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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10624
Experience:  Barrister 17 years experience
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My wife and I are in the process of trying to gain planning

Resolved Question:

My wife and I are in the process of trying to gain planning permission for an extension. As such, we engaged a RIBA qualified architect, to whom we provided professionally drawn up "as is" drawings and a PDF file showing what we wanted. The request to the architect was to formalise our design and add some artistic flair, as the original house is distinctive and aged.
The Architect has been excessively rude, non responsive and the quality of the work has been poor throughout - the designs leaving rooms with no entrances, or adding a new staircase, but not removing the old as examples. Further, when we finally reached an agreed scheme - way past our stated timescales, the architect failed to produce the agreed scheme and submitted for planning permission incorrect drawings, having NOT provided final proof drawings for client sign off.
On noting the planning submission was incorrect, we asked the architect to immediately redress - via email, as we were on holiday and non contactable by phone. No response was received for more than a week, leading to us withdrawing the planning application and finding another designer.
The question now surrounds whether the new designer can draw up and submit planning applications for the extension using the design - on the basis that the original design was produced by me and the only "original" feature added by the first architect was a replication of a prominent feature from the pre-existing building. The extension itself is proposed to be a 10mx4m double height extension with rectangular plan form, with brickwork and tiling to match the existing house.
I understand that with architects copyright in the drawings remains with them, but would like to understand if this is mitigated in this case either by the fact that the architect was provided the intellectual capital by us in the first place [and the only original feature was copied from the as is building] OR by the fact that we have had to terminate their agreement due to them clearly being unable to fulfil their contract accurately.
thanks
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.
1. There is a distinction draw in terms of legal protection between copyright and design rights. Copyright ad heres to plans and drawings and protects the originality and get-up of the drawings and plans. Design rights relate to the visual and 3D effect of a piece of work. Here, whilst the architect has copyright in his plans, he does not have copyright or design rights in relation to the actual 3D effect of the building as this was provided by the owner (you) of the building. However, whilst there is no design rights in the original design produced by you, there is copyright over the plans of the replication of the prominent feature from the pre-existing building. To incorporate this novel feature in fresh plans would certainly infringe the architect's copyright in the plans he submitted. So there must be some "new" element in any fresh design submitted which does not include this replication of the prominent feature. Essentially, the new architect must draft a fresh set of plans different from the old ones.2. Additionally, you should realise that this architect was in fundamental breach of the contract with you. Such breach would justify you terminating the agreement as he failed to seek your client approval before submitting the plans for planning permission. Accordingly, whilst the architect would be entitled to a quantum meruit or fair recompense for any work done, he is not entitled to his full fee for doing the work. As a corollary, this also means that you cannot pay him nothing for the work he did. You had the benefit of his plans even if they were not successful. However, should he sue you, you can countersue for breach of authority in acting without your approval.
Customer: replied 2 years ago.

Many thanks.

So would I then be reading correctly that we may have grounds for approaching the original architect and coming to [or attempting to] an agreement over the use of his copyrighted design along the lines of "we recognise you own the copyright and any use by us of that would infringe your right, but at the same time your submission without our approval is a breach of authority for which we could countersue. It is therefore in both our interests to move along separately?

As a side note, we have paid the architect £360 as a deposit against a total fee for the design work of £1950, whilst accepting that's somewhat objective in your estimation would that be sufficient to offset the quantum merit?

Once again, many thanks for your valued help

Expert:  Buachaill replied 2 years ago.
3. You can attempt to come to an agreement with the original architect over the use of his plans, but I doubt he will agree to their use unless substantially more of his fees are paid and some credit or recognition is given that it is substantially his work. However, I would suggest that the relationship with him is now sundered and you are best move along separately. Finally, without seeing what has been done, my best guess is that paying approximately less than 20% of any fees due does not reflect the fact that work was done and plans submitted. In my estimation, this is too low.
Expert:  Buachaill replied 2 years ago.
4. I would suggest you meet with this original architect and have a meeting with him. He will doubtless have his views and he may agree to work towards the common goal of seeing your building works completed satisfactorily. AFter all, having a dissatisfied client is never what any professional wants.
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Customer: replied 2 years ago.

Fabulous, thank you very much for your time