London Borough of Ealing (17 014 188)

Category : Planning > Other

Decision : Upheld

Decision date : 26 Nov 2018

The Ombudsman's final decision:

Summary: The Council provided wrong information about the location of a telecommunications mast in 2015 which meant it did not investigate whether a planning breach occurred. It has also delayed responding to the complainant. The Council’s apology, provision of correct information and investigation into the original complaint about the increase in thickness of the mast remedies this complaint.

The complaint

  1. The complainant, who I shall refer to as Mr B, complains the Council:
    • failed to use its planning powers in time to deal with a telecommunications mast upgrade near his home, which occurred in late 2015;
    • enabled other masts on the same road near his home to be built because it failed to use its planning powers in time;
    • has a flawed mapping system which does not accurately reflect whether land is highways land for planning purposes;
    • failed to display planning information about a telecommunications mast application on its website;
    • failed to reply to his emails and letters about this.
  2. Mr B worries about the impact of a mast on his home, 100 metres away.

What I have investigated

  1. I have investigated Mr B’s complaint about the flawed mapping system, the upgrade to the telecommunications mast in 2015 and the Council’s failure to reply to Mr B’s emails and letters.
  2. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I read the complaint sent by Mr B.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. I gave the Council and Mr B the opportunity to comment on my draft decision.

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What I found

  1. The mast operator put in an invalid application in 2015. Mr B complains the Council failed to display this application on its website. The Council has said the application was invalid and so would not be displayed on the website.
  2. Mr B made an official complaint in May 2016. Mr B complained the Council had failed to respond to a telecommunications mast application further away from his home. This meant the operator had deemed consent to carry out the works. The Council accepted in its response in August 2016 that an error by planning officers meant that no response was made to the application and gave Mr B the contact details for the Ombudsman if he wished to pursue the complaint.

Mast on corner of Mr B’s road

Key facts

  1. In 2003 a monopole radio mast was placed on the corner of Mr B’s road.
  2. Mr B told the Council that it was replaced with a mast that might be thicker and higher in November 2015. The Council’s planning enforcement officer visited the site on 2 December 2015.
  3. In April 2016 the Council wrongly told Mr B the mast was on land owned by the Council parks department and so the Council could not take enforcement action against itself. The officer involved has left the Council so the Council cannot say why he gave Mr B the wrong advice or no decision on the enforcement complaint was reached.
  4. The Council gave Mr B a wrong response to the freedom of information act request in November 2016. In December 2016 the Council corrected this error (in response to a freedom of information act request) and told Mr B the mast was on part of the adopted highway, maintained by parks as part of the grass verge.
  5. Mr B made an official complaint to the Council. In April 2017 the Council replied to his stage 1 complaint that the mast was on highway land maintained by the parks department.
  6. Mr B made a stage 2 complaint in July 2017. He complained the Council’s mapping system was inaccurate and asked the Council to take enforcement action over the increase in the base of the mast width in 2015.
  7. Mr B complained to the Ombudsman that he had received no reply to his stage 2 complaint in October 2015.

My analysis

  1. The Council has clarified to the Ombudsman that ‘the Council does not own the grass verge the mast sits on, as it forms part of the adopted highway, it is maintained by the Council’s park service’. The Council has said there are no errors in its maps, but there has been human error in its response to Mr B’s requests. I can find no evidence that the Council’s mapping system was at fault.
  2. There has been fault by the Council. It gave Mr B wrong information about the land the mast sits on in 2015 and 2016. The Council has apologised to Mr B and given him the correct information. It has also said there has been unacceptable delay in responses by specific officers, to Mr B’s official complaint and to my enquires.
  3. The Council has not provided a response on whether enforcement action can be taken over Mr B’s allegations that the size of the mast increased in November 2015 now it is clear it is not on land owned by the Council’s parks department.
  4. Mr B does not live directly next to the mast. The mast is on the main road but his house is 4 houses down a side road. There was already permission for a mast in this location, so the injustice to him in his property is minimal from the alleged increase in mast thickness.
  5. I appreciate the Council’s confusing and slow response has been frustrating for Mr B. However, I consider the Council’s apology sufficient remedy, given the minimal injustice caused to him in his property by an increase in an existing telecommunications mast thickness.
  6. I do consider the question over whether enforcement action can be taken over increase in mast thickness remains. In order to remedy this injustice, I recommend the Council investigates whether a breach of planning control occurred in November 2015 and if so, decides whether to take action, if any.

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Agreed action

  1. That the Council investigates whether a breach of planning control occurred in relation to the telecommunications mast in November 2015 and informs Mr B if it intends to take enforcement action within 4 months of the date of this decision.

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Final decision

  1. I have completed my investigation of this complaint. There has been fault and delay by the Council. This complaint is upheld. I consider the Council’s apology, provision of correct information and investigation into whether a breach of planning control occurred remedies any injustice cause to Mr B.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr B’s complaint that it:
    • enabled other masts on the same road near his home to be built because it failed to use its planning powers in time;
    • failed to display planning information about a telecommunications mast application on its website.
  2. These events occurred in late 2015 and early 2016. Mr B made an official complaint to the Council on some of these issues and the Council responded in August 2016. Mr B had the contact details for the Ombudsman then but made no complaint to the Ombudsman until now. This is a late complaint and I have seen no good reason to accept it for investigation now. In addition, the mast referred to in this complaint is not on Mr B’s road, but on a main road some distance away and so I do not consider there is any direct personal injustice caused to the value or amenity of his house.

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Investigator's decision on behalf of the Ombudsman

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