On 17 February 2017, the High Court held (Signature Realty Limited v Fortis Developments Limited (1) and Beaumont Morgan Developments Limited [2016] EWHC 3583 (Ch)) that copyright had been infringed in an architect’s drawings which formed part of a planning permission for the development of a block of student flats, where the developer who carried out the development was not the party who submitted the planning application and obtained the planning permission.

1         Background

The original developer (Signature) sought to purchase the site for development into student housing and instructed its architect to prepare the drawings for the planning permission. Signature was only granted a non-exclusive licence to use the drawings in connection with the development.

Signature entered into a joint venture with Wordsworth Realty Limited to address financing issues. At the time that the planning permission was granted, Wordsworth had exchanged contracts with the then owner to purchase the property, but had not completed due to lack of funds. The owner, unbeknown to Signature, had agreed and eventually, sold the site to Fortis with the benefit of this planning permission.

Fortis proceeded to make minor amendments to the planning permission and also marketed the units for sale. It was a condition of the planning permission that the development “be carried out in complete accordance with [a list of approved architect’s drawings]”. The drawings were uploaded on the council’s website with the usual copyright limitation notice for consultation purposes.

2         The Court’s Decision

The Judge held that the copyright in the architect’s drawings had been infringed on a number of counts by Fortis copying substantial parts of the architect’s drawings by reproducing elements of the original drawings. Mr John Baldwin QC (the Judge) cited the interpretation of Lord Millett in Designers Guild v Russell Williams [2000] 1 WLR 2416 in interpreting the relevant statutory legislation relating to copyright infringement, highlighting that “while the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant’s work”.

This case is distinguished from the case of Blair v Osborne & Tomkins [1971] 2 QB 78 where the Court of Appeal held that, when an architect is engaged by a client to prepare drawings to obtain planning consent for a development, there is an implied licence to the client 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, as Fortis had not purchased the site from Signature.

The Judge did not assess the amount of damages, but did rule that Signature would not be awarded aggravated damages under section 97(2) of the Copyright, Design and Patents Act 1988, as the breach of copyright by Fortis was found not to be of a ‘flagrant use’ and it was not clear whether the benefit gained by Fortis was from the infringement of copyright or from obtaining the planning permission.

The Judge was highly critical of Signature’s evidence so it is difficult to see whether this judgment would have been different had the witness been (in the Judge’s opinion) more reliable.

The Judge also refused to grant an injunction against Fortis as Signature had not established that an injunction was needed to protect any legitimate interest which it retained in the copyright.

3         Practice Point

This case is particularly important for developers who purchase sites with the benefit of planning permission. There are a number of situations where multiple parties may be involved in the planning process, for instance land promotion agreements, and wherever the landowner has not obtained the planning permission (i.e. instructed the architect), the developer will need to take all steps necessary to ensure that the copyright in the drawings and reports can be assigned if it wishes to rely on these to carry out the development.

The Judge commented at paragraph 22 of his judgment that:

“Anybody can apply for planning permission to develop any land and any granted permission relates to the land and what may be done with it. 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.”

There is a specific distinction between the planning permission and the drawings associated with the planning permission, and although no statutory or property rights attach to the planning permission, without the copyright licence in the drawings, a developer will find itself exposed should it utilise that planning permission.