Economic Development Report
Amendment of Policing of Beaches Licensing Conditions
The Assistant Minister has decided to amend the licensing conditions of Policing of Beaches licences in line with the attached policy document.
Dr Jason Lane
Director of Regulatory Services
15th December 2006
The Assistant Minister for Economic Development, Deputy Alan Maclean, invites comments from interested parties to the following final policy paper:
MINISTERIAL POLICY REGARDING THE ADMINISTRATION OF
POLICING OF BEACHES ( JERSEY ) REGULATIONS, 1959
Background
The Economic Development Department decided in the Spring of 2006 to undertake a review and public consultation regarding the administration and licensing of concessions under the Policing of Beaches Regulations. This was motivated by the internal transfer of responsibility for this legislation from Jersey Tourism to Regulatory Services. This transfer leaves Jersey Tourism free to concentrate on its core business and fits well within the Regulatory Services portfolio. Ms Peta Philo, Hospitality and Leisure Manager, has transferred to the Regulatory Services Directorate in order to provide continuity of administration and support.
The Department received four written submissions and met a number of individuals personally to canvass their views.
As a result of this consultation exercise, the Assistant Minister is prepared to make significant changes to both the licensing and administration of these Regulations. The department will, however, be guided first and foremost by recognition of a duty of care for public safety and then by a recognition that there must be a balance between the sometimes competing needs of beach-users and local residents.
Mission
The Island’s coastline and beaches are a rich part of our physical and environmental heritage. Jersey is proud to have some of the finest beaches in Western Europe, with recognised clean water and high standards. In order to ensure that we hand on our beaches to future generations in the same or better state than we inherited them, it is vital that care is taken to protect them and that mass commercialisation of beaches is prevented.
To that end, the over-arching principle will remain that no business has the right to operate from or on a beach and that the principle value of the Island’s beaches is as an open leisure area for the benefit of the general public.
Past Policy
The past policies and precedents of the former Tourism Committee and its sub-committees with regard to beaches were generally developed without a written strategy statement which made it difficult for people to properly understand how decisions were made. Generally, however, they held to the following principles:
That they were only responsible for activities undertaken on the beach itself. This did not include hinterland behind the beach, nor the marine environment beyond the beach.
That the public had the general right to use the beach unmolested by hawkers and without disturbance or disruption.
That commercial activities allowed on a beach would remain on a small scale to ensure that the dominant user remained the general public.
That before granting any consent to trade on a beach the view of the respective Constable would be sought.
If the proposal might affect an area of high residential density or be otherwise environmentally sensitive, consideration would be given to its impact, particularly with regard to noise and pollution.
The applicants for any concession would be expected to have appropriate experience and qualifications, together with full Public Liability Insurance.
This policy was interpreted with flexibility on a case by case basis and it was accepted that trading on a beach was a privilege and not a right.
The Review
It was suggested by one respondent that the Regulation is no longer necessary and that either the market or the Regulation of Undertakings and Development Law would provide suitable controls. This is not accepted. The regulations give powers to the Minister to licence or prevent activities specifically on beaches e.g. trading, events and parking. This is deemed to remain an essential safeguard.
Nearly all submissions made to the Assistant Minister referred to the need to constantly renew licences year on year and that stated that this was neither productive, efficient nor encouraging for investment. This argument is reasonable and the possibility of licensing for up to three years will be introduced.
It was suggested that there is no longer any need for the licensee to be an individual, rather than a company, nor a requirement for the licensee to be personally present at all times of operation. This is acceptable, but must be accompanied by a balancing provision that ensures there is a responsible and suitably qualified and insured individual on site for the period that the concession operates and in day to day control of the concession. If the activity is one where national governing body qualifications exist, then all staff supervising these activities should hold such qualifications, hold appropriate insurance and undertake to retrain and re-qualify as appropriate.
It was put to the Minister that all concessionaires should have a child protection policy and have undertaken child protection training. This seems reasonable in an environment where young or vulnerable people are involved, but not necessarily appropriate for all concessions. The Minister does, however, believe it is important that all staff directly involved in the supervision of children should have had a Criminal Records Check and that these checks should be renewed at regular intervals. Any convictions, charges or criminal proceedings should be reported to the department immediately.
One respondent was in favour of designating beaches and for the largest, parts of beaches, for certain activities only. It was offered that this would improve the licensing process as it would dictate whether an activity would be considered appropriate on any given beach. It would also be of potential benefit to beach users who would find it easier to understand what activities were allowed on different beaches. The Minister finds merit in this idea, but is not convinced that the practicalities involved would make it broadly acceptable to the public. Further consideration may be given to this suggestion, however, in the light of new and possibly noisy or fast moving vehicles. The Minister would welcome further discussion around limiting certain activities to individual beaches.
New Policy
Licences may be awarded for up to three years. In the event that a proposed concession is likely to be controversial, or generate public complaint, the Minister may grant a licence limited to three, six or twelve months.
