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Planning permission – check for copyright in architects' drawings
Real Insights - Property Update

Real Insights - Property UpdateIssue 17 | March 2017

Date
30 March 2017

Victoria Wilson Managing Associate

A recent High Court case is a timely reminder for property developers to ensure they have the right to use architects' drawings relating to their developments.


Planning permission – check for copyright in architects' drawings

A recent High Court case is a timely reminder for property developers to ensure they have the right to use architects' drawings relating to their developments. This is especially important if they did not commission drawings which form the basis of a planning permission they intend to rely upon.  

The case, Signature Realty v Fortis Developments, may also cause problems for residential purchasers buying a house with the benefit of (say) planning permission for an extension. 

In 2013, Signature Realty retained an architect to prepare drawings in order to obtain planning permission for a development site in Sheffield. Planning permission was duly obtained. The permission stipulated that the development should "be carried out in complete accordance with" the architect's drawings.  

However, the site was subsequently acquired by Fortis, who proceeded to develop the site in accordance with the permission. When Signature discovered what had happened, it sued Fortis for breach of copyright as the drawings had been used without permission.

The court decided that Fortis had infringed Signature's copyright in the drawings in a number of ways: (1) using them for marketing, tendering and estimating purposes; (2) making AutoCAD versions; (3) making altered copies; and (4) constructing the development in accordance with the drawings. 

Whilst the court declined to grant an injunction, Signature is now entitled to claim damages or an account of profits. The amount due will be assessed at a later date.

Comment

This case demonstrates that a planning permission is not the same thing as copyright in the drawings forming the basis of that permission.  

If a developer did not commission the drawings, it should obtain a licence (or assignment) from the copyright owner in order to develop the property in accordance with those drawings. Ordinarily, such a licence would come from the seller but, as happened in this case, developers should be aware that a third party could own the copyright.  

Commissioning new drawings (as Fortis in fact did) may not solve the problem. If the new owner is relying on the existing planning permission, then any new drawings are unlikely to be very different from the original drawings, so they may still infringe copyright. 

Unless developers have a licence from the copyright owner, they may have to incur expense and delay in obtaining a new planning permission based on different architectural drawings, and develop the site in accordance with those new drawings.