Rachael Hobbis, construction partner in the Higgs LLP commercial property team, has urged all developers and site owners to take note of a recent court judgement when embarking on future projects.
Even before the first brick is laid, there are huge obstacles to be cleared for any construction project.
The recent case of Lennox Estates Ltd v S&W Ventures Ltd highlighted another potential pitfall which should be front of mind for any site owner or developer embarking on a development project. Namely, copyright of any drawings – in this case those which form part of the planning process.
The case saw property developer Lennox Estate obtain planning permission on a site they had an option to purchase. They instructed architects to prepare design drawings for the planning permission process but subsequently didn’t go ahead with the land purchase and the option to buy lapsed.
Later, a new developer - S&W Ventures - purchased the site with the benefit of the earlier planning permission and the site owner supplied S&W Ventures with a set of drawings. It was alleged that these drawings were closely based on the Lennox Estates drawings. S&W Ventures, needing to make up some further drawings to vary the planning permission, instructed its architects to adapt the drawings.
Copyright of the original drawings was assigned to Lennox Estates by its architects and, with S&W Ventures using those drawings as a basis for its planning permission proposals, there was an alleged infringement of the copyright.
Lennox Estates, the claimant, argued the original drawings were being copied or that an interim set of drawings based on the original drawings were being copied by the defendant’s – S&W Ventures – architects.
The defendant’s argument was based around a denial of copying the original drawings and that the site owner was entitled to use the original drawings to the extent necessary for the exploitation of the site on the basis that the benefit of any planning consent would pass to the site owner, thus allowing them to acquire a licence under the copyright in the original drawings.
The court ruled in favour of the claimant, citing the original drawings attracted copyright protection and that the necessary “intellectual creativity” had been used when producing them.
The judgement also ruled that the defendant’s architects had substantially copied the original drawings and that the site owner could not establish that if the claimant failed to proceed with the purchase, they could acquire an implied licence for the copyright of the original drawings.
From a legal perspective, the correct outcome has been achieved and this serves as a timely reminder to both site owners and developers to carry out due diligence on the copyright of any drawings relating to planning permission.
Appropriate questions should be asked over copyright ownership of any drawings produced by a previous owner or at an earlier stage in the development process. An express copyright licence to use drawings should be obtained to prevent arguments relating to any potential implied licence and, if a licence is granted, careful scrutiny should take place to ensure the licence is without conditions and for the necessary purposes.
