Summary: Mr X complained the Council failed to decide a prior approval planning application to erect a telecom mast in his village within the statutory timescales. This meant the developer was able to erect the mast without planning control. The Council was at fault, but it has already apologised to Mr X, which is an appropriate remedy in the circumstances.

The complaint

1. Mr X complains the Council failed to determine a prior approval planning application for a telecom mast in his village within the statutory timescales. Because of this and despite the Council’s intention to reject the application, the mast can be built without planning control.
2. Mr X said erection of the mast is unsafe, will have a negative visual impact on the amenity of the village and the value of his house.

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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. 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)
5. 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

6. I considered Mr X’s complaint correspondence with the Council and his complaint to us.
7. I considered planning documents published on the Council’s website.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
11. Planning considerations do not include things like:
• Views other another’s land;
• The impact of development on property value; and
• Private rights and interests in land.

Permitted development

12. 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’.
13. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as applications for prior approval.
14. Government regulations have made some telecom masts permitted development providing the mast and equipment is below a specified size. Developers however must apply to the Council for determination as to whether prior approval is required regarding the siting and appearance of the development.
15. The main considerations for planning officers are the visual impact of the proposal, highway safety and access to utilities when considering whether prior approval is required for siting and appearance of the mast.
16. The government has issued guidance which concludes that telecom masts are safe, providing they conform to internationally agreed limits.

Statutory timescales

17. The Town and Country Planning Order 2015 states that when a planning authority receives an application for prior approval of a mast it must determine it within a period of 56 days beginning on the date it received the application.
18. If the planning authority fails to decide the application within the statutory timescales, then the development may go ahead without further planning control.

What happened

19. In 2019 a developer submitted an application for prior approval to install a 15-metre telecom mast. The developer proposed to install the mast on a verge of land next to a highway which runs through a village.
20. Mr X lives on the opposite side of the highway to the proposed site of the development and he objected to it. Mr X said the mast would have a negative impact on the value of his home and would cause his family extreme anxiety. Mr X was concerned about the impact of radiation from the proposed mast. Mr X said the proposed site of the mast was next to a busy road with a history of fatal accidents. He said the mast would add to the dangerous nature of the road. Mr X also said the mast was not required because an existing mast nearby could be upgraded instead.
21. Several other residents in the village also objected to the proposed mast. The objections included impact on property value, health risks, highway safety, lack of screening and there being other more suitable locations.
22. The planning officer’s report shows the proposed mast met the criteria to be permitted development and was therefore subject to the prior approval process. The report noted that the highways officer did not object or provide any comments in relation to the proposal. The planning officer said the mast is welcomed on the basis that it would improve local connectivity. However, the officer considered that because the mast was so close to the highway the scope for landscaping and screening to reduce its impact was minimal. The officer considered there were more appropriate and sympathetic locations available nearby which would reduce the visual impact of the mast. The planning officer said the applicant had provided no justification as to why the mast needed to be in such a prominent and stark location, so close to residential housing, rather than somewhere more discrete.
23. The planning officer concluded the siting and appearance of the proposal was unacceptable and would seriously harm of the character and appearance of the local area. Because of this, the planning officer recommended refusal of prior approval and sent their decision notice to the developer. However, the letter was sent one day after the statutory timescale of 56 days expired.
24. Several months later, the Council published a notice which explained that the developer could build the telecom mast in line with its application. The notice explained that, while the Council had intended to refuse the application, it had not made its decision in time. Because of this, the Council had lost planning control of the development.
25. The Council recognised that the mast would harm the visual impact of the local area but considered the harm was limited. It said if the developer had provided further justification of why it chose this site, it is likely it would have approved the application.
26. The developer erected the mast and Mr X complained to the Council about the matter. He complained the mast would affect the value of his house and his and his family’s health. Mr X said he wanted the Council to provide equipment to monitor any radiation from the mast and compensation should he not be able to sell his home.
27. The Council responded to Mr X in April 2020. It confirmed to Mr X that it did not determine the application within the statutory timescales and therefore the developer was free to erect the mast. The Council said property prices were not factors the Council could consider when determining the application. It said its intention to refuse the application was based purely on the visual impact on the rural character of the area, and not on the value or impact on nearby residential properties. The Council said the developer had submitted the relevant exposure certificates to show that safety standards were met. Because of this, it could not have refused the application for health reasons.
28. The Council apologised to Mr X because it did not make the decision within time limits and because it did not inform local residents at the time. It said the mast is acceptable in terms of its relationship with neighbouring properties in terms of both health and visual impact. It said the impact on Mr X’s property in planning terms was always considered acceptable.
29. Mr X was unhappy with the Council’s response and asked the Council to consider his complaint at stage 2 of its complaints process. Mr X said the mast was not built in accordance with the plans and was taller than originally proposed. Mr X said the Council’s stage 1 response dismissed his concerns that the mast was an eyesore.
30. The Council responded to the stage 2 complaint. It said the developer had added an additional satellite which made it higher. However, this was within the parameters of the permitted development regulations and the mast did not exceed the permitted height of 20 metres. The Council acknowledged Mr X’s concerns about the visual appearance of the mast. However, it said for the reasons already stated, that the visual appearance was acceptable in terms of its relationship with neighbouring properties.
31. The Council said it has changed its systems to ensure future applications of the same type are determined within the correct timescales.
32. Mr X remained unhappy and complained to the Ombudsman.

My findings

33. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
34. Legislation states the Council should have determined the developer’s application for prior approval of the proposed telecom mast within 56 days of the date of the application. It did not do so until it was too late, and so lost planning control. That is fault.
35. I have found fault in the process and so must decide whether that fault has caused Mr X a significant injustice. Mr X is understandably disappointed that the Council lost planning control, but I note it has already apologised to him for this failure.
36. The planning officer’s report shows the Council had intended to refuse the application on the basis it would harm the character of the local area. Mr X claimed the mast will affect the value of his home and may impact on his and his family’s health. He was also concerned about highway safety. Mr X’s view is that had the Council acted without fault the mast would not be there. However, I cannot demonstrate with any satisfactory degree of certainty that the outcome would have been different. The Council may well have approved the application if the developer had provided further justification. In any event, the intended refusal was not specific to Mr X, to protect his individual interests or amenities.
37. The Council was satisfied the telecom equipment met the relevant health guidelines, and the highways officer provided no comments in regard to highway safety. The impact on the value of property is not a planning consideration and the Council deemed the mast acceptable in terms of its relationship with neighbouring properties.
38. Because the Council lost planning control, we cannot know what the outcome would have been. The Council has apologised to Mr X for its failure and it was appropriate for it do so. We would expect it to react the same way if others similarly affected come forward to complain.

Final decision

39. I completed my investigation. I found fault but the Council has already apologised to Mr X for its failure and there is no outstanding further injustice to him for me to remedy.

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Investigator's decision on behalf of the Ombudsman