If you’re a small developer or person looking to self-build your property, it is a good idea to ensure the land you are proposing to develop is acquired without a planning permission restraint against it. In the recent case of Signature Realty Limited v Fortis Developments Limited, the High Court highlighted an issue that arose when a planning permission contained a condition requiring the development "to be carried out in complete accordance with the submitted drawings".
In that case the High Court decided that where a party carries out development in respect of which another party obtained planning permission an architects copyright was infringed where there was no licence to use the drawings.
Two common misconceptions in respect of planning permissions:
1. The planning permission granted belongs to the person who submitted the application
Fact: Anyone can apply for planning permission to develop any land. They do not have to be the owner or indeed have any interest in the land. Any planning permission granted relates to the land itself and not to the person. There are no statutory or intellectual property rights in the permission. Anyone can use it, provided that they satisfy a set of conditions. One such condition may be as previously mentioned that the development is carried out in complete accordance with the submitted drawings.
2. If a property benefits from planning permission, the acquisition of that property grants a right to use the drawings associated with that permission
Fact: The copyright in the drawings belongs to the person, normally an architect, who prepared those drawings. The architect will need to give explicit permission for the drawings to be used, copied or reproduced. This is even the case when the drawings are available via the Local Authority planning portal.
Where there is no licence for the use of the drawings available, then use of the drawings will be an infringement of the architect’s copyright. He or she may choose to not only claim for damages, but also injunctive relief, preventing the continuation of the development works. Additional damages can also be claimed if the court considers that there was a flagrant disregard of the rights of the architect. The only option in these circumstances is to submit a fresh planning application with new drawings.
Whilst the principle for the grant of planning permission may have been established, there is no guarantee that a subsequent permission will be granted.
What questions should I ask when buying a site with a planning permission?
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