Ownership of Sculpture

July 13th, 2015

In Tower Hamlets LBC v Bromley LBC [2015] EWHC 1954 (Ch) the Chancery Division of the High Court was asked to determine the ownership of a Henry Moore sculpture.  Tower Hamlets LBC (“TH”) as the successor to the Stepney Borough Council (“SB”), pursuant to the London Government Act 1963 (“the 1963 Act”).  Bromley LBC (“Br”) was the successor to the London Residuary Body (“the LRB”).  The LRB was the successor to the Greater London Council (“the GLC”) pursuant to the Local Government Act 1985.  The GLC was successor to the London County Council (“the LCC”) pursuant to the 1963 Act.

In 1957 Henry Moore, reflecting on his wartime experiences of the London Blitz and his war artist drawings, created a sculpture which became known as “Draped Seated Woman”. It is a large bronze figure sitting upon a stepped plinth. At least 6 casts were made. On 15 September 1962 one of these was purchased by the LCC.  It was shortly thereafter placed near three tower blocks on the then recently constructed Stifford Estate in the area of SB.  Could TH sell the sculpture to fund local services; or should it be kept for the benefit of the people of London. Who owned the Henry Moore sculpture?

By the mid 1950s the LCC took the view that it had both a cultural and educational responsibility to do what it reasonably could to encourage and assist in the provision of works of art: and that it had two means of doing so. First, the LCC considered that its powers to provide and furnish buildings for various functions included, within the bounds of what was reasonable, an inherent power to provide by way of adornment appropriate and suitable works of art. Second, the LCC had a specific statutory power which provided that it might acquire, by agreement, any work of art, and might erect and maintain, or contribute towards the provision, erection and maintenance of, any work of art in any place within the LCC area.

In 1956 the General Purposes Committee of the LCC proposed that the LCC should earmark annually a sum of money which would be available for the acquisition of works of art for both new and existing buildings and schemes.  That proposal was implemented.

The Stifford Estate was built at Clive Street in Stepney and completed in the early part of 1961. The three tower blocks were regarded as a prime example of modern architecture.  They were built within their own modest grounds abutting onto Jamaica Street at the front, and separated at the rear from Stepney Green by a sizeable public path. They were designed without reference to the inclusion of any particular piece of art, but from an early stage it was contemplated that a work of art would be commissioned and placed somewhere in relation to the development.

Henry Moore confirmed his willingness to sell the sculpture on 4 January 1962.  He was paid for it in September 1962.

Norris J concluded that (paragraph 15) the sculpture, which was originally a chattel, remained a chattel, and never formed part of the realty; that (paragraph 16) the LCC bought the sculpture in discharge of its cultural and educational responsibility; and that (ibid) it did so pursuant to the specific power referred to above.

On the abolition of the LCC, and the creation of the GLC and the various London Boroughs, including TH and Br, the sculpture vested in the GLC, either “in connection with” the Stifford Estate or (as the Judge favoured) as property vested in the LCC.

The Stifford Estate, however, was transferred to TH. Norris J accepted (paragraph 28) that what was transferred was “transferred property”; and that land included property held in connection therewith.  He rejected, however, the submission on behalf of TH that the sculpture was held “in connection with” the Stifford Estate.  Norris J said:-

“31. The 1963 Act was concerned to deal with the transfer of land which had been held by the LCC “for the purposes of their functions as a local authority under the Housing Act 1957”: and the onward transfer by the GLC to a London borough had an identical focus. So the underlying concept is “functionality”: what passes is land held for the purposes of an identified function. If personal property held “in connection with” such land is to pass, it too must have some connection with the discharge of the function of a local authority under the Housing Act 1957. If the LCC had held a collection of pictures which from time to time it displayed in the entrances to public offices and blocks of flats as part of its arts education programme it would have held none of them in connection with the discharge of its function as a local authority under the Housing Act 1957. Those pictures hanging in the hallways of blocks of flats  would not have passed to the GLC as part of the housing stock (as property held in connection with land used to discharge the council’s housing function), leaving those hanging in offices vested in the LCC. The “function” in connection with which the pictures were held was something other than the function of a local housing authority.

32.In my judgment the sculpture was not property “held in connection” with specifically described land held by the GLC for the purposes of its functions as a local authority under the Housing Act 1957. It was held by the GLC (and had been held by the LCC) in connection with its arts education programme as is evident from the circumstances surrounding is acquisition. The power which authorised the acquisition of the sculpture was s.157 of the Local Government Act 1939, not the Housing Act 1957. The power which authorised the retention of the sculpture was s.84 of (and paragraph 16 of Schedule 2 to) the 1963 Act, not the Housing Act 1957. The money that paid for the sculpture was the specific annual allocation for arts purchases and was not accounted for as a housing cost. The sculpture was sited on the Stifford Estate and no doubt benefited the residents of the Stifford Estate, but it also benefited any member of the public using the path alongside Stepney Green or using Jamaica Street.”

Norris J therefore held (paragraph 39) that when the housing accommodation which comprised the Stifford Estate passed to TH, the sculpture was vested in the GLC; and (paragraph 40) that when the GLC was abolished it vested in the LRB.

However, he accepted TH’ case that it had since 1985 repeatedly (and in good faith) believed the sculpture to be its own, and treated it as its own property, including sending it on a long-term loan to Yorkshire, without complaint from the LRB or Br.  Those were acts of conversion. By application of Section 3(2) of the Limitation Act 1980 Br’s title was extinguished.  Norris J held that TH now owned the sculpture. Norris J held (paragraph 49) that the title of BR had been extinguished because various events between 1997 and 2002 were all assertions by TH of rights of dominion over the sculpture inconsistent with the ownership rights of Br.  He said:-

“52. Counsel for Bromley finally objected that Tower Hamlets had no power to acquire property through an act of conversion. But in my judgment it was not “the act of conversion” that conferred title: it was the effect of s.3(2) of the 1980 Act in consequence of the inaction of Bromley (in failing to bring proceedings within the statutory period) even though the sculpture which it now says was intended to benefit and enrich all Londoners was openly on display in Yorkshire.

53. Accordingly I answer the question raised by this action in the sense that the Henry Moore sculpture “Draped Seated Woman” now belongs to Tower Hamlets.”

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