If you want to develop a site using the designs prepared for a previous owner who obtained planning consent, beware copyright infringement.
In a recent High Court case the judge had to decide this issue.
A property developer, Lennox Estates, had an option to buy some land if they got planning permission to develop it. Their architect prepared designs and in due course Lennox Estates obtained planning consent. But Lennox Estates did not go ahead with the project and their option to buy the land expired.
Three years later, in 2020, another developer, S&W Ventures, bought the land and engaged another architect to modify the previous plans for a revised planning application.
Lennox Estates, who owned the copyright in their own architect’s designs, claimed that S&W Ventures would be infringing their copyright.
The judge agreed there was a clear case of copyright infringement and gave summary judgment in favour of Lennox Estates.
The judge also considered whether the owner of the site, Cherubond Ltd., who had given the option to Lennox Estates, had either an express or implied licence to make use of the original drawings that were prepared for the original planning application that was granted.
He decided that this was not the case. First, the option agreement between Cherubond and Lennox Estates said nothing about what would happen to the designs prepared on behalf of Lennox Estates if they did not proceed with their development. Also, those designs were commissioned and paid for by Lennox Estates who also obtained the planning consent, not by Cherubond, the owner of the site.
So, if you are a site owner who allows a developer to make a planning application for a development , be sure to retain an interest in the drawings if the developer does not proceed with the project. Or, if you are a developer who wants to take over a development project from a previous owner of the site, be sure to sort out the copyright situation if you are going to rely on designs already prepared for a previous planning application by another developer or architect
Lennox Estates Ltd. v. S&W Estates Ltd. High Court of Justice Business and Property Court of England & Wales Intellectual Property Enterprise Court (ChD) | November 8, 2021 | 2021 WL 05181772