Permission to (develop) land: don't be the architect of your copyright downfall

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

The English High Court has held in Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583 that the defendant’s use of architect drawings submitted by the claimant for the purpose of obtaining planning permission infringed the claimant’s copyright in the drawings.

Background

The claimant was a property development company formed to develop property in the UK, primarily for Middle Eastern investors. It saw an opportunity to develop a site in Sheffield city centre into student accommodation and agreed to purchase the site from the landowner. Contracts were exchanged and the claimant engaged architects with a view to obtaining planning permission. The architects retained copyright in the drawings they produced but granted the claimant a licence to use them (although the copyright was subsequently assigned to the claimant for the purposes of instituting proceedings). Planning permissions were granted for the site on condition that the development be carried out in accordance with the approved drawings. In line with usual practice, the planning application documents, including the approved drawings, were posted on the local authority's planning portal where they became available for public inspection.

The claimant was ultimately unable to fund the purchase and the landowner sold the site to the defendants, who completed the development as student accommodation and sold it to a third party. The claimant considered that the defendants had wrongfully used the drawings during the promotion, marketing and construction of the development and claimed damages for copyright infringement under the Copyright, Designs and Patents Act 1988.

The main issues were whether (1) the planning permission "belonged" to the claimant, (2) the drawings were sufficiently original to attract copyright and (3) the defendant was liable for copyright infringement.

Decision

The court immediately dismissed two arguments:

• The first, raised by the claimant, was the idea it owned the planning permission. The court confirmed that there are no statutory or other intellectual property rights in a planning permission. The granted permission relates to the land and what may be done with it and anyone may avail themselves of it so long as they satisfy its conditions.
• The second, raised by the defendant, was that it had an implied licence to use the drawings given that it had paid a premium to the owners by reason of the planning consent. The court distinguished the earlier case of Blair v Tomkins [1971] 2 QB 78, where an implied licence had been held to exist between an architect and a developer who purchased a property from the company which had engaged the architect, on the basis that, in the case presenting under consideration, the defendant had not purchased the site from the claimant.

In relation to whether the drawings were sufficiently original to attract copyright protection, the court had little trouble in finding that they were. The bar is not high and, even though the space was divided up in a fairly logical and utilitarian manner, the court was easily satisfied that sufficient intellectual skill had gone into the drawings depicting the proposed use of the available space for copyright to subsist.

Regarding infringement, the defendant did not dispute that it had obtained the drawings from the local authority’s portal, but it argued that it did not copy the drawings as it had engaged its own architects, who had visited the site and produced their own drawings. However, as the judge explained, this argument was based on a failure to understand the meaning of reproduction in a copyright sense. 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.

The defendant’s architects also created a number of drawings which were based on the claimant’s drawings, but which had been altered. Here the court’s task was to determine whether a substantial part of the claimant’s drawings had been reproduced in the new drawings. This included a consideration of the constraints placed on the architects by virtue of the characteristics of the building itself. Running through each drawing, the court held in some cases that the new drawing did reproduce a substantial part of the claimant’s drawing and in some cases that there was insufficient similarity or that what had been taken was too trivial for a finding of infringement.

The claimant, therefore, was largely successful. However, it is interesting to note that, in relation to damages, although the court made an order for an enquiry as to damages or an account of profits, it was clear that it considered a figure of £20,000 to £40,000 (representing the anticipated remuneration of the claimant’s architects) to be a much more reasonable figure than the far larger sum (including £360,000 in respect of its costs of obtaining the planning permission alone) claimed by the claimant.

Conclusion

The judgment serves as a useful reminder of the issues that need to be considered when developing a property with an existing planning permission granted on condition that the development be carried out in accordance with specific drawings. Any development carried out in accordance with such a planning permission is likely to infringe the copyright in the drawings even if new drawings are created from scratch by a different party. A licence to use the drawings must be obtained from the copyright owner or a new planning permission must be submitted using new drawings which are not based on the drawings from the previous permission.