Do sculptures really need development approvals & building permits? At what cost?

DocImage264A large outdoor sculpture in a small Australian country town has faced more than its fair share of debate over the past two decades.

The sculpture, known as ‘Dreamer’s Gate’, provoked a series of complaints from members of the local community and earned itself multiple stop work notices and a demolition order.

It ended up in the NSW Land & Environment Court where it raised serious questions about the extent to which ‘sculptures’ are simply ‘developments’ and ‘non-habitable structures’ for the purposes of local planning laws and building codes.

The facts are that ‘Dreamer’s Gate’ is located on private land and was unlikely to discourage tourism or to result in significant environmental or social harm (as long as any structural safety risks were addressed). Many people actually expected it to bring benefits by restoring the wetlands on the property and drawing visitors to the town.

As such, this case requires that we ask ourselves whether overly onerous administrative processes and regulatory barriers have the potential to stifle creativity, undermine artists’ and land owners’ rights, and cause us to miss out on or destroy important works of art.

About the sculpture

‘Dreamer’s Gate’ is located in a small village in New South Wales in between Goulburn and Canberra. It is around 7m high and 26m long and is set back 10m from the front boundary of the property on the main road through Collector.

It comprises a ‘skeleton’ of galvanized wire that is set into deep concrete footings and covered with a ‘skin’ of hessian, plaster, chicken wire, steel reinforcing mesh, mirrors and a final layer of cement render.

(Check out this great youtube video about the sculpture – here)

DocImage265

When I first saw the work in the mid 1990s, I was struck by its intricacy, scale and the way it related so clearly to its surroundings – by framing and mimicking the dead trees in the distance and reflecting the sun and blue sky behind me (even though the background to the sculpture was grey and overcast).

CCF24062014_00000The artist, Tony Phantastes, had begun the sculpture in 1993 – soon after his father’s death and the subsequent sale of the family farm in South Australia. It was intended to be the decorative facade of a studio and gallery for which he had already obtained development consent.*

After working alone at the site from early in the morning until late at night for a number of years (just as his father had done on the farm), Tony was surprised when the Council inspected the site and declared that the structure had been erected without approval.

A long and expensive battle 

IMG_3838The owners of a neighbouring property had apparently complained to the local council that the sculpture was unsafe and unsightly. They also alleged that the sculpture was illegal and that building materials stored at the site and the long grass could harbour snakes and vermin.

A nearby business followed suit with concerns about compliance with building codes, safety and visual amenity. They argued that the sculpture should be reduced in height or made more open so as to not obstruct the view from their property as this might impair their commercial prospects.

In addition, they felt that the site should be more securely fenced off to improve public safety.

Tony complied with requirements to screen the stored materials and raise them off the ground, and undertook remedial work to brace the structure from behind (as the studio and gallery had not yet been built).

IMG_4127He also started work on an elaborate fence – only to discover that it required separate approval under the Council’s Development & Construction Policy as some sections were higher than 1.2 metres!

Tony fought hard over many years to protect his work but this came at great personal and financial expense. During this time he was forced to seek extensive legal and planning advice and to engage a structural engineer to verify that his work was safe and structurally sound.

Despite Tony’s efforts to comply with the requirements and resubmit planning applications and other documentation etc, the opposition from a vocal and powerful minority continued to place pressure on the council to take further action and pursue other legal avenues to remove the structure.

Fortunately, sense prevailed and the NSW Land and Environment Court lifted the demolition order in 2000 subject to agreement about securing the structure. 

IMG_3609The judgement determined that the sculpture and associated works were compatible with the character and amenity of the village zone and had the potential to provide economic benefits (especially if other businesses were willing to cooperate).

Most importantly, the court upheld the right of people to enjoy their property (and build on it what they want within reason) as long as they protect their neighbours’ reasonable interests and do not cause noise, dust, vibration or other forms of pollution that may constitute ‘unreasonable external nuisances’:

“the common law does not recognise any rights to maintain a view, freedom from being overlooked or exposed to unsightly accumulations of scrap or rubbish or preservation of any other desirable environmental features outside the land owners’ boundary” [unless a covenant to that effect is in place].   

Despite the win, Tony was ordered to pay over $30,000 of the Council’s legal costs (as well as his own).

Most artists would not have been able to stand their ground for so long against such a relentless attack.

As it is, Tony has moved away and has left the work unfinished. His work is slowly decaying as the wind and rain act upon the exposed steel and the weeds seek to regain control.

  • To what extent do land use zoning and other planning regulations apply to sculptures?
  • When is a sculpture considered to be a ‘non-habitable structure’ under the building code? Is size the key criterion?
  • Should the burden of proof be on the artist to prove that their work is structurally sound or on the objectors to prove that it is unsafe?

Why should artists obtain relevant planning approvals and building permits?

Failing to obtain the necessary approvals or to erect illegal or unauthorised structures may expose artists and property owners to legal action.

Penalties may include fines, expensive legal and other professional fees, modifications to art works that affect their artistic integrity, demolition orders, prosecutions and sometimes even jail.

For example, in 1982 a sculptor was sentenced to jail for five days in California for being in contempt of court after he refused to obtain the mandated building permits for four large steel sculptures outside his welding shop.

jeanne-claude-und-christo-verhullter-reichstagIn contrast, Christo and his wife, Jeanne-Claude, went to great lengths to obtain permission to stage their spectacular large scale installations, such as wrapping buildings, bridges and coast lines in fabric.

And their 1976 project ‘Running Fence’ was apparently the first work of art to have an environmental impact statement (EIS) – even though it was only in place for two weeks:

“By federal law, all big projects … require an environmental impact assessment study to analyze changes in the social structure of that place—everything from traffic to garbage, to visitors, to people living there, the noise, the dust, the birds, the bees.”

By 2004 they had successfully created 18 major outdoor projects and had tried, but failed, to obtain permission for an additional 38 projects.**

Their detailed studies and life-sized tests ensured that they knew exactly what each work would look like and how it would be constructed in advance. This gave them the opportunity to negotiate access and safety issues, and identify and address any potential environmental impacts etc.

However, these bureaucratic processes caused long delays and cost hundreds of thousands of dollars.

And, unfortunately, obtaining the relevant approvals and permits does not guarantee that a sculpture or other outdoor work of art will be protected from destruction or other indignities.

For example, a large outdoor stainless steel sculpture entitled ‘Symphony #1’ by Jan Martin was demolished as part of an urban renewal project in Indianapolis – even though the artist had received permission to erect the sculpture on private land and been promised time to move the demountable sculpture if it was ever under threat.

Martin launched a successful court action on the basis that his ‘moral rights’ had been violated under legal protection afforded by the Berne Convention and ratified in the United States of America via the Visual Arts Rights Act (VARA) in 1990. The court’s decision in this case noted that:***

“an artist’s professional and personal identity is embodied in each work created by that artist. Each work is a part of his or her reputation. Each work is a form of personal expression (oftentimes painstakingly and earnestly recorded)… The author of a work of visual art … shall have the right … to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

IMG_4292Closer to home is a controversial abstract minimalist sculpture that graced Melbourne’s City Square for a short time in 1980. ‘Vault’ (aka ‘Yellow Peril’) by Ron Robertson-Swann was soon after moved to a seldom-visited site where it wallowed in relative obscurity until it was relocated to a more prominent site near the Australian Centre for Contemporary Art at Southbank in 2002.

At that time, Robertson-Swann observed that “artistic freedom [was] slowly being squeezed by the conditions that councils, corporations and community groups [were] putting on artists before they allow a piece of public art to be installed on their turf” but did not agree that artists should be given carte blanche.

Supporters continue to push for Vault’s reinstatement to its original location. However, its creator acknowledges that this decision rests with the city. Perhaps he is relieved that the sculpture was not destroyed during the time it took for the city to appreciate his work?

  • Should artists be required to invest significant amounts of time and money to obtain planning and building permits – even if there is little or no risk to public safety or adverse environmental impact?
  • Should different requirements apply if an artist is working on private land? Or if the work is only a temporary installation, rather than a permanent structure?
  • How much freedom should artists have to implement their vision?
  • Is it realistic for the average artist to know exactly what their artwork will look like and how it will be built in advance? Does this unreasonably restrict self expression and originality?
  • Should artists be allowed to seek retrospective permission or is this likely to encourage non-compliance with local planning regulations?
  • Should third parties be allowed to lodge objections when there is no risk to public safety or nuisance?
  • What moral and legal rights are available to artists so that they can protect their works of art?

The aftermath 

IMG_3846

Tony’s original aim had been to inspire debate and reflection about past and present agricultural practices in Australia and on life and death – not about planning law.

Not easily discouraged, Tony still hopes to complete the sculpture and to expand it by an extra 8m to form a gateway entrance to the gallery (the so-called Dreamer’s Gate).

In the meantime he continues to create ‘phantastic’ artworks on the NSW north coast.

It amuses me that the controversy over its right to exist may have made this sculpture better known than it might otherwise have been. And its allure may have been enhanced by its being unfinished and seemingly abandoned.

IMG_3588(Perhaps Dreamer’s Gate can even claim to be more infamous than the bushrangers after which the pub across the road was named?)

But most importantly, ‘Dreamer’s Gate’ reminds us about the really valuable role that art plays in allowing people to express themselves, inspiring debate about important issues, and challenging the status quo.

As another blogger and artist wrote about ‘Dreamers’ Gate’ (here):

“… this is what real art feels like. It does not seek permission, it does not ask to be loved, it does not strive to be beautiful, or clean or neat. It is not made quickly, or to direction. It is not normal, or safe. It does not even make sense. It is an idea that grows so slowly no-one can pin-point where it came from. And as the slow growing goes it will never be complete. It is hard. It is difficult. It is thankless. It will send you broke and into debt. And none of that will matter because it’s just something that you do, sure as blinking and breathing, while everywhere people tell you no and ask you why.”

What should we learn from this case?

IMG_3830It seems crazy that councils all across Australia commission artists to create works of art that add interest to their public spaces while this small town (with few other notable attributes) seeks to demolish such a unique and intriguing sculpture that has been erected at the artist’s expense on his own land.

Regardless of how committed artists are to their work, their passion and resources are not drawn from a bottomless pit and there is a point at which they will stop fighting and pushing the boundaries.

Where possible and appropriate, we should remove unnecessary red tape and help artists to navigate complex bureaucratic processes and to fight against members of the public who try to use planning and other legal technicalities to thwart creativity and individuality.

Otherwise we may be swamped with towns and cities that are totally devoid of character and beyond hope.

  • Do we have effective policies and legislation in Australia to protect art works from destruction and local planning disputes?
  • Should we have double standards in the case of art – and if so, who gets to judge that a particular work is worthy of special treatment?
  • What is the opportunity cost to society if artists decide that it is not worth the risk or effort involved in obtaining the necessary administrative permits for their proposed artworks and simply can’t be bothered to do what they do any more?

******************

* Unfortunately, the sculpture inadvertently became a memorial to Tony’s eldest son (whose face had been incorporated into the original design). He died tragically in the midst of the legal battles.

** See here for details. Christo and his wife’s ‘Over the River’ project to suspend fabric above nearly 68km of the Arkansas River was conceived in 1992 and and has still not been approved. Wrapping the Reichstag in Berlin required parliamentary approval.

** There was a dissenting judge in the Symphony #1 case who offered the following warning about risks associated with VARA:

“For now, however, those who are purchasers or donees of art had best beware. To avoid being the perpetual curator of a piece of visual art that has lost (or perhaps never had) its luster, the recipient must obtain at the outset a waiver of the artist’s rights under VARA… Before awarding building permits for erection of sculptures, municipalities might be well advised to obtain a written waiver of the artist’s rights too. If not, once destroyed, art of questionable value may acquire a minimum worth of $20,000.00 under VARA.”

Sources:

Photo credits:

  • Jeanne-Claude & Christo’s Wrapped Reichstag 1995. Made available by jotefa via Flickr on 23 Feb 2012 & a CC BY-SA 3.0 Licence
  • ‘Dreamers’ Gate’ sketch & working drawings – Tony Phantastes – Reproduced with permission. All rights reserved
  • All other images – Pip Marks (1995 & 2014)


Categories: Art, Environment, Uncategorized

Tags: , , , , , , , , , , ,

8 replies

  1. These pieces look really interesting, and like they would weather to be even more so. I hope it gets resolved. I remember the controversy about ‘Tilted Arc’ in New York several years ago — http://en.wikipedia.org/wiki/Tilted_Arc

    • I’ve never heard about this one. Interesting that the artist was so adamant about it being site-specific that he refuses to have it re-erected anywhere else. Wiki says VARA came in the year after the trial so maybe it would not have been removed after that or perhaps he would just be given compensation? I also note one of the comments about whether “public spaces and public funds are the right context for work that appeals to so few people – no matter how far it advances the concept of sculpture.” Thanks for the comment!

  2. Very interesting article. Planning grounds on ‘amenity’ or ‘views’ are not strong enough to justify a refusal or even a Show Cause Notice/Enforcement Notice. If the sculpture is built on private land with a reasonable scale (does not cause safety concerns), it should be alright from planning perspective… It is also unusual that Tony has won the case but has to bear Council’s legal cost…

    I agree that Council has to consider seriously about the proper assessment regimes or development standard for art works. They deserves greater protection. Council’s main consideration should be on public safety, rather than on views – too vague and subjective.

    • I probably should have mentioned that they settled out of court – so the judge only ruled on the motions re costs. Tony considers it a win as they agreed to withdraw the demolition order.

  3. I started to comment in this, and ground to a halt. I really don’t know to say, other than: wow, what a can of worms.

  4. This is an excellent article. You have really hit on an important point here – local councils and vocal minorities often get in the way of public art simply because it is new, they are invested in the status quo, and they want to exercise their power.

    Question: Do you think permission is required to make art out of naturally occurring materials at a site? For example, a large sandcastle on a beach made by rocks and sticks?

    • Thanks. I like to think that councils are also genuinely concerned about things like public safety, access & amenity etc, but am not sure about their role as arbiters of artistic expression & innovation. It would be a shame if the status quo always wins. Councils have a responsibility to listen to & manage the demands of vocal conservative minorities, as well as any groups in the community advocating change (& consequent risks). Sometimes the problem seems to rest more with councils being too cautious & unwilling to exercise their power. It takes a lots of guts to make an unpopular but visionary decision with an election on the horizon…
      Your interesting question triggers many of the issues raised by Tony’s sculpture but now you’re talking a temporary structure on public land, using materials from the site.
      It would depend on individual circumstances as some areas are more sensitive, but scale would be a factor. Surely noone would query a child’s right to build a small sandcastle and decorate it with a few shells and pieces of driftwood? Perhaps even a stick flagpole with a plastic or paper wrapper for a flag? The sea would no doubt reclaim it within a few hours and the only complaint might be littering. A bigger work might take a bit longer. However, moving rocks (esp if helping with erosion control or providing rock pools etc) and scrambling all over fragile dunes & removing or damaging natural habitat might rightly be frowned upon.
      There are lots of sand sculpting competitions and their rules seem fairly consistent and sensible. People register & agree to comply with the rules -which I guess is like seeking permission. Here’s an example from sunandseafestival.com:’s website:
      a) All form work must be removed prior to official end time.
      b) No use of adhesives or any type of preservatives allowed at any time.
      c) Any natural elements (ie. plant life, sea shells, etc.) can be incorporated into the design.
      d) Biodegradable color is allowed.
      e) Any non-native elements (not from the beach) must be approved by competition committee prior to start of competition.
      f) No use of power tools at any time prior to or during the competition.
      Does this align with your thinking? Do you have a particular case in mind?

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