Using existing planning drawings for development: avoiding copyright issues

Planning drawings are typically protected by copyright, which remains with the original creator - usually the architect or designer. Simply purchasing the land with the benefit of an existing planning permission or obtaining planning permission doesn't automatically grant you the right to use these drawings.

Developers must actively secure a license or an assignment of rights from the copyright holder to implement these designs legally. Without this crucial step, you could face legal action for copyright infringement, potentially derailing your project and leading to substantial financial liabilities. Addressing these rights during the acquisition process is essential to ensure a smooth and legally sound development journey.

This article answers some of the most common questions about planning drawings and copyright. For specific advice on your next project, our development solicitors are here to help.

How does copyright law protect planning drawings?

Planning drawings are detailed architectural or design documents submitted as part of the planning permission process for a development. These drawings illustrate the proposed project's layout, design, and structural details, which are crucial in gaining approval from planning authorities.

Copyright protection for planning drawings falls under the Copyright, Designs and Patents Act 1988 (CDPA). According to this Act, copyright automatically applies to original works, which include "artistic works" such as architectural plans and drawings. The creator of these works, typically the architect or designer, is considered the copyright holder.

As the copyright holder, the architect has exclusive rights to reproduce, distribute, and use the drawings. This means that developers must secure the appropriate rights from the architect to use these drawings in their projects legally. Simply paying for the drawings does not transfer copyright ownership; this must be explicitly negotiated and documented.

Any developer who engages an architect for planning drawings should check their terms and conditions first to ensure that there is an express licence describing what rights the developer has to use or assign the copyright.

Using planning drawings without obtaining the proper rights can lead to legal action for copyright infringement, potentially resulting in damages or injunctions. This legal framework ensures that the creator's intellectual property rights are protected, emphasising the importance of securing the necessary permissions before developing.

Do I automatically have the right to use planning drawings when I buy a site with planning permission?

No, you do not automatically have the right to use the planning drawings when you buy a site with planning permission. The copyright to these drawings typically belongs to the original creator, such as the architect.

To legally use the drawings for your development, you need to secure a license or assignment of rights from the copyright holder. Failing to do so could result in legal action for copyright infringement. It's crucial to address this during the acquisition to avoid complications.

It is usually a condition of the grant of any planning permission that the development must be carried out in accordance with the planning drawings that were submitted. If you purchase a site without the correct licence to use the copyright in the planning drawings, then this could prevent you from using the site for the proposed use.

What if the planning drawings are freely available on a planning portal?

Planning drawings are often placed on public portals to provide transparency in the planning process. Local authorities make these drawings accessible so that members of the public, neighbours, and interested parties can review and comment on proposed developments.

Copyright still applies even if planning drawings are freely available on a planning portal. While these drawings are accessible for public viewing as part of the planning process, the copyright remains with the original creator.

To legally use these drawings, you still need to obtain a license or assignment of rights from the copyright holder. Without this, using the drawings for your project could result in copyright infringement claims.

What steps should I take regarding copyright when purchasing a site with planning permission obtained by the current owner?

When buying a site with planning permission obtained by the current owner, it's crucial to address the copyright of the planning drawings.

Here's what you should do:

• Identify the copyright holder: Determine who holds the copyright to the planning drawings. This is usually the architect or designer who created them.
   
• Obtain a licence or assignment: Negotiate with the copyright holder to secure a licence or an assignment of the rights to use the drawings. This should be done as part of the acquisition process.
   
• Include in the sale agreement: Ensure that the right to use the planning drawings is explicitly included in your sale agreement. This can prevent any disputes or legal issues after the purchase.
   
• Seek legal advice: Consult with a solicitor to ensure that all necessary legal steps are taken to secure the rights you need for the project. This will protect you from potential copyright infringement claims and ensure a smooth development process.

These steps will help you avoid legal complications and ensure you can develop using the existing planning drawings.

What can happen if I use planning drawings without securing the appropriate copyright permissions?

When using planning drawings without securing the appropriate copyright permissions, developers expose themselves to significant legal and financial risks. A famous example is the Lennox Estates Ltd v S&W Ventures Ltd (2022) case, highlighting the consequences of neglecting copyright considerations.

In this case, Lennox Estates had obtained planning permission for a site using drawings created by their architects, who subsequently assigned the copyright to Lennox. However, when Lennox did not proceed with purchasing the land, the site was eventually sold to S&W Ventures. S&W Ventures used the original drawings to modify and secure further planning permissions without obtaining the necessary rights from Lennox.

Lennox Estates sued S&W Ventures for copyright infringement, arguing that the drawings were used without proper authorisation. The court ruled in favour of Lennox Estates, emphasising that the drawings were protected by copyright and that S&W Ventures had indeed copied them without securing the required permissions. The ruling underlined the importance of respecting intellectual property rights, particularly in planning and development.

Who owns the copyright after you pay an architect for drawings or plans?

When you pay an architect for drawings or plans, the copyright to those works generally remains with the architect unless a specific written agreement transfers that copyright to you.

If the architect's contract or appointment letter incorporates the Royal Institute of British Architects (RIBA) standard terms, these will typically define the scope of your license to use the drawings. This license usually allows you to use the drawings for the specific project they were created but does not transfer full copyright ownership.

If no written terms exist, the scope of your license to use the drawings might be implied based on the nature of the transaction. You must explicitly negotiate and document this in a separate agreement for broader rights or ownership of the copyright.

In essence, while you can use the drawings for the intended project, the architect retains the copyright unless otherwise agreed upon, particularly under RIBA standard terms.

What if your plans were used without permission?

If you're an architect and find that your planning drawings have been used without your permission, it's important to act quickly to protect your intellectual property. Start by confirming that your drawings have been used without authorisation, which could include use in developments, marketing materials, or other commercial activities. Gather evidence, such as copies of the unauthorised use and any relevant contracts or communications that establish your ownership and the lack of permission.

Next, seek legal advice from a solicitor specialising in intellectual property law. They can guide you on whether to attempt a resolution through negotiation or to proceed with legal action.

The first step is often to issue a cease-and-desist letter, demanding that the infringing party stop using your drawings and compensate you for any unauthorised use. If the issue isn't resolved, you may need to pursue legal action for copyright infringement, which could lead to damages or an injunction.

To avoid future issues, ensure your contracts clearly define the scope of use for your planning drawings and include strong copyright protections. Taking these steps helps safeguard your work and ensures it's used appropriately.

Contact our development solicitors

If you are looking for expert advice on land acquisition, copyright issues, or any other area of property development, our solicitors are here to help.

We advise developers on projects of all sizes, from single-plot developments to large-scale schemes, and support our clients throughout the property development lifecycle.

We have solicitors in Brighton, London, East Sussex and Cumbria, supporting developers nationwide.