The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to consult on a prior approval application for a 5G telecommunication mast. We do not consider the complainant has suffered enough injustice to warrant an investigation. Nor can we order the Council to remove the mast.
The complaint
Mr X complains the Council failed to consult on a prior approval application for a 5G telecommunication mast. He says the position of the mast affects his amenity and causes him alarm, distress, pain, and suffering. He wants the mast removed and neighbours consulted.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: any injustice is not significant enough to justify our involvement, or we cannot achieve the outcome someone wants, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council received applications for pre-planning application advice. Any advice given under these applications is not binding on the Council and they are not for public consultation.
However, it confirms it received an application for prior approval for a 5G telecommunication mast (the mast).
Prior approval sits between permitted development, which does not need planning permission, and full planning applications. This applies where the development is, in principle, permitted development, but the Local Planning Authority (LPA) must approve certain elements of the work. The procedure is designed to ‘fast track’ acceptable development but give LPAs limited control to regulate more controversial development.
The prior approval process allows local authorities to assess the impact of the proposed development on various issues, including siting and appearance. Local authorities have 56 days to determine whether prior approval should be granted or refused (and full planning permission required). If no decision is made within 56 days, prior approval is automatically granted.
The Council says it believed the prior approval application for the mast was invalid as it did not include a location plan. It advised the applicant and did not register or proceed with the application, it did not post a site notice or tell neighbours. However, it later discovered the application did include a plan and the application was therefore valid. However, because the Council had failed to decide the application within 56 days, permission was automatically granted.
The failure to recognise the valid application is fault. However, the law requires us to consider the injustice suffered by the complainant. In this case Mr X does not live next to the mast site, and he would not have received a letter telling him of the application. He may have seen a site notice.
The Council may only consider the siting and appearance of the mast. The mast is located on the opposite side of a grass verge on a main road which runs behind Mr X’s rear garden. The view of the mast is partially obscured by trees. Given the: separation distance from Mr X’s home the limited view of the mast from his garden; and the siting on a main road I do not consider that Mr X has suffered a significant personal injustice as a result of the failure to consult the public. I understand he suffers from stress and anxiety as he says guidance from the International Commission on Non-Ionizing Radiation Protection (ICNIRP) says people with certain medical conditions are at a higher risk from telecommunication masts.
However, the Council as LPA cannot consider objections relating to the potential health impacts of radio waves or electromagnetic frequencies (EMF) from mobile phone technology. Therefore, any injustice claimed by Mr X in terms of health concerns due to the installation of the mast is speculative.
Finally, Mr X wants the mast removed and the public consulted. As explained above, the mast has received automatic permission for prior approval. It is therefore lawful, and the Ombudsman cannot require its removal.
Final decision
We will not investigate Mr X’s complaint because we do not consider he has suffered sufficient injustice. Nor can we achieve the outcome he is seeking. Therefore, an investigation would not lead to a worthwhile outcome.
Investigator's decision on behalf of the Ombudsman