Summary: Mrs X complained the Council failed to consult her about an electricity substation which was built outside her property as part of the development of a new housing estate. The Council publicised the development in line with relevant law and policy. However, it failed to consider the substation as part of overall plans or whether it impacted on Mrs X’s amenity. It agreed to apologise for the frustration and uncertainty this caused. The substation is however under 15 metres in height and therefore, on balance, I cannot say the fault affected the overall outcome.

The complaint

1. Mrs X complains the Council allowed developers on a new housing estate to build an electricity substation outside her property without adequately consulting with her.
2. Mrs X says she was unaware of the plans for the substation. She says its proximity to her property has spoilt her view and reduced the value of her property.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered information from the Council including the relevant planning documents.
9. I considered relevant planning law.
10. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

Back to top

What I found

Planning law and guidance

11. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
13. 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.

Publicity of planning applications

14. Regulations set out the minimum requirements for how councils publicise planning applications.
15. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
18. The Council’s SCI defines a major development of 10 or more dwellings. It says planning applications for major developments will be publicised by local newspaper advertisement, site notices or neighbour notification letters.

Permitted Development

19. 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’.
20. The Town and Country Planning (General Permitted Development) Order 1995 outlines what is classed as permitted development for electricity undertakings. It outlines that small substations under 15 metres in height can be installed on land under permitted development.
21. However, development that might otherwise be deemed permitted development is part of a planning application or completed as part of approved development, then the Council can consider and control it in the same way it would any other planning application.

Application types

22. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some details, usually including details of access to the highway. An outline approval can be followed by ‘reserved matters’ applications, to provide all or most of the details needed to make a decision.

What happened

23. Mrs X lives in a property which backs onto land which the is being regenerated with a new housing development, managed by a housing association.
24. The Council gave outline planning permission for the development in 2018 and in 2020, the developer submitted a series of reserved matters applications. As the proposal was classed as a major development the case officers report shows the Council publicised the proposals using site notices and through press releases. Records also show the housing association website provided updates at the time.
25. The planning records show the developer submitted a site layout plan in July 2020 which did not show the location of the substation. The developer submitted a new proposed site layout plan at the end of August 2020. This plan showed the site boundary ran up to the rear of Mrs X’s property and included a substation very close to Mrs X’s garden fence, leaving a small strip of land for access.
26. The case officer’s report is dated three days after the submission of the final proposed site layout plan and makes no mention of the substation. The case officer considered the proposals acceptable and recommended approval of the reserved matters. The Council issued its decision notice the same day.
27. Mrs X said the developer began work on the substation in September 2021. She complained to the Council via her MP. Mrs X said she was not informed about the planned substation and only became aware when work started. Mrs X says the substation is an obstruction and an inconvenience and hinders access for her disabled mother. Mrs X says it has reduced the value of her home.
28. The Council responded to Mrs X’s complaint in June 2022. It said it publicised the development using site notices along each boundary of the development which is line with its lawful obligation.
29. Mrs X remained unhappy and complained to us.

The Councils comments to us

30. The Council told us the substation was constructed on behalf of National Grid and because the building is under 15m in height it is considered permitted development and did not require planning permission. It provided no evidence to show it decided the structure was permitted development at the time it received the plans.

My findings

31. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
32. One of Mrs X’s main complaints is that she was not notified of the plans to build a substation outside her property. The Council publicised the development in line with relevant law and policy set out in its SCI. It publicised it in the press and used site notices. There was therefore no obligation for it to send neighbour notification letters.
33. However, the substation only appeared on revised plans three days before the decision notice. None of the earlier drawings showed the substation. Therefore, even if Mrs X had received notification of the application, she could not have become aware of the substation in time to submit comments. Given the late submission of the substation drawings, the most likely explanation is that the case officer simply failed to notice it. If it had been noticed, we would expect some evidence of consideration of this issue, and there is none. This is fault.
34. The Council said the substation is lawful without its permission, because it fits the criteria for permitted development. This may be so, but as it was included as part of the plans we would have expected it to have been considered along with other material planning matters, including its potential impact on neighbouring amenity. I have found fault in failure to consider or provide evidence of consideration of this issue. I find this fault is likely to have caused Mrs X frustration, confusion and uncertainty.
35. However, I cannot say the outcome would have been any different. My reasons for saying this are as follows:
• if the substation had been built separately from the rest of the development, it could have been deemed permitted development and so no permission from the Council would have been required;
• It is low building that does not overshadow Mrs X’s home and is unlikely to cause a significant injustice we could remedy. Even if it had been part of the application, I cannot say it is likely the Council would have refused it.

Back to top

Agreed action

36. Within one month of the final decision the Council agreed to:
• apologise to Mrs X for the frustration caused to her when the Council failed to consider whether the substation impacted on her amenity.
• remind its planning officers of the need to consider all key material planning issues included on the plan.
37. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

38. I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Back to top

Investigator's decision on behalf of the Ombudsman