Copyright in architectural drawings: what does planning permission permit?

Published 14 March 2022

For developers acquiring sites which already have planning permission, it is vital to make sure you have also purchased the right to use the planning drawings to implement the scheme. The UK Intellectual Property Enterprise Court recently confirmed the law in this area, providing a useful reminder of the distinction between planning permission and licences to copyright in planning drawings.^[1]

What are planning drawings?

Planning drawings are the architectural drawings or plans submitted as part of an application for planning permission.

Is there copyright in planning drawings?

In the UK, there will inevitably be copyright in planning drawings unless they are an exact copy of an earlier set of drawings. Copyright protects original artistic works, which will include architect’s plans. These have to involve some element of expressive or creative choice in producing the work, but this is a very low hurdle and would be met in almost every case of a professional architect working on a design.

Who owns copyright in planning drawings?

In general, the person who created the drawings or plans owns the copyright. If they are an in-house designer or architect, copyright will be owned by their employer. If they work for a firm of architects, copyright will be owned by the firm.

Where a developer does not employ the designer, the developer normally receives a licence from the designer so that they can use the plans. Sometimes this licence is limited to different project phases with stage payments. The licence is often not assignable without permission from the designer, which means it will not transfer automatically with a plot purchase.

But I can see the planning drawings on the planning portal – can’t I just copy them from there?

It’s usual practice for planning application documents, including planning drawings, to be posted on a planning portal and made available for public inspection.

Although anyone can usually view, download and print planning drawings available on a planning portal, they can only do so for very limited purposes specified on the planning portal (e.g. commenting on a planning application during the consultation period, comparing with earlier applications or checking that a development complies with the relevant planning permission). In addition, it’s usual for the planning drawings to include copyright notices indicating ownership and prohibiting copying without permission from the copyright owner.

Copying or using electronic versions of the drawings without permission is copyright infringement.

But I have to be able to use the planning drawings to comply with the planning conditions when building the development.

The grant of planning permission is usually conditional on the development being carried out in accordance with the planning drawings. However, this does not mean that anyone implementing the planning permission is automatically given the right to use the planning drawings. You have to buy that separately from the owner of the copyright in the planning drawings.

What can I do if I paid the original architect for the planning drawings?

If a party has paid an independent architect for planning drawings, they should check their agreement first to see what it says – normally there will be an express licence describing what rights the developer has. If there isn’t an express right, the court may sometimes read into the agreement the right to use the planning drawings, but the existence and scope of an automatic or implied licence to use the planning drawings will depend on the circumstances. For example:

• where an architect had charged the site owner the full RIBA scale fee for preparing plans for a building, the court held that there was an implied licence permitting the site owner to use (and to enable builders or architects engaged by the site owner to use) those plans for that building on that site. In addition, the court held that the site owner could transfer that licence to a purchaser of the site;^[2]
• where an architect had charged their client a nominal fee for the preparation of plans, the court held that the implied licence granted to their client was more limited and did not allow use of the plans beyond the application for planning permission.^[3]

I am buying a site which has planning permission obtained by the current owner. What should I do about the copyright?

As described above, the new developer should not assume they have any rights to copy the planning drawings unless they have bought these from the copyright owner. This is illustrated by two recent cases:

• Signature Realty Ltd v Fortis Developments Ltd ^[4]
  
  The original developer obtained planning permission for the conversion of a building using planning drawings prepared by independent architects. The building was owned by another party and, when the sale of the building to the original developer fell through, a new developer was offered the building.
  
  The new developer downloaded the approved planning drawings from the relevant planning portal and used them to market the development and for construction.
  
  The granted planning permission was conditional on the development being carried out in accordance with the approved planning drawings. This did not affect the court’s decision that the new developer had infringed copyright by using the planning drawings.
  
  
• Lennox Estates Ltd v S&W Ventures Ltd
  
  The original developer obtained planning permission for the development using planning drawings prepared by independent architects. When the original developer’s option to buy the site lapsed, the site owner sold the site to a new developer.
  
  The new developer instructed new architects to modify the existing drawings and used the modified drawings to support an application to vary the planning permission. Construction work was undertaken in line with the modified drawings.
  
  The Court concluded that the new developer’s use of the modified drawings infringed copyright in the original drawings, so the new developer was liable for damages.

What should new developers do?

If a developer is considering taking over a development where planning permission has already been granted, it should:

• obtain an express copyright licence (or an assignment) to use the original planning drawings from the copyright owner or at least with their permission and make sure that the licence covers every stage of the development the developer needs; or
• create a completely new design from a blank sheet of paper which is not based on the original drawings in any way and then apply for a variation to the planning consent or make a new planning application. Trying to create a “new” design by starting with the original design and making a number of changes will not avoid copyright infringement.

References

^[1] Lennox Estates Ltd v S&W Ventures Ltd [2021] EWHC 3323 (IPEC)
^[2] Blair v Osborne & Tomkins [1971] 2 Q.B. 78
^[3] Stovin-Bradford v. Volpoint Properties Ltd [1971] 1 Ch. 1007
^[4] Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583 (Ch)