London Borough of Islington (23 021 409)

Category : Other Categories > Land

Decision : Upheld

Decision date : 07 Nov 2024

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to investigate their concerns or obtain the necessary licence in respect of crane equipment at a neighbouring site oversailing her property. We find the Council’s delays in investigating and responding to Mrs X’s concerns and correspondence are fault. This fault has caused Mrs X an injustice.

The complaint

  1. The complainant, Mrs X complained the Council failed to investigate their concerns or obtain the necessary licence in respect of crane equipment at a neighbouring site oversailing her property.
  2. Mrs X says the Council’s failure to properly monitor or accept responsibility for its contractors’ operations at the site caused significant distress and frustration and put her to her to unnecessary time and trouble in trying to resolve the matter.

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The Ombudsman’s role and powers

  1. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
  3. 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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mrs X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mr and Mrs X; and
    • Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Several years ago the Council granted itself planning permission to redevelop a site behind Mr and Mrs X’s property. The Council appointed Company 1 to carry out the works. In the Spring of 2022 Company 1 installed a tower crane at the site.
  2. Mr and Mrs X contacted the Company 1 to raise concerns that the crane oversailed their property. Company 1 contacted the crane company to check whether it was possible for the crane to oversail neighbouring properties. The crane company confirmed the plan radius and tower head drawings showed no signs of oversailing.
  3. In late June 2022 Mr and Mrs X contacted their local Councillors to raise concerns that although they had been assured there would be no oversailing the crane did oversail their garden. They were concerned the jib and projecting counter-weight assembly, comprising of what appeared to be five large concrete cubes were, at times, suspended over the end of their garden.
  4. They also understood that when not in use the crane was set in “weather vane” mode so that it turned automatically to minimise the effect of strong or high winds. As a result the jib could swing in any direction, and on 28 May 2022 was pointing directly towards the rear wall of their house and significantly overhanging their garden and rear wall.
  5. Mr and Mrs X asked the Councillors to visit to witness the oversailing and to either re-locate the crane or for Company 1 or the Council to fully indemnify them against all aspects of risk. They said they were unable to use their garden with the crane operating above them.
  6. The Councillor raised Mr and Mrs X’s concerns with the Council in July 2022. In its response the Council advised Company 1 had contacted the crane company to get the most accurate information. The crane company had confirmed that when in the “parked” position at night or weekends the crane had a limited radius of seven metres. Company 1 understood it was not physically possible for the crane or counter weight to oversail Mr and Mrs X’s garden. The Council said Company 1 had offered to visit Mr and Mrs X to discuss their concerns.
  7. Representatives from Company 1 visited Mr and Mrs X on 11 August 2022 to view the position of the crane from their garden. Following the visit Mrs X wrote to Company 1 noting they had agreed the A frame oversailed their property. Company 1 responded to advise that they had stated the concrete ballast does not oversail at any point, and the crane had been set out correctly in line with the drawings. However the A frame looked like it needed to be professionally checked.
  8. On 12 September 2022 Mr and Mrs X’s solicitor sent a Letter Before Action to the Council asserting the Council had trespassed on Mr and Mrs X’s property. They asked that the crane be moved so as to not oversail Mr and Mrs X’s property failing which they would issue legal proceedings for trespass.
  9. In late September 2022 Company 1 confirmed that to alleviate Mr and Mrs X’s concerns, it had consulted the crane manufacturer and was able to tether the crane out of working hours so that the jib always pointed due west. This would prevent the crane from slewing round so that it would no longer point towards their property. Company 1 suggested tethering the crane meant it was no longer necessary to carry out an independent survey.
  10. Mr and Mrs X’s solicitor asserted this did not resolve the matter. They asked that in the event tethering the crane removes the trespass, what the Council’s proposals were to resolve the trespass that had already occurred. The Council confirmed the tethering was a precautionary measure to ensure no oversail was even potentially possible.
  11. The Council said there was no actual evidence that oversail had taken place. It said that if Company 1 believed oversail had taken place they should have applied for licence immediately. The Council said the responsibility rests with Company 1. Potential oversail during the working day was not and never had been possible as the crane was controlled and remained within its given radius. The Council said the tethering would ensure the same when the crane was not in use.
  12. Mr and Mrs X’s solicitor maintained this was not sufficient and that an independent investigation should be conducted.
