For the Local Government Lawyer Ruchi Parekh highlights the legal framework and some of the issues that councils will need to consider before amending their street names or removing statues.
Ruchi Parekh writes in Local Government Lawyer:
In the wake of the Black Lives Matter protests, local authorities across the UK are having to grapple with the controversial historical figures that line their streets. Many councils have committed to a review of their street and building names, signs and monuments – in an effort to end the celebration of figures associated with slavery and racism.
But how can such change be lawfully executed?
The law on street names in England and Wales is fairly archaic and complex.
A key provision governing the alteration of street names is s.18 of the Public Health Act 1925, although note that this is an ‘adoptive’ provision and therefore only effective within an area after formal adoption by the authority concerned. (The provision does not, however, extend to Greater London).
Under s.18, an authority may by order alter the name of any street or part of a street. At least one month’s notice must be given before making such an order – either by posting at each end of the street or in some conspicuous position on the street. Each notice must provide information about the right of appeal (to the magistrates’ court) against the proposed order.
The courts have confirmed that s.18 imposes no preconditions on the exercise of the power, although the usual principles of public law will apply (see Basildon BC v James  EWHC 3365 (Admin)). On appeal, the magistrates’ court must pay great attention to the opinion of the council and will only interfere with the decision if satisfied it was wrong. Accordingly, it is advisable to provide full reasons for renaming the street, so as to ‘challenge-proof’ the decision.
Moreover, while there is no duty to consult, many authorities do choose to consult in practice. Given the current divisions in public opinion, it would be prudent to carry out a consultation exercise, and the requirements are discussed in further detail below.
An alternative power to rename streets is found in s.21 of the Public Health Acts Amendment Act 1907, but this is subject to obtaining the consent of two-thirds of the ratepayers and council taxpayers living on that street. However, this section ceases to have effect where an authority has adopted s.18 of the Public Health Act 1925 (and vice versa).
Finally, in the Greater London area, the relevant powers are to be found in the London Building Acts (Amendment) Act 1939. By s.6, an authority may by order, after giving notice and considering any objections, assign any name to a street “whether or not in substitution for a name already given or assigned”. Notice of intention must be posted in some conspicuous position in the street or must be given by circular delivered at every building on that street.
There are several considerations involved – spanning public, planning and property law – if you are contemplating the removal of a statue in your area. The key issues to think about include:
- Consultation. There are strongly held views on all sides – the debate is not solely about removal versus preservation, but also about which historical figures should now be subject to scrutiny. Therefore, while there is no freestanding legal duty to consult as such, it may be advisable to carry out a consultation exercise before making any final decision about the future of a statue. Where authorities do choose to consult, the well-established Gunning principles will apply (which were approved by the Supreme Court in Moseley v LB Haringey  UKSC 56).
- Decision-making. For similar reasons as regards consultation, the decision-making process should be as transparent as possible. While the precise process will ultimately be governed by each council’s constitution, broad consensus should be sought and member approval should be obtained where possible.
- Public sector equality duty (PSED). The duty imposed by s.149 of the Equality Act 2010 requires public bodies, in the exercise of their functions, to advance equality of opportunity and foster good relations between persons who share a protected characteristic (e.g. race) and those who do not. In considering the removal of statues, and indeed the erection of new statues (and when renaming streets), councils will need to give due regard to these statutory aims. For e.g., the decision-making process and any consultation exercise could be used to tackle prejudice and promote understanding between different groups.
- Ownership. Not all statues are erected on local authority-owned land, and in such cases a council’s role may be limited to inviting the relevant person or organisation to consider removing the statue. Even with monuments erected on local authority-owned land, there may still be issues of historic private ownership in respect of the statue itself which will need to be considered.
- Planning permission. The demolition of a statue may amount to ‘development’ and therefore require planning permission – unless it benefits from permitted development rights (see Sch.2, Pt.11 of the Town and Country Planning (General Permitted Development) (England) Order 2015) or falls within the ambit of the Town and Country Planning (Demolition – Description of Buildings) Direction 2014. Councils may also want to consider adopting policies on the erection of new statues and the removal of existing ones; at least one London council has a supplementary planning document dealing with new monuments.
- Listed building consent. If the statue in question is a listed building, demolition will require listed building consent. Difficult issues are involved here, as the focus of the relevant legislation and national planning policy is on the conservation of these designated heritage assets. However, it may be relevant to note that in nearly all cases, the statue will not be demolished as such but rather removed and moved to a more appropriate setting such as a museum.
- Notification/referrals. Where planning permission and/or listed building consent is required, the local planning authority will need to ensure that the relevant bodies (e.g. Historic England) are consulted or notified, and that applications are referred to the Secretary of State where necessary.
Ruchi Parekh is a member of Cornerstone Barristers’ public law team, with expertise in local government, planning and property law.