Construction professionals will be familiar with copyright provisions in consultant appointments and collateral warranties. In Signature Realty Ltd v Fortis Developments Ltd the Court had to consider the position when an architect’s drawings had been used to obtain planning permission, but the development site was subsequently sold and developed by another developer.
Branchester International Limited (BIL) owned a site in Sheffield City Centre. In March 2012 it applied for planning permission for 55 apartments. The application was granted in July 2012.
In May 2013 Signature agreed that a partner company would purchase the site from BIL, with Signature developing the site as part of a Joint Venture. However, completion did not take place due to lack of funds.
In August 2013 Signature engaged the architects Corstorphine + Wright (C+W) to prepare drawings for a planning application for an enhanced scheme of over 200 student accommodation apartments. The planning application was submitted in October 2013 and was subsequently granted on the condition that the development was in accordance with C+W’s drawings.
At this point, the sale of the site had still not completed and so, in May 2014, BIL commenced negotiations with Fortis. Contracts were exchanged in July 2014. At the time of exchange, Fortis was aware of the planning permission and had downloaded copies of C+W drawings for tendering and marketing purposes.
Following completion of the sale to Fortis, an alternative architect was appointed for the construction phase.
In October 2014 Signature became aware that Fortis was selling student accommodation. C+W agreed to assign the copyright in its drawings to Signature, and Signature commenced proceedings for infringement and damages for loss of opportunity.
HELD: There was no issue that copyright ownership remained with C+W and the Court agreed that the use, by Fortis, of C+W’s drawings for tendering and marketing purposes amounted to copyright infringement. Fortis did not have an implied licence to use the drawings. However, the Court made it clear that under the Town and Country Planning Act 1990 a planning permission “belongs” to the site not the person making the application.
COMMENT: This decision confirms the importance of not only having copyright provisions in order to protect a legitimate interest, but also to ascertain who owns the copyright and the extent to which copyrighted materials can (or can’t) be used. Further, prospective purchasers should exercise caution before applying for planning permission or seeking to use a pre-existing permission.