  13. A few days later on 1 October 2022 Mr and Mrs X say a serious incident occurred when the jib of the crane rotated anti-clockwise and oversailed theirs and their neighbours’ gardens. Mr and Mrs X’s daughter was in the garden when the cable and chains passed directly overhead. They reported the incident to Company 1. Representatives from Company 1 visited Mr and Mrs X on 6 October 2022. Mr and Mrs X say the managers confirmed what had happened and that the crane operator had been dismissed. The managers also apologised for what had happened.
  14. Company 1 wrote to Mr and Mrs X on 18 October 2022 setting out the action it had taken to ensure the crane did not oversail their property. It said it had removed the agency crane driver from site and had the regular crane driver back. The crane driver was fully briefed on how to adhere to the exclusion zone while the crane was in operation and continued to operate without the need to oversail. The site team continued to monitor and manage the situation.
  15. In early November 2022 the Council told Mr and Mrs X it would instruct Company 1 to carry out a survey to review the boundary, location of the crane and any potential risk of oversailing Mr and Mrs X’s property.
  16. The survey was carried out on 23 November 2023. The survey report said the drawing produced demonstrated it would be possible for the counterjib to oversail the boundary by 0.49 metres at worse.
  17. Company 1 provided the Council with its lifting plan which identified ‘no lifting zones' and the operating procedure it had implemented to prevent oversailing of adjacent properties. It also confirmed the crane would be fitted with an anti-collision system which would alert the crane operator and prevent any oversailing into the identified no lifting zones. It also said it was continuing to tether the jib when not in use so that it could not rotate or oversail the neighbouring gardens. Company 1 considered these precautionary measures eliminated the risk of oversailing.
  18. The Council provided a copy of the report to Mr and Mrs X’s solicitors on 29 November 2022.
  19. Having considered the report Mr and Mrs X wrote to the Council noting the report indicated oversailing could take place. They asked the Council to proceed with an application for a licence.
  20. The Council responded to advise that while the report said oversailing can take place, Company 1 had advised it had put measures and procedures in place to prevent any oversailing. As a result Company 1 would not be applying for an oversail licence as they do not consider it necessary.
  21. In February 2023 Mr and Mrs X contacted the Council’s Legal department asking that they asses the situation and apply for a licence.
  22. The Council confirmed it had again discussed the matter of potential over-sail with Company 1 who should now be dealing with the matter. It again said that Company 1 should have applied for an over-sail licence if they believed there was potential oversail, in line with its contractual responsibilities. The Council advised that any evidence of oversail should be sent to Company 1.
  23. The crane was dismantled in early April 2023.
  24. The following day Mr and Mrs X made a formal complaint to the Chief Executive of the Council. They said they had repeatedly asked the Council to apply for a licence to oversail to correct and formalise the situation but it had refused and denied the need. Mr and Mrs X said this left them in an unacceptable situation where Company 1 accepted oversailing was taking place and the independent survey confirmed oversailing could take place yet the Council refused to address it.
  25. Mr and Mrs X chased a response in late April 2023, setting out in more detail their concerns about oversailing. They said they had over 40 photographs of incidents of oversailing and moments of concern. This included overfilled skips without netting or tarpaulins and large open topped bags of white powder. They said one bag had split and dust poured from it as it passed over their property leaving foliage coated in white material.
  26. The Council responded in May 2023 and confirmed that as the freeholder of the site the Council was ultimately responsible for any issues on site. Company 1 was appointed to deliver the scheme and was contractually bound to apply for any licences required to carry out the works safely. Company 1 had advised the Council there were measures in place to ensure oversail did not take place and there was no need to apply for a licence.
  27. It set out the action it had taken since Mr and Mrs X first raised concerns. The Council noted the independent report said that over-sail of up to 0.49 metres could have taken place but did not definitively state an over-sail did take place. It also noted that despite the Council’s specific instructions to do so, Company 1 had not engaged with Mr and Mrs X since issuing the report. The Council would address this with Company 1.
  28. The Council offered Mr and Mrs X £250 as a good will gesture in recognition of the inconvenience they had experienced and the time taken to resolve the matter. It also suggested that if Mr and Mrs X considered an infringement had taken place they should take legal advice and provide evidence to the Council’s litigation team.
  29. As Mr and Mrs X were not satisfied with the Council’s response they wrote to the Council again in June 2023 asking them to assess and resolve the matter. They were concerned that the Council had repeatedly said it was Company 1, rather than the Council’s responsibility to apply for a licence and that Mr and Mrs X would need to prove oversailing was occurring. Although the Council had now accepted ultimate responsibility rested with the Council, it accepted at face value Company 1’s denials that oversailing had ever occurred.
