The protests associated with the Black Lives Matter movement in 2020 raised the question whether statues or memorials to historical figures should be removed where they were involved in slavery. That aspect of the campaign reached its dramatic high point with a crowd pulling the statue of Edward Colston from its plinth and throwing it in Bristol harbour. The statue was subsequently fished out, but is not likely to be re-erected in that location.
The Colston statue is a listed building, so is subject to the protection of heritage law. (1) However its toppling by a crowd is not primarily a matter for listed building legislation. It is more obviously the offence of criminal damage, in which 'Damage caused to heritage and/or cultural assets' is an aggravating factor for sentencing. (2)
This article is instead concerned with the extent to which a planning or historic environment consent would be required before a statue or other memorial can be removed and the relationships between the character of the person memorialised and the tests for obtaining such consents. Whether a consent is required will vary from case to case and might be thought to be an unduly complex issue. I will consider this primarily from the perspective of the law of England and Wales, but will also pick up Northern Irish references. The law of Scotland is different but similar.
Types of Statues
There are three different styles of statue for present purposes:
(i) those which are part of larger buildings;
(ii) statues on plinths;
(iii) freestanding statues.
Forms of Control
The following forms of control may arise:
(i) the statue may be a listed building or part of a listed building;
(ii) a need for planning permission may arise;
(iii) the statue may be in a conservation area. In England this is an aspect of planning control, whilst in Wales and Northern Ireland it also triggers a separate consent regime;
(iv) occasionally, scheduled monument control may arise.
The Secretary of State or Welsh Ministers are empowered to list buildings of special architectural or historic interest under the Planning (Listed Buildings and Conservation Areas) Act 1990 ('the Listed Buildings Act 1990'), section 1: (3)
For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act and the principal Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by [Historic England] or by other persons or bodies of persons, and may amend any list so compiled or approved.
The decision to list a building may take into account: (4)
(a) any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and
(b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a manmade object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building."
Listed building consent is required for "works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest". (5)
When Could a Statue be a Listed Building?
Section 1(5) provides the definition of 'listed building': (6)
In this Act "listed building" means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act--
(a) any object or structure fixed to the building;
(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st July 1948,
shall, subject to subsection (5A)(a), be treated as part of the building.
This definition splits into two elements: a building included in a list, so whatever building is in the list entry; and the extended definition covering 'objects or structures' which are fixed to the building or are part of the land, within the curtilage of the listed building. In the English provisions, subsection (5A)(a) allows items within the extended definition to be omitted from the listed building.
The meaning of 'listed building' in section 1(5) has been ruled on authoritatively by the Supreme Court in Dill v. Secretary of State for Communities and Local Government. (7) The case concerned a pair of early eighteenth-century lead urns (or 'finials'), attributed to the Flemish sculptor John van Nost, each resting on a limestone pier from the 1720s. The piers were of a slab rather than solid construction. Together a pier and urn measured 274 cm high. The items were originally at Wrest Park (then the property of the 1st Duke of Kent). Mr J.G. Murray sold Wrest Park in 1939 and took urns and piers with him. They moved with the family a further three times, finally arriving at Idlicote House in 1973. At Idlicote House the items were placed either side of a driveway. No alteration was made to the garden design to accommodate the items. The items were free-standing. The piers rested on concrete slabs and the urns were not attached to the piers.
Idlicote House had been made a listed building in 1966. In 1986 each set of urns and piers was made separate listed buildings, although there is no evidence that the family was informed. In 2009 Marcus Dill, who had inherited the items, sold them at auction. Having finally become aware that they had gone, the local planning authority, Stratford-on-Avon District Council, in 2016 refused listed building consent for their removal and issued a listed building enforcement notice requiring their return. Mr Dill appealed to the Secretary of State on various grounds, including that they were not buildings and so were not listed buildings.
The Supreme Court agreed with Mr Dill that if they were not buildings then listed building consent was not required for their removal, notwithstanding the listing.
The Meaning of 'Building' in Listed Building
The word 'building' is not separately defined in the Listed Buildings Act. By section 91(2), except where the context otherwise requires, it has the same meaning as in the Town and Country Planning Act 1990, section 336 of which provides:
'Building' includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building ... The inclusion of 'structure or erection' broadens 'building' from its ordinary definition of a house or other structure with a roof and walls. Few memorials would be buildings in the ordinary sense, but many statues might be structures or erections. Beyond widening the meaning of building, neither of those terms is particularly useful to apply in practice. The context of physical objects in planning and listed buildings is of those which have a firm association with the particular land.
The question of what on its own could be a building had not been directly addressed in the listed building context, but the Supreme Court held that it should have the same meaning as in planning. In Skerritts of Nottingham v. Secretary of State for the Environment, Transport and the Regions (No. 2) (8) the question of whether a very large marquee (9) was a building was said to be judged by considering its size, permanence and degree of physical attachment. Lord Camwath JSC applied this approach in Dill: (10)
Given that the same definition of "building" is adopted in the Listed Building Act, it is difficult to see any reason in principle why the same test should not apply. On the other hand, notwithstanding the apparent width of the statutory definition, the mere fact that something had been "erected" on land was not sufficient to make it a building. Whilst referring to those three factors, Lord Camwath also emphasised the importance of the means of erection and the need in the planning context for something akin to a building operation. (11) Since listed building consent concerned 'works for the demolition' this 'clearly envisages some form of dismantling (i.e. "pulling down or taking to pieces" in the words of Jenkins J. in the Cardiff case (12)) when the item is removed from the site. (13) That is of some significance in considering whether a freestanding statue is a building, as a statue will often be capable of being removed in one piece. However a plinth will often be formed of stone or brick cemented together, and may be incapable of being moved intact.
There is limited assistance in the cases as to how the buildings test will be applied in practice to statues and other memorials. The planning cases have usually concerned large structures which involve assembly from multiple components: see the marquee in Skerritts, 39 hectares of polytunnels in Hall Hunter (14) and mobile poultry units being 20m X 6m X 3.5m in height in Save Woolley Valley. (15)
The Supreme Court considered that whether the items were buildings was a matter for the Inspector or Minister on the redetermination of the appeal, provided it was judged in accordance with law, rather than for the Court. They declined therefore to express a view on the status of the urns and piers. Lord Camwath commented that there were arguments both ways: (16)
On the one hand, it can be said, they comprised a set of elements which had to be assembled together (a "structure"), required a small crane to move them and to assemble them (as an "erection"), and were intended to occupy a stable and near permanent position in situ (with greater permanence than the marquee in Skerritts). On the other hand, they are not particularly large, compared for example with the items considered in the three planning cases. It may also be relevant that the vases themselves, which are the real focus...