London Borough of Bromley (20 004 493)

Category : Planning > Other

Decision : Upheld

Decision date : 05 Feb 2021

The Ombudsman's final decision:

Summary: Mrs X complained on behalf of a residents’ group about the Council’s failure to control a telecommunications mast proposed on land near their homes. Based on the information seen so far, there was fault in the way the Council acted which it agreed to remedy.

The complaint

  1. Mrs X complained on behalf of a residents’ group that because the Council failed to make its decision on a telecommunications mast within the time limit. She says the development affects the amenities and property values of nearby residents.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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 and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files.
  2. I gave Mrs X and the Council an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

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What I found

Planning law

  1. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
  2. Some permitted development proposals require an application so the council can decide whether it can or should control certain aspects of the development. These applications are referred to as prior approval or prior notification applications.
  3. Some telecommunications masts are permitted development but need prior approval. Under the regulations, councils only have power to control the siting and appearance of the equipment and they can only do this if they make their decision and inform the applicant of the outcome within 56 days from receiving the application. The purpose of this power is to protect the visual amenity of the area where the telecommunications equipment is proposed. If the Council fails to communicate its decision within the time limit, the proposal becomes lawful despite any concerns the Council might have had.
  4. Individuals are often concerned about the potential impact telecommunications equipment might have on their health. The government has decided that the planning system is not the place to determine health safeguards and that proposals should be considered safe if they meet internationally agreed safety standards. Applications for telecommunications masts and equipment must be accompanied by a declaration that they comply with safety standards set out in internationally agreed guidelines.
  5. Councils have the power to revoke planning permissions they grant or are granted by development orders (eg permitted development orders) before the development is completed. If revocation is successful, the developer may claim compensation for works and other abortive costs that were incurred between the grant of approval and revocation.

What happened

  1. The Council received a prior approval application for a telecommunications mast. Because the mast was within permitted development limits set out in regulations, the principle of development was already deemed acceptable. Under the regulations, the Council only had power to control the siting and appearance of the equipment and it could only do this if it made its decision and informed the applicant of the outcome within 56 days from receiving the application. The purpose of the Council’s power is to protect the visual amenity of the area.
  2. The Council did have concerns about the siting and appearance of this application and how it would affect the visual amenity of the area. It intended to refuse the application. However, it failed to communicate its decision within the time limit and so lost planning control. The Council says it made its decision within time, but there was a fault with its document management system because the letter, which should have been automatically generated, was not sent. There was a back up system, so that a copy is sent manually, but this also failed.
  3. Mrs X lives near the site and thinks the mast is ugly. She says she and other local residents are concerned about the impact the mast might have on:
    • their health; and
    • the value of their properties.
  4. Mrs X complained to the Council about what had happened. The Council wrote to her and accepted it was at fault. It explained what had happened, the extent and purpose of its powers to control telecommunications masts and equipment and why it would not seek to revoke the permitted development permission. The Council also explained that it had tried to get the developer to revise the application because of its concerns, but the developer did not want to change its plans. However, the Council did not apologise for its failure to control the development.
  5. Mrs X would like the Council to relocate the mast. She feels it should do more to encourage the developer to move the mast.
  6. In response to an earlier draft of this decision, the Council confirmed that it has since identified the cause of the fault and rectified it. The Council said it has also devised a ‘fail safe’ measure, which triggers an alert if there is a system failure.

My findings

  1. The Council intended to protect the public from the impact the telecommunication mast would have on visual amenity. It did not do so because its systems designed to produce and send decision letters did not work. This is fault.
  2. Whenever we find fault, we must determine whether it caused an injustice to the individual complainant. Mrs X said she is concerned about the appearance of the mast, how it might affect the health of residents and property values. She would like the mast to be relocated.
  3. Because of the fault I have found, the Council lost control of the mast and cannot require it to be relocated. Mrs X would like the Council to try harder, but we cannot objectively measure effort or require the Council to act where it has lost power to do so.
  4. The purpose of the Council’s power to control this type of development is aimed at protecting the public generally in relation to the ‘visual amenity’ or appearance of the area. The Council is not obliged to protect an individual’s private rights, such as the value of property, and it had no power to base a refusal on health grounds.
  5. However, I understand why Mrs X is disappointed by what has happened and that she and others are entitled to expect the Council to carry out its functions within regulatory time limits. I understand too why Mrs X felt compelled to complain. The Council has accepted fault, it has explained what happened and taken measures to avoid recurrence, but it should also apologise to Mrs X, who acts on behalf of the residents’ group.

Agreed action

  1. The Council agreed to write to Mrs X and apologise for the fault I have found and the disappointment it has caused to her and the individuals she represents. The Council should do this within four weeks from the date of this decision.

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Final decision

  1. There was fault in the way the Council made its decision which it agreed to remedy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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