Applying construction legislation to art installation works

We are often asked to consider contracts for the installation of substantial pieces of public art, either installed to support a wider development or simply as a standalone piece. Often, the installation of larger pieces of art may require substantial construction works to support or manufacture it. This raises interesting questions about how English construction law applies to art. 

This note examines how construction legislation applies to the construction and installation of artistic works, providing guidance on the application of the Construction (Design and Management) Regulations 2015 (the CDM Regulations), the Building Regulations 2010 (the Building Regulations) and the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act). As it concludes that there will often be uncertainties, it also outlines some strategies for managing the risks associated with this legislation.

CDM Regulations

The CDM Regulations apply to all construction and engineering projects in the United Kingdom, governing health, safety and welfare on site throughout the project and regardless of the size of the project. The CDM Regulations require duty holders (including commissioning clients) to discharge specific responsibilities in order to promote the health and safety in the design and construction of built structures. The CDM Regulations are policed by the Health and Safety Executive (HSE), which is able to impose criminal sanctions in case of breach.

The CDM Regulations apply to activities relating to structures. Structure is defined in quite specific terms, most of which are irrelevant to this article, but includes any building, timber, masonry, metal or reinforced concrete structure, or anything deemed similar. This legal test is unfortunately imprecise, and must be considered on a case-by-case basis before a conclusion is possible, but there clearly will be circumstances in which the CDM Regulations apply to substantial pieces of public art.

The difficulty is compounded by specific threshold tests, which affect how the regulations apply:

• The client must notify the HSE of a project, if it is scheduled to last longer than 30 working days and have more than 20 workers on site at any point, or if they are likely to involve more than 500 person days in total.
• Additional obligations apply where it is reasonably foreseeable that there will be more than one contractor involved on the project. A nuance here is that, for these purposes, contractor includes sub-contractors so if it is likely that a sub-contractor will support the main contractor, the threshold test is met. Where this test is met, the commissioning client has additional obligations to appoint a principal designer and a principal contractor. These are statutory appointees, essentially responsible for managing health and safety during the design phase and construction phase respectively.

Whilst there is no doubt the regulations play a critical role in safeguarding health and safety in the construction industry, it is perhaps not unfair to say that these tests are complex, and on some occasions quite marginal. That complexity may lead to errors concerning whether and how the regulations will apply.

It is equally challenging for us to give generic proposals about how to respond to any such uncertainty. A cautious approach is probably to assume that the regulations will apply, and to incorporate contractual terms which ensure that the regulations (if they do apply) are fully satisfied. However, the client should be mindful that if it notifies the HSE that the regulations do apply, it will be effectively setting the position; accordingly, it may wish to obtain specialist advice in advance of taking that step.

Building Regulations

The Building Regulations apply to all building work in England and Wales and have recently been expanded by the Building Safety Act 2022 and subsequent secondary legislation. Like the CDM Regulations, the Building Regulations now also require duty holders to discharge specific responsibilities, but in relation to compliance with building regulations rather than health and safety.

Broadly, building work requires the construction of or modification to a permanent or temporary building. Unlike the CDM Regulations, this specifically excludes other structures, so whilst it is less likely that pieces of built artistic work will fall under the scope of the Building Regulations, any artistic work that can be considered a building itself, or modifies one, will fall under the scope of the Building Regulations.

Like the CDM Regulations, where the Building Regulations apply, they require that parties are appointed to the roles of client, principal designer and principal contractor. The requirements for making the appointments are less prescriptive than under the CDM Regulations, and simply state that the appointments must be made in writing. The threshold for determining whether a party is suitable for the role is simply that they are deemed “competent” and they may be the same person appointed under the CDM Regulations.

Construction Act

The Construction Act was introduced at the latter end of the last century, and has had a dramatic impact on payment processes and dispute resolution processes in the construction industry. When it applies to a contract, the Construction Act regulates payment practices, and gives parties the right to refer a dispute to adjudication at any time. It is not legally possible to incorporate terms to disapply the Act – in that sense, the legislation is effectively compulsory.

The Construction Act applies to any construction contract, which is defined as an agreement to carry out construction operations in the United Kingdom. Construction operations is defined in a similar way to the CDM Regulations to cover works relating to construction, alteration, repair, maintenance, extension, demolition, dismantling and also installation, cleaning and decorating activities in buildings or structures. Clearly, the completion of more substantial items of artwork may require these activities.

However, there is a specific exclusion for works which involve "the making, installation and repair of artistic works, being sculptures, murals and other works which are wholly artistic in nature [our emphasis]".

Accordingly, the Construction Act will likely not likely apply where the works are wholly "artistic" in nature. This will be obvious in some situations, but it is not hard to imagine more marginal situations where it is not obvious whether an installation is truly artistic or not. Unfortunately, there is no specific statutory guidance on what artistic might mean in this context, but a decision of the House of Lords in 1976 may offer some guidance on how the courts would approach this.

In George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] A.C. 64, the House of Lords commented that a court should not make a judgment about the aesthetic value of a piece, and instead suggested that a work would be considered artistic if a substantial section of the public admired it for its appearance and got pleasure or satisfaction from it. The court also suggested that it was key to determine if the author of the work intended for it to be a work of art.

The more recent case of Waterrower (UK) Limited v Liking Limited (T/A Topiom) [2024] EWHC 2806 (IPEC) emphasised this latter point; considering the proposed requirement set out in Hensher for the craftsman to have the desire "to produce something of beauty which would have an artistic justification for its own existence" in order for a design to be deemed an artistic creation rather than a "commercial development".

Taking that guidance into account, we would expect a court to take a relatively inclusive approach to this issue, in order to give full effect to the exclusion, and in particular, we think it most unlikely that a court today would entertain philosophical arguments about whether a piece truly is art. Rather, they would look at the intention of the parties involved.  

That may not be the end of the matter, however, where elements of the works are evidently not artistic. In these cases, the safest practice would appear to be to include contractual clauses which comply with the Construction Act, purely to avoid a lack of clarity in the event of a dispute. Some of the Construction Act’s provisions may be out of place in the context of a contract for artwork, but it is usually possible to moderate the effect of any legal idiosyncrasy by skilful drafting.

Key takeaway

These are challenging issues, with potentially significant outcomes turning on occasionally inconclusive statutory definitions. Where there are uncertainties, it will often be preferable to acknowledge the uncertainties in the contract, and ensure the contract is compliant in all events.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2026