Public art contributions and the statutory tests

A public art contribution planning obligation is only lawful as a reason for granting permission if it passes the three tests in regulation 122 of the Community Infrastructure Levy Regulations 2010. It must be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. A percentage of build cost, demanded because the adopted plan contains a percent for art policy, frequently fails the first test and sometimes fails the third.

That is worth knowing before you budget for it, because the sum requested on a large scheme is rarely trivial and the negotiation is usually winnable in part.

Where public art requirements come from

Three sources. The adopted local plan may contain a policy requiring public art on major development, often in the design chapter. A supplementary planning document may set out how the requirement is calculated and delivered. And a design code or masterplan framework for a strategic site may fix public art as a design expectation with locations marked.

National policy supports the general idea without requiring contributions. The Framework's design policies and the National Design Guide treat art and identity as part of placemaking, which is a reason to integrate art into a scheme, not a basis for a cash obligation.

Where the authority charges the Community Infrastructure Levy, check whether public art appears in its infrastructure funding statement or its list of intended spending. The levy is meant to fund infrastructure, and an authority that collects levy receipts towards public art cannot also require a section 106 contribution for the same item without running into double charging.

The percentage based request

Percent for art policies calculate the obligation as a proportion of construction cost. The percentage varies between authorities and is set out in the adopted policy or its supporting document, so read the actual wording rather than accepting a figure quoted in an officer's email.

Two things to check in that wording. First, the cost base: whether the percentage applies to total construction cost, to above ground costs, to the gross development value, or to some narrower measure. The difference between those bases on a 200 unit scheme is substantial. Second, whether the policy is expressed as a requirement or as an expectation, and whether it contemplates on-site delivery as an alternative to payment.

A percentage is a blunt instrument for the scale and kind test. The obligation has to be fairly and reasonably related in scale and kind to the development, and a mechanical percentage takes no account of the development's actual effect on the streets and spaces around it. That argument has real force on schemes where the external space is small or where the art would sit remote from the site.

Testing necessity under regulation 122

Necessity is the hard limb. Ask the authority to identify what makes the development unacceptable in planning terms without public art, and what the art does to make it acceptable. On a scheme that already delivers good quality open space, landscaping and legible routes, there is often no honest answer.

The distinction is between mitigation and betterment. A contribution towards a play space the development's child population will use is mitigation. A sculpture at the entrance to a business park is betterment that the authority would like, and policy support for betterment does not convert it into a necessity.

Where the authority cannot articulate the necessity, the obligation cannot lawfully be a reason for granting permission, and an inspector asked to consider it on appeal is entitled to disregard it. Put the regulation 122 analysis in writing, obligation by obligation, with the heads of terms. The pooling restriction that used to sit in regulation 123 was removed in 2019, so the argument now turns on the three tests alone.

On-site delivery against a commuted payment

Where a contribution is justified, on-site delivery is usually better for the developer and for the scheme. You control the brief, the budget goes into something visible on your site, and the obligation discharges on completion rather than sitting as a cash liability.

The arguments for a payment are narrower. It suits small sites with no plausible location, schemes where the authority has a wider street improvement programme the money can join, and situations where the developer has no appetite for managing a commissioning process. Where a payment is agreed, pin down the trigger, the index used for any uplift between permission and payment, and a clawback if the authority does not spend it within a defined period.

Cost allocation matters in the appraisal. A public art sum is a scheme cost like any other and belongs in the development appraisal alongside the obligations it sits beside, which our note on viability appraisal submission format sets out, and the same discipline applies to the highway works treated in highway works costs in a development appraisal. Where the total obligations package makes the scheme unviable, a Viability Assessment is the mechanism for saying so, and public art is among the first items to fall away when a viability case is accepted.

Commissioning, maintenance and the long tail

An on-site scheme creates obligations that run for decades, and the section 106 drafting should deal with each of them.

1. The brief and the selection process, including who approves the artist and on what criteria.
2. The location, agreed on a plan, with the planning condition or obligation referencing that plan.
3. Structural design and, where the piece sits in or beside the highway, the highway authority's approval and any adoption or licence.
4. Installation and the completion certificate that triggers discharge.
5. Maintenance: who does it, to what standard, funded how, and for how long.
6. Insurance and the position if the work is damaged or stolen.
7. Decommissioning and removal rights at the end of the work's life.
8. Intellectual property, including the artist's moral rights under the Copyright, Designs and Patents Act 1988, which include a right to object to derogatory treatment of the work.

The moral rights point catches management companies out. An artist retains rights that can constrain alteration, relocation or removal of the piece, so the commissioning contract has to address it and the obligation should not promise something the contract cannot deliver.

Illustrative example: a 180 unit scheme faces a public art request of £90,000 calculated as a percentage of build cost. The developer proposes instead an integrated commission of £55,000 in the central square, with a specified maintenance sum for 15 years, and argues that the remainder fails the necessity test given the landscaping already secured. Figures are illustrative only.

Where the request should be resisted

Resist where there is no policy in the adopted plan, only a supplementary document or an officer's practice. Resist where the authority collects the levy and public art sits within its intended spending. Resist where the art would be delivered off site in a location unconnected to the development. And resist a flat percentage on a scheme whose contribution to the surrounding streets is already substantial, on the scale and kind limb.

Do it in writing, politely, with the regulation 122 analysis attached and an alternative offer. Officers have to defend obligations in committee reports and at appeal, and an officer who cannot write the necessity sentence will usually negotiate.

Getting value from an on-site scheme

If you are going to spend the money, spend it where people will encounter the work daily: a route junction, a square, a threshold, a play area. Commission early enough that the artist can influence the landscape design rather than decorating a finished scheme. Describe the strategy in the Design and Access Statement with the location shown on the layout, because an authority that can see the proposal in the submission asks for less in the obligation.

And accept one piece done properly over three done thinly. Authorities remember the scheme, and the next application in the borough is easier.

Write the regulation 122 analysis before you accept the heads of terms. Enter your postcode on PlanScope to see which documents your scheme is likely to need.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it.