In respect of Jet-skis, the Minister has been advised by Jersey Harbours that only two operations should be permitted in St Aubin’s Bay, each to be limited to specific zones to be demarcated above and below the low mater mark. The Minister wishes to make a clear statement acknowledging public sensitivity regarding these and other fast moving and potentially noisy or dangerous craft. All licences awarded for the operation of jet-skis will be closely monitored.
Existing concessions can ordinarily expect to have their licences renewed for the 2007 season and up to 2009, notwithstanding that the Minister reserves his rights under Article 3(2) such that "any permission under this Regulation may be granted subject to such conditions as the Minister may think fit to impose, and may at any time be withdrawn by the Minister".
As a general principle, the value of competition against the public desire to unencumbered access to a beach will continue to be assessed on a case by case basis.
The existence of a concession on any particular beach will not of itself preclude competition, but at a site with limited access, or which is particularly small it might be deemed acceptable to only licence one operation. The grant of a licence will remain valid for up to three years and there will be no automatic right to a further grant. Existing concessions in areas deemed capable of only supporting one business will not, therefore, be immune from competition from other applicants in future years.
The Minister will also monitor the use of beaches by other undertakings that, while not directly trading on the beach, nevertheless use the beach as their main area of operation. This particularly impacts upon those operations that are marine based, but switch their sites in line with tides, weather and other factors. Although there is no power within the Policing of Beaches Regulations to govern this activity, the Minister is prepared to consult with the Connétables, Jersey Harbours, Property Holdings and Transport and Technical Services if a concessionaire requests this, in order to prevent persistent encroachment of their concession by a competitor roving business.
The Minister has made it clear that a “light touch” form of Regulation is preferred and businesses are to be encouraged to discuss matters together, either individually or as part of a forum, so that any disputes can be resolved without the need for government intervention.
The Minister will review all applications for licences and will in cases of new or contentious applications personally decide whether to conditionally grant or refuse a licence. Renewals or uncontentious applications may be considered by officials.
No hawking will be permitted, nor will activities that might be considered at odds with the status of a beach as a family friendly area. Individuals should be able to use a beach free from harassment, undue noise or other pressure.
All applicants will be expected to demonstrate that their concession will be staffed by individuals holding requisite qualifications and that these qualifications are valid. Comprehensive appropriate public liability insurance must be in place. No grant to trade will be made without these being in place. In addition, a full Criminal Records Check will be made through the Police National Computer of all staff involved in the supervision and safety of children, together with the principals of the applicant company or other such applicant.
This process is unfortunately time-consuming but absolutely necessary. Applicants are advised that where possible, a Criminal Records Check should be applied for at least two months prior to any preferred start date. The processing of the check is subject to police resource constraints and cannot be sped up by the Economic Development Department.
An outline guide to the application process is described below.
APPLICATION FOR CONCESSION PROCESSING PROCEDURE
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- All applicants must have already applied to Regulations & Undertakings and must have been resident for not less than 5 years.
- Applicants should fill out the appropriate application forms, paying specific attention to providing the department with information relating to their business plan and any impact analysis they have undertaken.
- Officials will check the designated area and ensure that there is no unnecessary encroachment on other concessionaires in the immediate vicinity. Where a Marine concession is requested all necessary permissions must be obtained from Jersey Harbours.
- Officials will have regard to the environmental and social impact of the activity.
- Applicants are responsible for ensuring appropriate public consultation and officials will ensure that other relevant authorities are informed:
i. Parish Constable
ii. Planning & Environment
iii. Transport & Technical Services
iv. Health & Safety
v. Health Protection
vi. Jersey Harbours
vii. Property Holdings
- Appropriate Public Liability Insurance for the activity undertaken must be in force.
- If the proposed concessionaire is to operate sea going vessels the following must also be verified:
i. Appropriate training & certification
ii. Vessels to be inspected for seaworthiness, safety etc. by Jersey Harbours
- All decisions regarding the granting of concessions will be made by the Minister or the Director of Regulatory Services. Any unsuccessful applicant may appeal. Please be aware that although an appeal will be heard as quickly as possible, this is subject to the availability of appropriate personnel (who cannot have been involved in the original decision).
- No “roving” trading will be permitted.
- Concessions can be granted to either an individual or a company.
- Sub-letting will NOT be permitted.
- Potential concessionaires must ensure that at least one responsible and suitably qualified and insured individual is on site for the period that the concession operates. All qualifications must be valid and in force.
- The usual processes of obtaining references and Criminal Record Check apply.
- Applicants to be made aware of the terms of the contract, copy to be available.
- Applicants will sign a declaration outlining the truthfulness of all facts pertaining to their application and agreeing to the information being distributed and disclosed to other parties.
Deputy Alan Maclean
Assistant Minister for Economic Development
gov.je