts I and II of the Countryside and Rights of Way that account should be taken of potential risks from pollution at sea as well as the impacts of associated onshore development. (CRoW) Act 2000 revise existing procedures for access Overall TAN 14 underlines the importance of public access to the to open country and public rights of way. Under the Act, coast, unless this is damaging to nature conservation or a person is entitled to enter and remain on any access incompatible with adjoining land uses. Further planning guidance is land for the purposes of open-air recreation, provided provided in TAN 16 on Sport and Recreation, which also draws attention to the need to consider the relationship between that the general restrictions on this right are observed. recreational use of land and conservation interests. The foreshore and seabed do not fall within the definition of access land. However, there are provisions to enable the Welsh Assembly Government (WAG) (or BATHING WATER QUALITY AND PUBLIC Secretary of State) to create an Order to extend the HEALTH statutory right of access to the foreshore and land EC Directive 76/160/EEC (as amended by 90/656/EEC adjacent to the foreshore to allow access for recreational and 91/692/EEC) lays down the minimum quality pursuits. In making such an Order, the WAG (or criteria to be met by bathing water. It defines the Secretary of State) may modify the application of this physical, chemical and microbiological parameters; the part of the Act insofar as it applies to access to the mandatory limit values and indicative values for such foreshore, as there are various restrictions and definitions parameters; and the minimum sampling frequency and which place certain limits on the right of access. method of analysis for inspection of bathing water. The Directive covers marine and fresh waters, although it is The CRoW Act 2000 is a complicated and extensive piece vague as to precisely which waters are covered. of legislation, not made any simpler by the large number A proposal for the revision of the BWD (COM (2002) of provisions to be enacted through secondary legislation. 581 final) was agreed and published by the Commission The complexity of the legislation is compounded by the on the 24 October 2002, to take into account experience numerous provisions which have yet to be enacted until with its implementation and recent developments in Commencement Orders are made giving effect to them. science and technology and EC water legislation. It aims Furthermore, rights of access do not totally come into to review and streamline the parameters for setting water effect until the Countryside Council for Wales (CCW) quality standards, focusing on fewer microbiological (the Countryside Agency in England), assisted by the indicators and setting stricter standards. Better National Park Authorities, have completed an extensive information will also be provided to the public, making mapping exercise to identify all the qualifying land and use of locally and regionally available facilities and the clarifying the type of access landv internet. The revised Directive aims to be coherent with other EU water related legislation, in particular the LAs to regulate activity and their responsibilities to Water Framework Directive (WFD)viii. The WFD has a promote good practice among all users of the coast. A general objective of achieving “good ecological status” stepped approach is advocated to help authorities to for all waters and specific objectives for “protected develop management schemes and to identify the tools areas” such as recreational waters, including bathing necessary to develop and implement them. waters (Annex IV) (Briefing 10). Box 2 Enabling powers for the creation of byelaws The BWD is implemented in England and Wales by the Bathing Waters (Classification) Regulations 1991ix, made Public Health Acts Amendment Act 1907, s.82-84 under s.102 of the Water Resources Act 1991. Legislative Public Health Act 1936, s.231 action in the UK will be necessary to implement the revised Public Health Act 1961, s.76 Directive to the extent that it adds new obligations or Local Government Act 1972, s.236 changes existing obligations. Local Government (Miscellaneous Provisions) Act 1976, s.17 Local Government, Planning and Land Act 1980, s.185 Public health Under the Public Health Acts, local authorities (LAs) have statutory powers to make byelaws, subject to ADMINISTRATION confirmation by the WAG (or the Office of the Deputy Local authorities have a wide ranging role to manage, Prime Minister - ODPM), regulating public activities on regulate and facilitate coastal recreation. Their main or near the foreshore.
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