Nightmare of Planning Laws: Westminster City Council V Time Life
Westminster City Council and publishers Time Life are currently heading towards a unique legal dispute over artworks at the Time Life building in New Bond Street, London. It involves a Henry Moore Draped Reclining Figure, a painting by Ben Nicholson and other artworks. Site specificity is one of the main issues of the dispute.
In 1954 Time Life bought the Moore and other works soon after they had leased the then newly built offices. They now intend to leave the building in December 1993 and want to take their artworks with them. Westminster City Council is the local planning authority and it says the artworks must stay with the building. Currently the Moore sculpture is on exhibition in Edinburgh and the Ben Nicholson painting is being restored. Westminster City Council insist that these must now be returned to the Time Life building and have threatened to issue an ‘Enforcement Notice’ which would force them to do so.
On the face of it Time Life have a legitimate grievance: they bought the artworks so surely they, like any purchaser, should be able to do what they like with them, move them to another place, loan them for an exhibition or even sell them if they wish. However Westminster City Council also have a legitimate case. Occupiers of listed buildings are subject to the constraints of planning laws. Leaseholders, like Time Life, face the added risk that the freeholders (here Pearl Assurance) will claim that artworks are fixtures and thus belong to them. That could be a problem in this case since Pearl Assurance do support Westminster City Council in the matter. At the heart of the argument between the Council and Time Life are the planning laws. In 1988 the Time Life building was listed, sowing the seeds for the current dispute. Westminster City Council states that the listing of the Time Life building extends to the artworks in and around it. Time Life disagrees, saying that the artworks are decorations not fixtures and are not covered by the listing. Westminster claims that the building and its ‘sculpture court’ form an architectural and artistic ensemble of great historical and architectural importance, since it is one of the only complete intact Festival of Britain-style buildings. Just what is the effect of listing on a building and its artworks?
Once a building is listed, no alterations which affect its character may be made to it or its curtailage (legal jargon for the land which surrounds a building and is integral to it e.g. farmyard to farmhouse) without the consent of the local planning authority. The effect on artworks is less clear and will differ from case to case. A sculpture may itself be listed, but this has not happened here. Broadly speaking artworks may well be included within the listing of a building if they
a) are within the curtailage and form part of the land or
b) are fixtures – i.e. are fixed to the building
In the first situation (curtailage) it seems there is no need for the artwork to be fixed to the ground. It may be enough that it rests there by its own weight, if it was put there to improve the land. In the second situation (fixtures) whether an artwork is fixed to a building seems a simple question, recent cases suggest that it is not. If the artwork is considered to be integral to the design or character of a listed building then it may be classed as a fixture even if it is not permanently affixed to the building. There is a crucial distinction between, for example, a painting which is just hanging on a wall and one which plays an integral part in the original design of the building. Legal penalties for altering a listed building without consent do exist. The Council, a local planning authority, can issue the occupier with an ‘Enforcement Notice’ and, if it is not complied with, can then enter the building and do the restoration works itself. It is a criminal offence to alter a listed building without consent and occupiers and owners may be prosecuted.
The relevance of the Time Life dispute to makers and commissioners of site specific artworks is clear. The fact that an artwork has been especially commissioned and sited may influence the planning authority’s view as to whether the work is covered by a building’s listing or not. In this particular dispute. Time Life claims that the artworks (with the exception of a Henry Moore screen) were not commissioned especially for the building. If the matter does end up in court no doubt both sides will use historical research and documents, including correspondence with the artists, to try to prove their case and influence the eventual outcome.
The wrangle illustrates and underlines the importance of using clear and detailed written records for the commissioning and installation of all artworks. Ideally a written contract between artist and commissioner would make absolutely clear whether the artwork was commissioned for a particular site and was to be integral to the design of the building or not. It may, for example, state where the artwork is to be sited and if the commissioner is to undertake other works to the surrounding area e.g. build a surround or co-ordinate the colour scheme. If, like Time Life, the commissioner is a leaseholder then it would be wise to ensure in the lease (a contract to occupy land) that the artworks may be removed at the end of the lease. However commissioners, like all occupiers, run the risk that their building will be listed and this will affect what they, and their successors, are able to do with site specific-artworks. Probably most commissioners of site specific artworks are freeholders, not leaseholders, and the artworks will stay in place for many years. If the Westminster and Time Life dispute is eventually resolved by the courts the result may well clarify what is currently a very grey legal area.
Henry Lydiate and Nathalia Berkowitz are barristers with a special interest in the law relating to visual arts.
© Henry Lydiate and Nathalia Berkowitz 1993
NOTE (added December 2019): in 1998 London’s High Court ruled that the three works of art commissioned for the building, which at the time were under threat of removal, were integral to the building and could not be removed, namely: Draped Reclining Figure by Henry Moore, Complexities of Man by Geoffrey Clarke, and Spirit of Architecture by Ben Nicholson. HL