Summary: Mrs D complains about the Council’s consideration of an application for a telecommunication mast erected near her home. There was fault in how the Council dealt with the prior approval application for the mast. The fault meant the mast was approved when the Council’s intention had been to refuse it. The Ombudsman has upheld the complaint and completed the investigation. There is no significant injustice to Mrs D and the action taken by the Council to improve procedures is a sufficient remedy.

The complaint

1. The complainant (whom I refer to as Mrs D) complains about the Council’s consideration of an application for prior approval for a telecommunication mast. The Council made a mistake which meant that it issued its decision to refuse the application too late. The operator was therefore deemed to have permission and has erected the mast. The mast is near Mrs D’s home.

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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. 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

4. I considered the information provided by Mrs D. I asked the Council questions and examined its response.
5. I shared my draft decision with both parties and took account of Mrs D’s reply.

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What I found

The legal framework

6. Certain types of development do not require a grant of planning permission from the Council. The installation of telecommunication masts (masts) fall 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 then permission is deemed to be granted. (The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended))

What happened

7. On 21 June the Council received an application for Prior Approval to erect a mast near Mrs D’s home. On 16 August the Council notified the operator it had refused Prior Approval. The Council thought this was day 56 since receipt of the application, it was actually day 57. On 18 August the operator claimed for deemed consent to the Council. During August to November the Council sought legal advice and discussed mitigation measures with the operator. It agreed to paint the mast green to minimise its impact on the environment. The mast was erected in November. Mrs D, via her MP, subsequently complained. The Council issued its response in April explaining it had not notified the applicant of its intention to refuse within the required 56 day period, as a result there was deemed consent for the mast to be erected. The Council apologised for its error.

Was there fault by the Council

8. The Council accepts it failed to notify the operator about its decision within the required 56 day period. It had calculated the period from day after receipt rather than from the day of receipt.
9. As a result of the case, the Council has revised its procedures. It now works on a 50 day period with similar applications to give some leeway. Managers also monitor the progress and timeframes for these applications.

Did the fault cause an injustice

10. Were it not for the Council’s fault, the application for the mast would have been refused. Mrs D’s home is around 20 meters from the mast. There is public space between her house and the site of the mast. There is a substantial tree and vegetation growth in that space which screens most of the mast from the property.
11. I have considered Mrs D’s comments and I appreciate she is dissatisfied with the Council’s actions. However, given the tree screen, I do not see the mast has sufficient impact on her to warrant any remedy. This is in line with similar cases we have investigated. I consider the apology the Council has already made and the actions it has taken to ensure such an error cannot recur are sufficient a response.

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Final decision

12. There was fault in how the Council dealt with the prior approval application for a telecommunication mast. The fault meant the mast was approved when the Council’s intention had been to refuse it. The action taken and the apology given by the Council are a sufficient remedy. I have upheld the complaint (because of the fault that took place) and completed the investigation because there is no outstanding injustice.

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Investigator's decision on behalf of the Ombudsman