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Braintree District Council (20 010 048)

Category : Planning > Other

Decision : Upheld

Decision date : 03 Sep 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council had failed to decide a prior approval application within planning regulation time limits, so lost the chance to control the siting and appearance of a telecommunications mast. There was fault because the Council did not act within the regulation time limit, and this caused Mr X uncertainty and disappointment. The Council has remedied this by making satisfactory improvements to its planning service.

The complaint

  1. Mr X complained the Council failed to decide a ‘prior approval’ application for a mobile telecommunications mast near his home within the 56 day time limit set out in regulations.
  2. Mr X said that because of this, the Council had lost the opportunity to control the siting and appearance of the mast.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2.  
  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 and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law – prior approval applications

  1. Not all development requires planning permission from local planning authorities. Certain developments are deemed as having permission, 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 applications.
  3. Some communications masts are permitted development but need prior approval. Under the regulations, councils only have power to control the siting and appearance of the communications equipment and they can only do this if they make their decision and inform the applicant of the outcome within 56 days from receiving a valid application.
  4. The purpose of this power is to protect the visual amenity of the area where the communications equipment is proposed. If the Council fails to communicate its decision within the time limit, the proposal may become lawful despite any concerns about siting and appearance the Council might have had.
  5. The regulations also impose conditions which the developer must comply with. If the developer carries out the development in breach of those conditions, the Council may be able to use its planning enforcement powers.

What happened

  1. A telecommunications company applied for prior approval to erect a telecommunications mast. The mast was planned to be on a road junction about 180 metres from Mr X’s home.
  2. The Council decided the application was valid and publicised it. The Council received comments from the parish council and two residents, including Mr X.
  3. The Council had 56 days to decide if prior approval was required for the siting and materials for the mast, but it did not make its decision in time. Because of this the mast became permitted development and could be lawfully built, provided it complied with conditions set out in the regulations.
  4. One of the conditions states that, if the mast is within 3 kilometres of an aerodrome, the developer must notify the Civil Aviation Authority, the Secretary of State for Defence or the aerodrome operator, as appropriate, before making the prior approval application to the Council.
  5. Mr X complained to the Council about its failure to make its decision within the 56 day time limit. He also said that the mast would be within 3 kilometres of a grass strip airfield, so the condition in the regulations relating to aerodromes should apply.
  6. The Council responded to Mr X’s complaint. It admitted it was at fault for not making its decision within time. It explained that when this application arrived, the planning department was understaffed. The Council also apologised to Mr X for the delay in responding to his complaint.
  7. The Council has written to the Ombudsman to explain what happened. The Council said that since it missed the 56 day time limit, the Council has appointed a new planning manager who has made a number of changes to improve the service. The Council now uses its computer software’s task reminders, so planning managers can check whether important deadlines, including prior approval time limits, are met. The Council also funded recruitment of several new planning officers.
  8. I spoke with the new planning manager, who said the changes have been in place for some time and he is confident that they will avoid the same service failure occurring in the future.
  9. The planning manager said that the issue of the nearby grass strip airfield was raised with the developer, but they have heard no more from them since. The manager said that the developer still needs to comply with all conditions included in the regulations, and that a failure to do so might result in planning enforcement action. However, the manager said that, as far as he knew, the mast had not been constructed, but if ever it is, the Council will decide whether there is a breach of planning control and what action, if any, would be appropriate.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in decision making processes, and if we find it, we decide whether this caused an injustice to the complainant.
  2. The Council did not make its decision on the prior approval application and send it to the developer within the 56 day time limit. This is a service failure and so is fault.
  3. Mr X lives a significant distance from where the mast was planned to be. Even if it had been built, it is not likely to have had a significant impact on him. However, he had taken the time to write to the Council with his objections and I understand his disappointment caused by the Council’s failure to act. This disappointment and the uncertainty on what might have happened if the Council had acted properly is an injustice to Mr X.
  4. The Council did eventually write to Mr X and explain what had happened, and it apologised for the delay in responding to him. It did not also apologise for the failure of the planning service to act within the time limit, and it would have been better if it had done so.
  5. The Council has accepted it was at fault and has already carried out changes to prevent the fault recurring. I find the actions it has taken are satisfactory and, while a more extensive apology might have been appropriate, I do not intend to make further recommendations.

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Final decision

  1. There was fault that caused an injustice which has already been remedied by the Council’s actions. I completed my investigation because the Council’s actions are a satisfactory remedy and should prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman

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