Planning permission – don’t turn a blind eye to copyright
Buying a land with planning permission is a bonus so going on to develop it is simple and straightforward, right?
Well, actually the answer is no, as a recent High Court decision shows, highlighting how easy it is for a developer to commit copyright infringement when developing land that is already the subject of planning permission.
It could be costly too. Although the damages for this particular case haven't yet been set, some legal observers believe the figure could be as high as £360,000.
Property development company, Signature Realty Ltd, was interested in buying a Sheffield city centre site and engaged an architect (C&W) to prepare drawings which were then used as part of its application to develop the site into residential apartments.
But Fortis Developments Ltd beat Signature in the race to purchase the site and by the time the sale was completed, Signature's application for planning permission was approved and the drawings posted on the local authority's website.
Fortis then used these drawings in the design, marketing and construction of the land it went on to develop as student accommodation, although it also engaged its own architects who visited the site and produced their own drawings.
However, because Signature had purchased the copyright for the design drawings from C&W, it issued legal proceedings against Fortis for infringement of this copyright and the High Court found in its favour.
It ruled that the new architects' drawings were sufficiently similar to the claimant's drawings because the build had to satisfy the conditions of the planning consent. That similarity was caused by copying, in a copyright sense, and so constituted an infringement.
How to avoid the same problem
This case illustrates the vital importance for developers of ensuring they get a licence to use any architects plans submitted with a planning application. The fact that drawings are made available to download and view on a planning portal, does not mean they are free for anyone to use.
In addition, before acquiring any land, check who owns the copyright in the designs and secure the clear written licence/consent/assignation of the true copyright holder before using the approved plans.
It is crucial not to turn a blind eye to copyright as this risks an infringement claim and liability for damages. Always make sure that you have the right to use any drawings included as part of the overall transaction from the start.
- Heather Jones is a commercial property specialist and Head of Business Services and Commercial Property.