Hi all,
I recently purchased an investment property (in VIC) with planning permission in place to build 2 new dwellings at the rear. I recently contacted the designer shown on the endorsed plans to get a quote to have the construction drawings done who to my surprise, advised he wouldn’t be able to assist as the client who had engaged him to prepare original plans wouldn’t consent to me building the development – unless I paid him for costs he incurred in obtaining the permission.
Apparently, there was a messy situation in the past where a builder had negotiated with the previous owner to purchase the backyard with the builder to pay all costs associated with getting permission. The deal didn’t go through and the builder (who is now out of pocket) is now claiming that he has copyright over the plans and I can’t build the development without his agreement. If I do, he claims he’ll sue.
To be clear, I had no involvement in the preparation of the original planning permission – I bought the property with the permission already in place as it was my understanding planning permission runs with the land – not with the individual, so I was therefore entitled to act on it.
Can anyone advise if this is the case? If I build the development as approved – does the builder have grounds to pursue me for costs he incurred as part of failed agreement with previous owner?
All thoughts/advice appreciated!
I say he is having you on. You have no relationship between you and the builder who had the plans prepared. If the builder is to sue anyone for non-payment it would have been the previous owner/developer who commissioned the design – more fool him for releasing the plans prior to payment (without a massive ‘DRAFT – NOT FOR CONSTRUCTION’ watermark. The approval (& plans) travel with the title, you have paid the developer for the property, the plans and the approvals gained – in doing so, you paid the developer’s premium for their work in achieving the consent.
If you were to use these on another site without the designers consent, then the designer could sue for breach of copyright.
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This reply was modified 10 years, 7 months ago by
Scott No Mates.
Thanks Scott – I should clarify the builder isn’t out of pocket because previous owner didn’t pay, only because the deal didn’t come off. Under the agreement he was always going to need to stump up the cost of getting permission, unlucky for him though the timeframe in the agreement lapsed just before the permit came through so he lost out.
I’ve since had a lawyer look at it and tell me the builder may have grounds to take an injunction out if I try start works. But it will depend on what was in his agreement with the designer (i.e. whether he ‘bought’ the rights to the plans). Assuming he did, he might be able to prevent me from building based on those plans.
THe lawyer recommended doing one of two things: 1) modify the design (by at least 5%) with a new designer, get new stamped plans from Council and build those or 2) offer the builder the money it would cost me to amend the design and remind him if he tries to sue, he won’t have a case to get any money – at best, he can simply stop me acting on the old plans.
Think I’ll get a second opinion before making the call.
I’m sure TerryW would have a fairly good idea on this one. You out there Terry?
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This reply was modified 10 years, 7 months ago by
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