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Planning Permission and Copyright - have you considered this?

View profile for Kay Evans
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Planning Permission can be applied for by any party to develop land. Once granted, the planning permission vests in the land itself pursuant to S.57 Town and Country Planning Act 1990. There are no statutory or other intellectual property rights in the planning permission itself; anyone may avail themselves of it so long as they satisfy its conditions.

Copyright however is a property right in an artistic work as defined in the Copyright.

Designs and Patents Act 1988. Artistic works include technical drawings/diagrams, architecture, maps, logos, photography, paintings, etc. The owner of the copyright has the exclusive right to deal with the artistic work and the court may award damages to the owner in an action for infringement.  

In an age where it is very easy to download planning documents from the Planning Portal online, we should all be mindful of breaching copyright.

For our developer clients, it is really important when dealing with sites that have the benefit of an existing planning permission obtained prior to acquiring the land. Copyright could be breached when:-

  • Producing marketing materials for development sites
  • Submitting minor material amendment applications for sites
  • Using existing drawings for tendering and estimating purposes
  • Making AutoCAD versions of the design drawings
  • Constructing a building in accordance with the design drawings
  • Producing “as-built” drawings of projects

The recent High Court Case of Signature Realty Ltd v Fortis Developments Ltd and another [2016] EWHC 3583 (Ch), 17 February 2017 highlighted an infringement in copyright in an architect’s drawing using the ‘as-built’ drawings which had been produced.  

In this case, the claimant property developer who obtained the planning permission was not the developer who built the building. The case concerned an assignment of copyright to the claimant in order to institute proceedings against a developer. This included the right to sue for back damages where a planning permission had been enhanced.

The case demonstrates the tricky line between benefiting from a planning permission attached to land and infringing copyright in the drawings that form the basis for that permission.

The court found that Fortis had infringed the copyright which vested in Signature but refused to grant an injunction. Instead damages were to be awarded in the absence of any agreement between the parties. 

What action can you take to avoid this happening to you?

Usually a licence to the original party who paid for the drawings to be prepared is set out in the client care letter from the architect to the original client. When purchasing land with the benefit of planning permission, you should ask to see a copy of this letter of engagement.

If you are purchasing land directly from a party who obtained planning permission, the Court of Appeal has held that there is an implied licence to the client who engaged the architect. This licence is to use the drawings for all purposes connected with the erection on the site of the development to which the plans relate, and that the client can transfer that licence to a purchaser of the site. (Blair v Osborne Tomkins [1971] 2 QB 78)

When purchasing land with the benefit of planning permission obtained by a third party you should:-

  1. Obtain an assignment of the copyright or obtain a copyright licence to use and or re-produce the work from the architect
  2. Not copy any “substantial part” of any work without an assignment of copyright or licence to use
  3. Not ignore any notice advising that you are breaching copyright and seek advice in these circumstances