Summary: Mr and Mrs A complain errors by the Council resulted in a telecommunications mast being erected near their home. The Ombudsman has upheld the complaint and completed the investigation. The Council has already accepted it was at fault, apologised and taken steps to ensure the error does not reoccur.

The complaint

1. The complainants (whom I refer to as Mr and Mrs A) say the Council’s errors meant a telecommunications mast was erected near their home despite the Council intending to refuse approval.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

5. I have considered the information provided by Mr A. I asked the Council questions and examined its response. I also clarified the distance from the mast to the property with the Council.
6. I shared my draft decision with both parties and considered their responses.

Back to top

What I found

What happened

7. In March 2021 the Council received an application for Prior Approval to erect a telecommunications mast. The Council consulted neighbouring properties and advertised the application. It received several objections and on 12 May it refused the application. On 17 May the applicant’s agent sent a 56-day claiming letter. The Council responded 57 days later which meant the application was approved by default.
8. On 27 July Mr A notified the Council that works had started at the site to erect the telecommunications mast. The Council’s Highways Team had approved a permit for works to the footpath/ highway. On 29 July the Council told Mr A it had consulted its Legal Team and found the 56-day period for refusing Prior Approval had not been met. This meant the mast could be erected and was immune from enforcement action. The Council had updated its software to correctly calculate the 56-day period.
9. In August the Council continued to look at options to relocate the mast. In September the Council met the applicant and discussed whether it could use its General Fund to cover the costs of relocating the mast. The Council determined this was not an option because the General Fund’s balance would have to then be topped up by taking money from other services.
10. The Council responded to a formal complaint at the end of October. It explained the software error and how it had looked at relocating the mast. A stage two (escalated complaint) response was issued in March 2022 reiterating the Council’s position and again providing a detailed response. It offered all residents who had been formally consulted on the application £250 in recognition of its error.

What should have happened

11. Certain types of development do not require a grant of planning permission from the Council. The installation of telecommunication masts falls into one of the permitted categories, provided it meets certain requirements. The operator must make a Prior Approval application to the Council. The Council can only consider the siting and appearance of the proposed development. The Council has 56 days to let the mast operator know of its decision on whether prior approval is needed for its siting and appearance. If the Council does not respond within the 56-day period then permission is deemed to be granted. (The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended))
12. The Highways Team grant permits for works to the highway/ footpaths. Prior to October 2021 there was no procedural requirement for officers to consult with the Planning Team to check if the works had any form of planning approval.
13. The Council’s General Fund is used for specific purposes (such as staff pay increases) and to mitigate risks (including Covid). The Council is required to maintain an adequate balance in the Fund. It can consider whether the Fund should be used for one-off projects but has to determine whether the action would be reasonable given the balance of the Fund would need to be topped up by cuts to other services.

Was there fault by the Council

14. The Council has already accepted in 2021 that it was at fault regarding the 56-day Prior Approval period. Its software was wrongly set to calculate the 56 days from the day after receipt of the claiming letter. This meant the Council did not reply to the applicant within the required timeframe and Prior Approval was automatically granted. The Council has now changed its software so that the 56-day period is correctly calculated.
15. The Council did not have a process whereby Highways officers would check with Planning on receipt of a permit application. The Council has now implemented a new procedure where Highways will make checks with Planning when it receives certain permit applications. That said, even if these procedures had been in place it would not have changed the fact that Prior Approval was in place for the mast.
16. The Council considered if it could and should fund the relocation of the telecommunications mast. This included looking at whether the General Fund could be utilised. I am satisfied the Council acted reasonably an considered all the viable options open to it. There was no obligation on the Council to fund a relocation and it determined funding was not available. There is no fault in this matter. Mr and Mrs A disagree with the Council’s decision, but it was one which the Council had the right to take. The Ombudsman will not question the merits of such decisions in the absence of fault.

Did the fault cause an injustice

17. Whilst there has clearly been fault by the Council I have to consider if this resulted in an unremedied injustice to Mr and Mrs A. They say the distance from their home to the mast is 44 meters and from the boundary of their garden is 21 meters. The Council checked and calculate the distance as 50 meters from the house and 25 from the garden boundary. I do not see the mast has a sufficient impact on them to warrant further remedy in either calculation of the distance from the property. This is in line with other cases previously considered by the Ombudsman. The £250 already offered by the Council, along with its apology and explanation, is a reasonable remedy. There is no basis for the Ombudsman to ask the Council to move the mast or ask for a large amount of financial redress.

Back to top

Final decision

18. There was fault in how the Council dealt with a Prior Approval application for the telecommunications mast. The fault meant the mast was approved when the Council had intended to refuse it. The actions already taken by the Council provide a sufficient remedy. I have completed the investigation and upheld the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman