Endangered Public Sculptures

Several currently running cases concern the legal status and protection of sculpture in the public environment.

In November 2012 the London Borough of Tower Hamlets made a policy decision to sell Henry Moore’s sculpture, Draped Seated Woman, 1957-8. In the 1960s Moore sold the bronze cast (to Tower Hamlet’s predecessor London authority) at a discounted price on the ‘understanding’ that it would be located in east London. The Borough, one of the poorest in the UK, needs to make expenditure savings of £100m by 2015. The estimated £20m proceeds of sale will make a significant contribution.

This policy decision generated much media attention, focusing on public opposition from Moore’s daughter Mary, and luminaries including Sir Nicolas Serota and London Olympics opening ceremony director Danny Boyle. Often overlooked in the media debate are two important facts: Moore’s work has been on loan to the Yorkshire Sculpture Park since 1997, as a cost-saving measure; and Tower Hamlets would be unable to afford the cost of insuring the work against vandalism and theft, if returned to the Borough. Leaving aside public policy and ethical issues, did the Borough have the legal right to relocate the work from east London; and can it legally be sold?

Works of public art and architecture are protected in most countries by special laws and public policies preventing their destruction or removal, and promoting conservation or restoration. A principal aim of such protection is to preserve the quality of the built environment for the benefit of the public both in the present and for posterity. Such special measures are promulgated to override laws of property ownership, which would otherwise give owners the legal right to destroy, neglect or dispose of their property.

Heritage preservation laws rarely list specific works of art and architecture; they provide a framework within which works are evaluated, usually by a panel of art and architecture experts that advise a government minister who makes a final policy decision whether to ‘list’. The criteria for assessing a work vary in each country: one set for architecture, another for public art, and a combination where art is integrated into architecture.

The UK Government’s Principles of Selection for Listing Buildings, 2010, requires ‘that buildings under 30 years old will normally be listed only when they are under threat, and are of outstanding interest.’ English Heritage (the government’s advisory body for care of the historic environment) operates a ’30-year rule’ for listing public sculpture, because ‘critical assessments have yet to be made of recent works, which makes consideration for designation a challenge: this necessitates the assessment of an artist’s overall achievement, and the aesthetic merits of the work of art in question.’ Accordingly, buildings and public sculptures less than 30 years old ‘are rarely listed as the lapse of time is usually insufficient for their significance to be properly understood and assimilated.’

In 2007 a campaign was launched to list Elisabeth Frink’s Desert Quartet, 1990: four bronze sculptures commissioned in 1985 by property developers as an integrated external feature of its then new shopping precinct at Worthing, West Sussex. The property developers owned the building and planned to remove the sculptures, but were prevented from doing so in 2009 when they were officially listed by the UK government on the advice of English Heritage. This is the only listing made of a public sculpture less than 30 years old, a decision greatly influenced by the fact that Frink is an artist of ‘international stature’. No other structures or buildings from the 1990s to date have been listed.

Similar issues faced recent campaigners to save from destruction a public artwork that is also an integrated external feature of a privately owned public building. The building is a large commercial property: Allington House, 150 Victoria Street, London, owned by the UK’s largest property development and real estate investment company: Land Securities Group plc (LandSec).  The artwork comprises carved limestone sculptures (elephant, tiger, orangutan) embedded into the building above its front entrance: Endangered Species Triptych, 1997, by UK artist Barry Baldwin, and commissioned by LandSec for its then new building.

In 2011, LandSec was granted planning permission by Westminster City Council to transform Victoria Street by replacing a large number of existing buildings, most of which LandSec already owns, with six new office buildings, four new residential buildings, new pedestrian streets, a new library, a fly tower for the Victoria Palace Theatre, and refurbishment of several more office buildings. (Incidentally, it is widely reported that many Mayfair-based commercial galleries will relocate to this new ‘Victoria Circle’ district). Baldwin’s sculptures are scheduled for destruction, not removal and relocation or sale.

LandSec appears to have a strong legal hand: it owns the building and artwork, and has planning permission to re-shape the specified environment. Baldwin appears to have no legal case, unless, for example, in the unlikely event that his commission contract with LandSec specified he would have the right to remove and relocate his artwork if LandSec (or any subsequent owners of the building) agreed. Intellectual property laws in the UK do not give artists the legal right to prevent destruction of their artworks (the moral right of integrity) unless, for example, LandSec destroyed the triptych in a publicly humiliating manner that impugned Baldwin’s professional integrity and reputation.

LandSec appears as Goliath to Baldwin’s David in terms of wealth and power, and in law. Negotiations between Baldwin’s campaign team and LandSec proved fruitless, and so an application was made to English Heritage for the artwork to be listed. English Heritage’s advice to the Secretary of State of Culture was accepted: the listing application was rejected. The reasons for rejection are: LandSec’s building ‘does not possess the outstanding special interest that listing would require’; and Baldwin’s artwork ‘does not meet the criteria for listing buildings or structures under 30 years old.’  English Heritage’s report to the Minister amplifies its criteria for assessing contemporary artwork, as follows:
*Artistic interest and date: while executed with considerable panache and craftsmanship, the sculpture does not have the outstanding artistic interest required to list works of such recent vintage.
*Authorship: it is too early to assess the overall achievement of Barry Baldwin, and the perspective of his significance in late-C20 sculpture is lacking. His work however has not achieved such critical acclaim that would demand consideration for designation under the 30-year rule.

In other words, Baldwin’s standing does not equate to, say, Frink’s. Where does that leave the campaign to save the artwork? It has until the beginning of December 2012 to launch an appeal to the Minister to review her decision – but only if the campaign produces ‘any significant evidence relating to the special architectural or historic interest of the building which was not previously considered.’ In this respect, and if the campaign does appeal, it may consider broadening its submission to embrace the ‘international stature’ criterion that was evidently so influential in listing Frink’s artwork.
Moore’s international standing is incontrovertible, as is his intended location for Draped Seated Woman; and the work is over 50 years old. Perhaps cultural luminaries calling for its retention might consider applying for it to be listed as a work of ‘outstanding artistic interest’ permanently located in east London.

© Henry Lydiate 2012

NOTE (added July 2015): London’s High Court ruled that the true legal owner of the Moore work is Tower Hamlets, not Bromley, Borough Coucil; and Tower Hamlets has reversed its old policy to sell the work, which is still currently on loan at Yorkshire Sculpture Park, and to re-locate it back to a yet  to be specified public location in the Borough.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.