Purchasing with the benefit of planning permission: copyright laws

Posted by Elizabeth Cooke-Smith on
Buyers should take care when purchasing a site with the benefit of planning permission from a seller who is not the applicant of the planning permission. Although there is no copyright in planning consent, the seller may be unable to transfer the property to the buyer with the copyright.

In a recent case, Signature Realty Limited v Fortis Developments Limited & another [2016] EWHC 3583 (Ch), the High Court found that the developer (who purchased the property with  planning permission) did not have the rights to use drawings prepared by the architects with the planning application.

The claimant, Signature Realty (Signature), didn’t own the site but had exchanged contracts with the seller. Signature appointed architects and applied for planning permission to convert the property into student accommodation, planning permission was granted however Signature failed to complete the transaction due to a lack of funds. The seller's agents found another buyer, Fortis Developments (Fortis), with whom the transaction advanced.

Fortis bought the property with planning permission on the terms the development was to be carried out in accordance with the drawings, as they were part of the original planning permission they could be obtained through the local council planning portal. Fortis commissioned their own architects to produce drawings that complied with the planning permission. The High Court held that in these new drawings parts of the originals had been copied and had been used for marketing and 'off plan' purchases.

The copyright of the drawings had been owned by the original architects that had been commissioned by Signature; subsequently Signature purchased the drawings so they could bring the case to court. The judge confirmed the copyright had been breached and that statutory damages could be granted.

It's easy to assume that because planning permission documents are available on a planning portal on the public domain they're readily available for use. However buyers who buy sites that benefit from planning permission need to ensure they have the rights to the drawings. Buyers should take an assignment of, or a licence to use the copyright for the purposes of construction. In conclusion there is a thin line between benefitting from planning permission and avoiding infringing copyright in the drawings. 

About the Author

Elizabeth is a Senior Solicitor in our Build Environment Team, specialising in development.

Elizabeth Cooke-Smith
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023 8085 7309

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