The Ombudsman's final decision:
Summary: Mr and Mrs C complained the Council failed to properly consider a planning application for a telecommunications mast near their property. Mr and Mrs C said this would cause an overbearing and visually intrusive development as well as noise nuisance. We have found no evidence of fault.
- The complainants, whom I shall refer to as Mr and Mrs C, complain the Council failed to properly consider a planning application for a telecommunications mast near their property. In particular, Mr and Mrs C say the Council did not consider an alternative site or residents’ objections about dominance, appearance, highway safety and noise.
- Mr and Mrs C say because of the Council’s fault, they will suffer from an overbearing and visually intrusive development outside their property which will also cause noise nuisance.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mr and Mrs C and discussed the complaint with them. I have considered the information available on the Council’s planning website. I have also considered some information from the Council and provided a copy of this to Mr and Mrs C. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.
What I found
- The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
- All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
- Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
- Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
- Councils have a statutory duty to publicise applications and to consider representations (either for or against the application) which people make. But that is not the same thing as consulting with the public.
- The Council received a planning application to install a replacement 20 metre telecommunications monopole with antenna and cabin equipment in August 2019.
- The Council has provided photographs from a site visit dated 20 August 2020. The Council has also referred me to the site description as set out in the subsequent case officer’s report to the Planning Committee. Although there is no requirement to complete a site visit, I would remind the Council that the Ombudsman considers it good practice where a site visit is undertaken to maintain a contemporaneous written record as well as photographs.
- The statutory publicity requirement for this type of application was for a site notice or notice to any adjoining owner or occupier. The Council sent neighbour notification letters in September 2019 and has provided a copy.
- Mr C made a representation in September objecting to the proposals. Mr C noted the height of the proposed mast and set out his concerns about the impact on his property in terms of overshadowing and overbearing nature given the height of the mast and proximity to his property as well as safety concerns about the location near a busy junction. Mr C suggested the location should be moved further south to the middle of the central reservation at its wider point instead.
- The Council received comments from Highways dated September 2019 which confirmed no objection to the application. The Council received further comments from Highways in December. These confirmed Highways had reviewed the application in the light of concerns raised about visibility and sought changes to the location of the cabinets and pole to within a particular area to ensure appropriate sightlines of approaching traffic for pedestrians using the crossing.
- The application was due to be considered at the Council’s Planning Committee in December 2019. However, the minutes for that meeting record the application was withdrawn from the agenda after the late objection from Highways.
- The Council subsequently received amended plans. It is possible for an applicant to suggest changes to an application before the LPA has determined the proposal. It is also possible after the consultation period for the LPA to ask the applicant if it would be possible to revise the application to overcome a possible objection. It is at the discretion of the LPA whether to accept such changes, to determine if the changes need to be reconsulted on, or if the proposed changes are so significant as to materially alter the proposal such that a new application should be made. Where an application has been amended it is up to the LPA to decide whether further publicity and consultation is necessary in the interests of fairness. In deciding what further steps may be required LPAs should consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended.
- The Council sent further notification letters in March 2020 and has provided a copy. Mr and Mrs C made a further detailed representation in April about the amended application. The representation says they were made aware of the amended application through their local Councillor rather than site notice or notification letter. Mr and Mrs C also raised concerns about the timing of the application given the national restrictions in place at the time.
- The Council has provided a copy of the notification letters sent in September 2019 and March 2020 and Mr and Mrs C’s address is included on the notification list. On balance, I am satisfied the Council met the required statutory publicity requirements and I cannot say Mr and Mrs C failed to receive the March 2020 letter due to some fault by the Council. In any event, I do not consider further investigation on this point is warranted as it is clear Mr and Mrs C were aware of the amended proposals and were able to make representations both in writing and at the subsequent virtual Planning Committee. It was not fault for the Council to continue with its determination of the application.
- The Council received comments from Highways in April to the amended proposals which confirmed no objection. Highways noted the proposed mast and cabinets had been repositioned in the verge due to the previously identified conflict with the visibility of pedestrians using the adjacent pedestrian crossing. Highways were satisfied the revised position of the mast and equipment cabinets was satisfactory. I accept that Mr C who has relevant experience takes a different view. This is not, in itself, evidence of fault.
- The case officer’s report set out the detail of the proposals and the relationship of the site to the existing mast and equipment, junction and residential properties. The report also included a summary of the representations received in response to the publicity for the application in both September 2019 and March 2020. The report provided a detailed assessment of the relevant policies, representations and material considerations which included the issues of alternative sites, visual impact, highway safety and noise. The specific issue of potential overshadowing was also included in a note to the Chair which was made available to all Members ahead of the meeting as set out in the published minutes.
- The case officer’s report concluded the proposal complied with the relevant policies and that “the proposed location and design of the mast were the most appropriate in minimising impacts to the wider area. In weighing the balance between impacts on visual amenity and the wider benefits that the mast would bring in delivering a high quality and reliable communications infrastructure, it is considered that these benefits outweigh any perceived harm.” The case officer recommended the application be granted subject to conditions. One of the conditions subsequently imposed required noise from the cabinets to not exceed the existing background noise levels.
- The Council’s Planning Committee considered the application in June 2020 through a virtual meeting. The Council provided guidance on its website about how individuals could participate in such meetings and details about the process was sent by email to all registered speakers. Mr C spoke at the meeting.
- The minutes from the Planning Committee set out that a presentation was given which showed the application site and proposed development and that residents made representations against the proposals and two Councillors also spoke against the proposals. The Committee resolved to grant planning permission subject to conditions. There was some debate and the vote was not unanimous.
- Mr and Mrs C consider the Planning Committee should have deferred their decision to allow further investigation of an alternative site. They also consider there was confusion about the location of a potential alternative site during the course of the meeting.
- Using what is said in a Committee meeting may help to establish positively that something was addressed, but debate will not (and cannot) cover all issues and will not establish the thinking behind a decision. If something is said which is factually incorrect, it does not mean it is taken into account as the reason for a decision. In the case of R (on the application of the Governing Body of Langley Park School for Girls) v Bromley Borough Council and another, Mr Justice Wyn Williams said:
“It is wholly wrong, in my judgment, to categorise what a councillor may say in the course of the ebb and flow of a debate such as takes place in advance of a vote upon a planning proposal as being the reason or reasons for his or her decision. The whole point about collective decision making is that the members of the decision making body collectively agree on what is to happen and why it is to happen. What each may say during the course of debate in advance of a decision cannot be regarded as collective even if, which I doubt, it is anything other than a possible guide to the reasons motivating that person.”
- In the above case, Mr Justice Wyn Williams decided the reasons for the decision were those agreed in the subsequent minutes. This means we should not rely on incorrect statements during a debate as tainting the decision or establishing reasons for a decision. We should normally not go beyond the reasons for the decision set out in the case officer’s report, Committee minutes and decision notice.
- The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
The case officer’s report provided a detailed assessment of the amended plans and the impact of the proposals on residential amenity before recommending approval. I am satisfied the Planning Committee had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so including resident’s objections and the issue of alternative sites. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman