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Council secures continued prohibition on art installation where fibreglass sharks make speeches, sing song

A group of fibreglass sharks that make speeches and perform a popular French song are at the centre of a legal battle involving the London Borough of Hackney.

Hackney took High Court action against The Architecture Foundation, architectural firms Shiva, Antepavilion and Barker Shorten and two sets of persons unknown involved in the art installation Sharks!, which a judge has now said must be removed.

An interim injunction preventing the installation next to the Regent’s Canal was granted by Johnson J on 20 August and Hackney asked Mr Justice Murray to continue its prohibitory provisions, although the Architecture Foundation was dropped from this after it withdrew from involvement.

Sharks! was the 2020 winning entry of the annual Antepavilion Competition, and designer Jaimie Shorten said it would comprise several fibreglass sharks on a raft in a compositional arrangement that followed The Raft of the Medusa by Théodore Géricault.

The sharks would sing Charles Trenet's La Mer in harmony and in French “as a poignant reflection on the UK leaving the EU”.

Each shark would also deliver “a lecture on important themes in contemporary architecture and urbanism”.

Hackney discovered that installation was imminent but lacked planning permission and sought to prohibit this through the interim order.

At the new hearing it also sought mandatory relief requiring Shiva to remove what it had so far installed.

Planning officer Patrick O’Connor visited the site and noted three model sharks on a pontoon in the canal with their heads and mid-bodies, in a ‘breaching’ position.

In London Borough of Hackney v Shiva Ltd & Ors [2020] EWHC 2489 (QB) Mr Justice Murray said Hackney relied on section 222 of the Local Government Act 1972 for an action it considered expedient for the promotion or protection of the interests of residents and on section 187B of the Town and Country Planning Act 1990, which gave it powers to apply for an injunction to restrain an apprehended breach of planning control.

Shiva argued that the site had been used for art since at least 1995. Murray J said Hackney did not dispute this but felt Sharks! went beyond an acceptable ancillary use.

Hackney submitted to the court a Guardian article from 18 August 2020 titled “Sharks! Why are five man-eaters being unleashed into a popular canal?” which quoted Shiva director Russell Gray saying: “We don't do planning or regulations, or any of that bollocks.”

It said Mr Gray had “a long record of baiting the authorities” having once parked a tank in Southwark with its gun pointing at planners' offices.

Mr Gray told the court the article misrepresented him and was "the subject of a defamation dispute with the Guardian" and that the judge should entirely ignore it, though Murray J said there was nothing improper in its submission.

The court heard from Mr O'Connor that Sharks! was “an alien feature in this location that affects the setting of Haggerston Bridge, which is significantly harmful to the overall experience of the surroundings in which the heritage asset is experienced” though conceded that the cumulative harm caused by the musical sharks was “less than substantial” to the Regent's Canal Conservation Area.

Sharks! would occupy up to 61m2 of the waterway potentially hindering navigation and impede public access to a towpath, while amplified performances by the sharks of La Mer might “impact adversely on the residential amenity of nearby occupiers.

Murray J said: “It is not the court's role in relation to this application to attempt to resolve this tension between the perceived public goods produced by planning law, its implementation and enforcement, on the one hand, and aesthetic freedom and aesthetic diversity, on the other hand.

“But it is relevant background that the Sharks! installation is intended to test and challenge the planning process, responding to the 2020 Antepavilion competition brief.”

He said Sharks! current partial installation was "unsatisfactory for both parties” but found there was no need for injunctive relief to extend to unknown persons.

The judge ordered that the installation of Sharks! was prohibited until planning consent was granted.

Mark Smulian