Local authority – Sculpture – Ownership – Claimant local authority wishing to sell sculpture on housing estate to fund local services – Defendants challenging right to sell as successor to London Residuary Body – Whether sculpture being part of land or chattel – Whether defendants’ title being extinguished – Claim allowed
In 1957, Henry Moore created a sculpture known as “Draped Seated Woman” which was a large bronze figure sitting upon a stepped plinth, its left arm resting upon the upper level. In 1962, one of the six casts was purchased by the London County Council (LCC) and placed near three tower blocks on the recently constructed Stifford Estate in Stepney (now in the London Borough of Tower Hamlets). On the abolition of the LCC, it was common ground that the sculpture vested in the Greater London Council (GLC). The Stifford Estate, which had also vested in the GLC, was subsequently transferred to the claimants. No mention was made of the sculpture which vested in the London Residuary Body when the GLC was abolished. However the claimants had dealt with the sculpture as if it belonged to them, amongst other things, removing it from its site for renovation and loaning it to the Yorkshire Sculpture Park for extended periods without any reference to the defendants.
The claimants subsequently decided to sell the sculpture to fund local services but the defendants, as successor to the London Residuary Body, challenged their right to do so saying that the sculpture had to be kept for the benefit of the people of London.
The court identified two questions for its determination: (i) into what legal category the sculpture was to be placed (whether it was part of the land or a chattel); and (ii) in what right the LCC had acquired and held the sculpture.
Held: The claim was allowed.
(1) It was always a question of fact in the individual case whether something had remained a chattel or become a fixture; other cases therefore served as no more than illustrations of the application of the relevant principles. Conventionally, those principles required the application of two tests: (a) the method and degree of annexation; and, (b) the object and purpose of annexation. Generally, the second of those tests was taken to be the more significant and could enable a court to decide when an object was a chattel, or a fixture, or was part and parcel of the land itself. Many different tests had been suggested, such as whether the object which had been fixed to the property had been so fixed for the better enjoyment of the object as a chattel, or whether it had been fixed with a view to effecting a permanent improvement of the freehold. That, and similar tests, were useful when one was considering an object such as a tapestry, which might or might not be fixed to a house so as to become part of the freehold: Leigh v Taylor [1902] AC 157 and Elitestone Ltd v Morris [1997] 2 EGLR 115 considered.
Applying the conventional tests in the present case, it was material that the sculpture was an entire object in itself. It rested by its own weight upon the ground and could be (and was) removed without damage and without diminishing its inherent beauty. It might adorn or beautify a location, but it was not in any real sense dependant upon that location. The sculpture’s power was no greater in Stepney than in Cologne or Melbourne. The sculpture did not form part of an integral design of the Stifford Estate; and whilst it must have been intended to confer some benefits upon the residents, it conferred equal benefits upon anyone passing by. Upon an objective consideration of all of the circumstances of the case, the sculpture remained a chattel. That outcome was consistent with the application of the relevant principles in cases such as D’Eyncourt v Gregory (1866) LR 3 Eq 382 (subject to the criticism in Re de Falbe [1901] 1 Ch 523) and Berkley v Poulett [1977] 1 EGLR 86.
(2) A single local authority discharged many functions and, in the discharge of those functions, had to point to some statutory power which enabled the function to be discharged. The LCC had acquired the sculpture in the exercise of its function under its Patronage of the Arts scheme and had bought the statue in discharge of its cultural and educational responsibility to do what it reasonably could to encourage and assist in the provision of works of art, in the exercise its power under section 157 of the Local Government Act 1939. When the housing accommodation which comprised the estate passed to the claimants, the sculpture remained vested in the GLC. It was not a fixture, although it had been in place for over 20 years by the time of the transfer to the claimants. When the GLC was abolished, the sculpture vested in the London Residuary Body (now the defendants).
On the facts found, the defendants’ title had been extinguished. The conduct of the claimants in relation to the statue had been inconsistent with the rights of the defendant as owners. The conduct was deliberate and had been so extensive an encroachment on the defendants’ rights as to exclude them from the use and possession of the sculpture. It was not necessary for the claimants to have formed a subjective intention to deprive the defendants of their rights as owners; there need not be any knowledge on the claimants’ part that the sculpture belonged to someone else. If the claimants manifested an assertion of rights of dominion over the sculpture which was inconsistent with the rights of the defendants, they committed the tort of converting the sculpture to their own use. By section 2 of the Limitation Act 1980, an action founded on tort was not to be brought after the expiration if six years from the date on which the cause of action. By section 3(2), where a cause of action in respect of the conversion of a chattel had accrued after the period prescribed for bringing the action had expired without the owner recovering possession of the chattel, the title of the owner was extinguished. Accordingly the sculpture now belonged to the claimants: Kuwait Airways v Iraq Airways [2002] UKHL 19; [2002] 2 AC 883 applied.
Nigel Giffin QC and Christopher Knight (instructed by Tower Hamlets London Borough Council Legal Services Department) appeared for the claimants; Timothy Straker QC and Dilpreet Dhanoa (instructed by Trowers & Hamlins LLP) appeared for the defendants.
Eileen O’Grady, barrister
