Summary: The Council failed to consider a telecommunications prior approval application within the prescribed 56 day timescale meaning deemed permission was granted. This failure to consider the application within 56 days and communicate the decision is fault. However, the Council could not refuse the application on the grounds put forward by Mr X and so the outcome would have been the same and permission granted. Mr X has not suffered a significant injustice as a direct result of the fault in this case.

The complaint

1. Mr X complains the Council failed to determine a prior approval application for a telecommunications mast within the 56 day time limit meaning it had deemed consent without his objections being considered. He also complains the Council gave permission for the phone company to build on its land despite local opposition.
2. Mr X says he now faces the prospect of living close to a mast which he believes has health implications.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. The erection of a telecoms mast up to 15 metres in height is considered permitted development and does not require formal planning permission. However, a telecoms company must seek the approval of the planning authority in respect of the siting and appearance of the mast and associated equipment. These are known as prior approval applications.
7. On receipt of a prior approval application the Council has 56 days to consider the siting and appearance and notify the company of its decision. If a decision is not communicated within 56 days then the application has deemed approval.
8. A telecoms company made an application for the prior approval of the siting and appearance of a telecoms mast in October 2016. The Council took the correct steps to advertise the application including the erection of a site notice. Mr X made representations to the Council about the prior approval application.
9. In his letter of objection, Mr X said he objected to the 12 metre mast as it is too close to a school and people’s homes. He said there is evidence online which shows they are a hazard to health. Mr X asked the Council to reconsider and to not spoil one of the small open grass areas with a danger to health.
10. The Council failed to consider the application within the specified 56 day time period. In response to Mr X’s complaint, it said this was due to human error. It accepted it had had received representations objecting to the proposal, including representations from local ward members. The Council told Mr X it had taken action to ensure its improved its systems so this type of error would not occur again.
11. The Council explained to Mr X that this type of application only allows it to consider the siting and appearance and not other factors such as health and safety concerns. It explained the applicant complied with due process and provided an International Commission on Non-Ionizing Radiation Protection (ICNIRP) declaration stating the installation would be safe.
12. The Council also said the mast has a permit for its siting on the public highway but the foundation and a small area of paving to facilitate access to the cabinet are located on the green space adjacent to the highway and as such the mast encroaches onto Council land. It said it was exploring what legal avenues were open to the Council as landowner.
13. In response to my enquiries the Council provided details of its contact with the telecoms company regarding permits. The information shows a number of permits for street works have been granted. However, the telecoms company has not carried out the works to erect the mast. In December 2018 the Council refused permission for a road closure and crane activities due to insufficient information provided by the telecoms company. The Council says it has not received any further information or application in respect of the street works.

Analysis

14. The information provided in this case shows there was fault by the Council. It was required to make a decision on the prior approval application within 56 days and it failed to do this. As there is fault I have to consider what injustice this has caused to Mr X.
15. Despite the mast getting deemed approval in October 2016, it has still not been erected. The permission is still valid and the mast could be erected at any time. The Council’s understanding is that the telecoms company intends to erect the mast but it has no firm details of the timescales for this.
16. The Ombudsman has to consider what would have happened but for the fault. The prior approval application process is limited in what it can consider. I am aware that Mr X and other residents are concerned about the health implications. Even if the Council had dealt with the application correctly, it could not have taken account of objections on the basis of health concerns. Mr X did not raise concerns about the siting and appearance on grounds other than health concerns. Therefore, on balance, I consider the application would have been approved if the Council had dealt with it within the allowed 56 days. My view is that Mr X has not been caused a significant injustice as a direct result of the fault in this case.
17. The Ombudsman’s role is to remedy the injustice caused as a result of any fault by the Council. I am not persuaded there is a significant enough injustice in this case to warrant further action. My view is the outcome would have been the same even if the fault had not occurred. I therefore would not recommend any remedy. However, in response to my enquiries the Council has offered to make Mr X a payment of £100 to show how sorry it is for the failure to make the decision in the prescribed timeframe. In order to be impartial and transparent, I am including details of this offer in this statement even though I am not recommending any action. Mr X, in his comments on the draft decision statement said he considered this offer a bribe and would not accept it.
18. I am satisfied the Council has already taken steps to improve its procedures to ensure future applications are determined within the 56 day prescribed timescale.

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Final decision

19. I will now completed my investigation as there is no evidence Mr X has suffered a significant injustice as a direct result of the Council’s fault in this case.

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Investigator's decision on behalf of the Ombudsman