A Sydney artist is threatening legal action against a local council for breaching his "moral rights" as an artist under the Copyright Act 1968 (Cth). In 1993, Victor Cusack installed the water-clock in Hornsby Mall. At the time, Hornsby Council paid Cusack $500,000 for the work. The sculpture was to be a fountain with an operational water clock but has since stopped working. The Council claims that it is simply too expensive to maintain and would "waste thousands of ratepayers' dollars" to fix. Cusack, on the other hand, says that "All it needs is to be cleaned up and adjusted....." 1. The artist says that his reputation is being damaged.

The dispute raises interesting points about the maintenance of public art and the obligations that Government has, both to the artist and more broadly, the public. For example, how much money should be spent on public art? How much should be spent on maintenance? Who makes such decisions on behalf of Government, and should there be wider transparency and community consultation?

Use of public art in development

There has been an increased use of public art in our city scapes, both as part of new developments as well as in existing suburbs. An example of such art is Float by Susan Milne and Greg Stonehouse installed at The Ponds in western Sydney 2. In addition, many local Councils and Government agencies have policies on public art and its use in new developments. For example, City of Sydney Council has released its City Centre Public Art Plan as part of the Council's contribution to the NSW Government's light rail project.

But who will maintain?

The Hornsby water-clock case raises interesting questions about maintenance obligations in the longer term.

Particularly in the context of new development, artworks can often be commissioned and installed by developers under a requirement of a planning agreement. Maintenance obligations can be negotiated with the developer, but may only be for a fixed time period after the development has been completed, after which the relevant council or agency will be responsible. In the longer term therefore, Government agencies need to consider whether they have the capacity to take on maintenance obligations and to what standard the artwork needs to be maintained.

Public art may also be funded by Councils through Section 94 contributions. When Section 94 contribution plans are drafted, sufficient funds for not only the construction of the artwork but its long term maintenance should be included.

Issues may also arise where, for example, different groups within an organisation are responsible for certain aspects of project delivery. For example, the commissioning of the artwork, the management of the project delivery and the maintenance of the artwork might be undertaken by different teams within Government agencies. This may present challenges around how best to plan for and co-ordinate each life stage of the artwork well before any construction commences.

Although the benefits of public art are not disputed, the cost of maintaining artworks and whether these costs should be funded by taxpayers, may be questioned. Therefore, long-term asset planning needs to be undertaken at the early stages of projects, together with ensuring that appropriate funding is allocated for the maintenance of public art. Certainly, knowledge about artwork maintenance needs to be discussed with the artist in the early stages, as well as sourcing appropriate contractors who have the ability to undertake such maintenance works.

Footnotes

1 ABC News" Hornsby Council could face legal action over letting famous water-clock fall into disrepair" dated 4 October 2015 [http://www.abc.net.au/news/2015-10-03/hornsby-water-clock-allowed-to-fall-into-disrepair/6825584]

2 Public Art Guidelines Fact Sheet, Urban Growth NSW [http://www.landcom.com.au/downloads/uploaded/FINAL_Public_Art_Guidelines_Fact_Sheet(3)_8d6d_e877.

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