Who Owns a Planning Permission?

Commercial Property | 23rd March 2017

Anyone can apply for planning permission on any piece of land, whether they own it, lease it, rent it or simply see it from the upper deck of the bus on their way to work in the morning.  It is long established that there is no need to have any proprietorial interest in land before making a planning application to develop it.

But once the planning permission is granted, who does it belong to?  And can anyone simply copy the design on the basis that the act of applying for planning permission puts the design into the public domain and free for all to use?

The first question is easy to answer; a planning permission relates to the land, not the applicant, and anyone can implement it so long as they have sufficient interest in the land, and abide by its conditions.  In other words, you cannot own a planning permission, even if you paid good money to make the application.

This much was confirmed in a recent decision of the High Court (Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583), but the court went on to consider the more complicated second question; are planning permission designs in the public domain and so capable of being utilised by anyone who happens to download them from the local authority’s planning portal?.

In the Signature Realty case, the developer did just that – he bought the land in Sheffield city centre, downloaded the planning permission drawings, and proceeded to develop the site for student accommodation on the basis of those plans.  What could possibly be wrong?

The architect, who had created the design which had been used to prepare the planning application, cried foul!  The design was his, he argued, and the developer had no authority to use it, even if it was freely available to download from the internet.

The court sided with the architect: the developer had no implied right to use the planning permission drawings, and in doing so had breached the architect’s copyright in the design.

This case turned upon some esoteric points of law, and in Signature Reality the developer’s case failed because the party from whom it bought the site was not the party who had engaged the architect to prepare the design and apply for planning permission.  But it highlights the caution to be exercised, particularly by smaller developers, or a developer purchasing a site on the rebound from an earlier failed scheme, in taking great care to ensure that it has sufficient rights in the design to implement the planning permission.

Roderick Campbell

Partner, Head of Commercial Property

Rod has specialised in property law for over 20 years concentrating on commercial property for the last 7 years. He handles a broad range of commercia...

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