The law and best practice for the renaming of streets and buildings (December 2020) page 33
Consultation
1. The Legislative Frameworks currently refer to engagement as follows:
- Section 21, 1907 Act - local referendum to be held (Wales only);
- Section 18, 1925 Act - requirement to put up notices, although interestingly unlike the following sections below there is no reference to objections being sought/considered (only when naming a new street in England, naming of new streets and alterations in Wales);
- Section 6, 1939 Act - requirement to put up or to use a circular and invite objections prior to altering/assigning a street name (in the case of alterations of existing street names then the 2023 Act requirements to demonstrate necessary support apply);
- Section 11, 1933 Act - requirement to serve notice on owners and invite representations prior to substituting building name;
- Section 13, Oxfordshire Act 1985 (as an example of a Local Act) - requirement to put up notices and serve notice on owners/occupiers prior to altering a street name and invite objections; and
- 2023 Act – in England and alteration to an existing street name can only be made where the alteration has the necessary support (determined in accordance with that Act).
2. A consultation obligation does not need to be expressly set out in statute1 although if a legislative framework requires consultation for certain aspects and not for others that may re-but any suggestion that there should be consultation on the other decisions.
3. Where a consultation duty does not expressly arise an implied duty to consult may arise:
- Where there is a promise to consult on a specific decision or certain types of decision;
- Where the type of decision has been consulted on before;
- Where the decision will have a serious/severe impact on those affected/likely to be affected; or
- Where the decision will remove an existing benefit.
4. An implied consultation obligation is unlikely to arise in every situation but is something that officers should keep under review particularly when developing general policy or dealing with high profile/contentious decisions. In the event there is a consultation obligation - or a council decides to consult even when it does not have to - who should be consulted will be dependent upon the decision but we suggest at least those owners/occupiers affected by the decision. Note that in the case of the 2023 Act, regulations and/or guidance have not yet been published detailing how necessary support is to be demonstrated. See the commentary on the 2023 Act.
5. Any consultation must be adequate and fair having regard to all the circumstances and the courts have set out some broad guiding principles on what this means:
- Consultation must be undertaken when proposals are at a formative stage;
- Sufficient reasons must be given to allow for intelligent consideration and response by consultees;
- Adequate time must be given for consideration and response; and
- Consultation responses must be conscientiously be taken into account before making the decision.
6. It is highly advisable to seek further input from the council’s in-house legal team or other legal advisers when designing standard consultation approaches or the approach to a single consultation.