Black Lives Matter and monuments: legal considerations for charities and churches

03 July 2020

Recent developments in case law and public debate have brought into sharp focus the role and status of statues and monuments across the country, particularly in public spaces such as civic and religious buildings.

As calls for the removal of statues, monuments and memorials related to slavery and racism grow ever louder in the wake of the Black Lives Matter movement, both private owners and national institutions including museums, galleries and bodies such as English Heritage, the National Trust, the Church of England and other faith groups will need to consider carefully the legal framework and requirements for the alteration, removal or disposal of such items.

The Church of England: some “will have to come down”

A number of Anglican dioceses are conducting audits to determine the extent to which statues and memorials contained within the Church of England’s 16,000 churches and 42 cathedrals have historical connections to slavery and racism.

The Most Reverend Justin Welby, Archbishop of Canterbury, has said it is inevitable that some works at historic and ancient sites including Westminster Abbey “will have to come down”. Steps have already been taken by some churches to cover or remove gravestones, windows and busts deemed likely to cause outrage and offence, or where such items have been added by members of the public to the ‘Topple the Racists’ website.

The Church of England has stressed the need to consider these issues carefully in terms of context, and also to comply in full with the complex legal regime which governs the removal of items from churches, abbeys and cathedrals. Becky Clark, the Church of England’s Director of Cathedrals and Church Buildings, commented:

We acknowledge that dialogue alone is not sufficient, and must have real outcomes. These may include the alteration or removal of monuments. However this must be done safely and legally, and we do not condone illegal acts.”

In determining their response to the situation, parochial church councils, and deans and chapters, will need to exercise careful judgment, guided by their duties as charity trustees as well as stewards of ecclesiastical heritage. We anticipate an increase in applications made under the faculty jurisdiction and Cathedrals Fabric Commission, and our Ecclesiastical Team is on hand to advise church clients on process and requirements.

Listed monuments: when is a building not a building?

Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20 has reiterated the importance of engaging with the local planning authority in respect of ‘listed’ structures, items and artefacts, helpfully clarifying the definition of “Building” for the purposes of the listed buildings regime. Trustees with a duty of care for historic properties and contents will need to be aware of the applicable regulatory regime and ensure that proper process is followed.

The case concerned a pair of 18th century lead urns on limestone pedestals originally situated in the historic gardens at Wrest Park in Bedfordshire. Removed in 1939 and subsequently relocated, their new owner moved them to the garden of the Grade II listed Idlicote House, and in 1986 they were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971. Upon his father’s death in 1993, the appellant, Mr Dill, acquired the house and urns, selling the latter at auction in 2009 whilst ignorant of their listed status.

In 2015 Stratford-on-Avon District Council wrote to Mr Dill explaining that listed building consent had been required for the urns’ removal. In June 2015, an application was duly made, and refused, for retrospective listed building consent, and an enforcement notice served on Mr Dill requesting their reinstatement. By this stage it is believed that the urns were no longer in the country.

Mr Dill appealed to the Secretary of State on the grounds that the urns were not “buildings” for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990, but the inspector dismissed this, taking the view that the status of the urns in the list as “buildings” was determinative in itself and it was not possible to ‘go behind’ the listing. This position was upheld by the High Court and the Court of Appeal.

The Supreme Court then had two issues to determine:

  1. whether an inspector could consider whether or not an item on the list is a “building”; and
  2. what criteria are relevant in determining whether an item in its own right is a “building”.

The Skerritts test was applied, “considering size, permanence and the degree of physical attachment”, and the Supreme Court decided in favour of Mr Dill. Giving the unanimous judgment Lord Carnwath said:

A listed building means ‘a building which is … included in [the] list …’. Thus there are two essential elements: it must be both a ‘building’ and it must be ‘included in [the] list …’. If it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so”.

The judgment provides welcome clarity, whilst serving as a timely reminder that persons and bodies contemplating the removal or alteration of controversial free-standing items must follow due process.

Our Charities Team works closely with our Planning Team and is well-placed to advise trustees and governing bodies as required. If you would like to discuss how we might be able to assist you, please get in touch with Frances Godden or another member of the Charities and Social Enterprise Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.