The Ombudsman's final decision
Summary: Mr X complained that the Council failed to enforce an Article 4 direction which removed permitted development rights for a telecommunications mast site close to his home. He said his amenity and enjoyment of his home is adversely affected by noise from fans and cooling equipment installed at the site. We did not investigate part of the complaint because it is late. On the other parts, we found no evidence of fault.
The complaint
Mr X complained that the Council failed to enforce an Article 4 Direction made in 2002 which removed permitted developments rights for a site with a mobile telecommunications mast close to his home. Mr X says the Council’s Head of Planning did not know the Article 4 Direction existed until he told him about it. As a result, he considers the Council has effectively lost control over significant development of the site.
Mr X says he has lost enjoyment of his home and the constant humming noise emitted by equipment on the site affects his amenity. He wants the Council to carry out a site inventory to establish the planning status of installations, secure the removal of any unauthorised installations and remove equipment which produces noise above ambient background levels.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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) 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)
How I considered this complaint
I have discussed the complaint with Mr X and read his correspondence with the Council. I read the Article 4 direction and researched the planning records for the site on the Council’s planning portal. I viewed images of the telecommunications mast and Mr X’s property on a mapping website.
Mr X has complained to us before about the Council’s investigation of noise nuisance from the site. So this investigation is limited to the planning issues.
I gave Mr X and the council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant planning law Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set out in regulations. This type of development is known as ‘permitted development’.
Permitted development regulations allow certain telecommunications masts and equipment to be built, subject to a prior notification application. If the Council intends to refuse approval, it must notify the applicant within 56 days of receiving the application. Unless the applicant receives the notice within this time, the application is deemed to be approved.
The Secretary of State, or a council acting as the local planning authority, can remove specified permitted development rights by making an Article 4 direction which applies to a defined area. This means a planning application must be made to seek permission for development on the site. [The Town and Country Planning (General Permitted Development Order) (England) 2015].
Planning applications for a site subject to an Article 4 Direction must still be considered on their merits. Removing permitted development rights does not stop mean a council cannot grant planning permission development of the site.
The key facts Mr X’s house is close to an area of Council-owned land which is leased to a telecommunications company. There has been a large mast on the site since the 1970s which was originally a television transmitter. More recently it has been used as a telecommunications mast for mobile phone companies. Additional satellite dishes and associated equipment have been installed at the site over the years. Buildings on the site house air conditioning and cooling equipment with fans mounted externally.
Mr X says the fans emit a constant humming noise. They run continuously to cool equipment inside the brick buildings. He says the noise is clearly audible in his garden and inside his house in summer when the windows are open.
Mr X and other residents have longstanding concerns about the development of the site. In July 2002 the Council made an Article 4 Direction which removed permitted development rights to install, alter or remove any telecommunications apparatus and carry out ancillary development at the site.
Mr X knew the Direction had been made because he and other residents had lobbied for it. It was also published on the Council’s website.
Mr X says that Officer A, the former Head of Planning, told him over the telephone in late 2002 or early 2003 that the Council intended to amend the Direction to make it less restrictive for the telecommunications company. He says this followed criticisms from the regional government office about the Council’s handling of an investigation into an unauthorised satellite dish installed at the site. In the event the Council did not make any changes to the Direction.
Mr X says the telecommunications company has continued to make alterations and replace equipment at the site since 2002 without making planning applications. He says this denied him the opportunity to object to applications.
In late November 2021 a senior planning manager said in an email to Mr X that there was no Article 4 Direction for this site. Mr X corrected him and referred to the Direction. The senior manager immediately checked and confirmed the Direction existed. Mr X says he is concerned that the manager had approved planning applications for the site in ignorance of the Article 4 Direction which was intended to protect residents’ amenity.
I have examined the planning records on the Council’s website. They show the Council has decided ten planning applications since the Article 4 Direction was made in July 2002. The most recent application was received after Mr X complained to us so it is outside the scope of this investigation. The other applications span the period from 2005 to 2021.
The case officer’s reports and other documents for the earlier applications are no longer available on the Council’s website. But the reports for later applications all made reference to the Article 4 direction. The reports also: gave details of the proposal; set out the case officer’s views on the application; summarised the relevant law and guidance; summarised comments from the public and statutory consultees; and analysed the material issues.
The planning records show Mr X has submitted comments on most of the planning applications made since 2015.
My analysis Mr X made this complaint in January 2022. It is too late to investigate what the former Head of Planning told Mr X in late 2002 or early 2003 about potential changes to the Article 4 Direction. Mr X knew about this at the time so he could have brought a complaint to us then. We should not investigate this part of the complaint for this reason. And even if it had been made in time, the Council did not go on to amend the Article 4 Direction to make it less restrictive so there was no injustice to Mr X.
Mr X told me he was denied the opportunity to make objections because the company which leases the site did not always submit planning applications and carried out unauthorised development at the site. I do not consider it would be appropriate or proportionate to carry out a full review of the planning history of the site to identify whether the Council failed to investigate reports of alleged breaches of planning control over several years. The planning records list several planning applications the Council has determined since it made the Article 4 Direction in July 2002. Mr X submitted comments on most of those applications. If Mr X had concerns about unauthorised development at the site, he could have reported the alleged breaches to the Council at the time and requested a planning enforcement investigation. Mr X has also complained to us before about other planning issues at the site and knew he could have come to us if the Council did not investigate a specific alleged breach he reported.
Mr X has sent evidence that Officer A, a senior planning manager, wrongly informed him in November 2021 there was no Article 4 Direction for the site. Clearly that was a mistake. Mr X pointed out the error on the same day. Officer A then checked the Council’s records and confirmed the Article 4 Direction existed. As he corrected his statement immediately, I do not consider this was significant enough to be fault.
Importantly, the planning records show the case officers who prepared reports on individual planning applications for the site knew there was an Article 4 Direction and referred to it in their reports. The reports also set out the case officer’s assessment of the visual impact of proposed development and the impact on the amenity of residents. For this reason, I do not intend to find fault because planning decisions were not made in ignorance of the Article 4 Direction or without assessing the impact of proposed developments on local residents.
The purpose of the Article 4 Direction is to give the Council more control over development at the site which is very close to residential properties. It is fully aware of residents’ concerns about the impact of further developments on their amenity. But it must still consider each planning application on its merits and decide whether to grant or refuse permission. This involves weighing all the material planning considerations, one of which is the impact on amenity of residents.
The existence of an Article 4 Direction does not affect the Council’s assessment of the merits of each application. And it does not create a presumption that planning applications are more likely to be refused. It simply provides a mechanism for the Council to have more control over development by removing permitted development rights.
Final decision
I decided not to investigate part of the complaint because it is late and concerns a matter Mr X knew about more than 12 months before he complained to us. For the parts that were made in time, I have completed the investigation and found no evidence of fault.
Investigator's decision on behalf of the Ombudsman