Reality Bites: art, planning, law and singing sharks

Art has collided with planning control and so far the planners have the upper hand. The winning entry of the 2020 Antepavilion Competition, an annual architecture competition sponsored by Antepavilion Limited, and The Architecture Foundation Limited is called Sharks!. This is described as:

""Sharks! by Jaimie Shorten

'The Headington Shark (proper name Untitled 1986) made a famous case in planning decisions and precedent. The Appeal decision that allowed it to be (eventually) retained included this:

"the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them"

This proposal has several sharks on a raft.

The compositional arrangement of the sharks follows that of The Raft of the Medusa by Théodore Géricault (1791-1824).

They will sing Charles Trenet's La Mer, in harmony and in French, as a poignant reflection on the UK leaving the EU

       La mer,

       Au ciel d'été,

      Confond, ses blancs moutons

      Avec les anges si purs.

      La mer,

      Bergère d'azur

      Infinie…

Additionally, each of the six sharks will give a lecture on important themes in contemporary architecture and urbanism."

Reflecting the need to discuss contemporary architecture without eating the audience, the sharks would not be real, but were constructed of fibre glass and polystyrene, containing smoke machines, lasers and loudspeakers. They were to float in the Regent's Canal, London adjacent to wharves which have a long history of art display and installation. The wharves also have a long history of planning enforcement disputes, with a 2016 enforcement notice against installations at roof level still not complied with and an appeal underway against another enforcement notice concerning the winning entries in the 2019 Antepavilion competition. The brief for the 2020 competition included "proposals that referenced Hackney Council's ongoing campaign to demolish the previous Antepavilions that have been built at Hoxton Docks". The exercise would appear to have been a deliberate wind-up. Unsurprisingly the prospect of the sharks arriving in north London appealed to the media, but not to Hackney Council who are the local planning authority.

The Council considered that the installation of the sharks would be a material change of use of part of the canal and so amount to development under the Town and Country Planning Act 1990, s 55. It would therefore need planning permission which it did not have and this would be a breach of planning control. The installation was said to harm the setting of a listed building, Haggerston Bridge, harm the character of the Regents Canal conservation area, obstruct navigation, impede public access along the towpath, disturb local residents (who might not want to listen to architectural lectures) and concern was also expressed about the lasers.

Section 187B of the Town and Country Planning Act 1990 enables the Court to grant an injunction against a breach of planning control:

1. "Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
2. On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

Acting with an alacrity not shown by the mayor in Jaws, Hackney applied, without notice, for an interim injunction against the installation of the sharks or any other art in the canal or the wharves. This was granted on 20^th August and immediately attracted press attention.

The case came back in front of Mr Justice Murray for an inter partes hearing with judgment being handed down on 18^th September: London Borough of Hackney v Shiva Limited [2020] EWHC 2489 (QB). What was at stake was a continuation of the interim injunction. Murray J held that there was a serious issue to be tried: having regard to Thames Heliports Plc v London Borough of Tower Hamlets (1996) 74 P&CR 164, the floating sharks could be a material change of use of that part of the canal. I note that whether they were a material change of use would be a matter for the final hearing to determine: the Court must find an actual or apprehended breach of planning control, see Trott v Broadland District Council [2011] EWCA Civ 301 at para 23 per Sullivan LJ; Davenport v Westminster City Council [2010] EWHC 2016 (QB) at para 93 to 96 per Eady J.

The second question was the balance of convenience. The Court considered that in the context of the claimed harms and interim injunction should be continued. This seemed to be on the assumption that the Council would give a cross-undertaking to pay damages for loss caused to the defendants if the injunction was ultimately found to be unjustified (see para 80). Requiring a cross-undertaking would be unusual for an interim injunction which was concerned with law enforcement, such as this.

The sharks which were then bobbing around on the canal were required to be removed. The Court did though cut down the scope of the injunction which had been a general prohibition from installing art works on that part of the canal or wharves, stationing pontoons or carrying out any works.

The case will return for a final hearing, possibly to be known as Jaws: The Revenge.

Richard Harwood QC is the author of Planning Enforcement (3^rd Edition, 2020) and a member of Professional Advisors to the International Art Market