  30. Mr and Mrs X maintained oversailing did occur and questioned why the Council had not carried out simple tests to confirm this. They said they had lost the use of their garden for over 350 days and experienced stress and anxiety. Mr and Mrs X considered the offer of £250 derisory.
  31. The Council responded in August 2023, and apologised for the delay. It reiterated that Company 1 did not believe a licence was required. The report confirmed that oversail was possible but did not confirm an oversail did actually take place. For this to be confirmed proof needed to be provided and reviewed. The Council said the best way to resolve the issue was for Mr and Mrs X’s legal representatives to submit evidence to the Council’s litigation team.
  32. In December 2023 Mr and Mrs X wrote to the Chief Executive setting out their concerns and asserted the Council should have taken action to directly establish the oversailing. Mr and Mrs X also wrote to the leader of the Council asking them to intervene to ensure the matter was resolved.
  33. In its response the Council reiterated the action it had taken to deal with the issue of potential oversail. It again suggested if Mr and Mrs X believed they had a claim for damages they should contact the Council’s litigation team.
  34. Mr and Mrs X remained dissatisfied and complained to the new Chief Executive that their correspondence had not been logged as a formal complaint or given a complaint reference number. They also complained that the Council’s recent response had not addressed their concerns.
  35. The Council agreed to investigate their complaints at stage 2 of its complaint procedure. The Council then responded in April 2024. It apologised for the delay in progressing Mr and Mrs X’s complaint through the complaint process. It said it had treated their letter in December 2023 as correspondence rather than a complaint.
  36. In relation to the concerns of oversailing the Council referred to its earlier corresponded and the report which confirmed an oversail could have taken place. It noted Mr and Mrs X were advised to pursue this with the Council’s litigation team if they believed an infringement had taken place. The legal team had not received any correspondence from Mr and Mrs X.
  37. The Council advised Mr and Mrs X this issue was outside the remit of the complaints process and their request for professional and legal fees was a legal matter.
  38. In addition to the £250 the Council had previously offered, it also offered to pay Mr and Mrs X £300 in respect of the failure to progress their complaint through the complaint procedure and the distress and inconvenience this caused.
  39. Mrs X does not consider this adequate addresses their complaint and has asked the Ombudsman to investigate their concerns. Mrs X maintains the Council failed to address its ultimate responsibility to fully investigate the report of oversailing on their property. And to apply for an appropriate licence. Mrs X says this caused them immense distress and not being able to enjoy their small garden was a detriment to their health and wellbeing.
  40. In response to my enquires the Council says it did not monitor the crane but was in ongoing dialogue with Company 1 who was monitoring the crane. Company 1 does not have any monitoring records but says there was regular visual monitoring or observation by the site management staff. They were asked to watch the crane closely to ensure it was being operated in line with the agreed protocol.
  41. The Council says based on the professional advice it received it was not deemed necessary for the Council or Company 1 to obtain a licence as there was no risk of the crane oversailing.
  42. It also says it did not receive any complaints from other residents in relation to the location of the crane or potential over-sailing.
  43. In response to the draft decision the Council acknowledges there were delays but makes a distinction between the issue of the crane and responding to correspondence. It says it responded to concerns about the crane immediately. Any delays were in the time taken to respond to Mrs X’s correspondence.
  44. Mrs X has also responded to the draft decision and maintains senior officers at a corporate level should have investigated their concerns about oversailing and ensured either Company 1 or the Council obtained a licence. She is concerned there are no records of any monitoring of the crane activity by either Company 1 or the Council.
  45. In addition, Mrs X suggests a possible explanation for what transpired is that the base of the crane was not positioned in accordance with the plan drawing which resulted in the overhang.

Analysis

  1. The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to decide whether the crane oversailed Mr and Mrs X’s property, or whether a licence was necessary. Any dispute regarding oversailing or trespass would need to be resolved by the court.
  2. Our role is to look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mr and Mrs X disagree with the decision. Where we find fault, we determine whether a significant injustice was caused to the individual complainant.
  3. There is no dispute the crane had the potential to oversail Mr and Mrs X’s property by a maximum of 0.49 metres. However Mr and Mrs X and the Council/ Company 1 have differing views on whether the crane did oversail and whether a licence was necessary.
  4. Although the Council did not obtain a licence as Mrs X requested, it is clear from the documentation that it did ask Company 1 to investigate her concerns of oversailing. Representatives from Company 1 visited Mrs X’s property, discussed the possibility of oversailing with the crane company and introduced measures to ensure the crane could not oversail while not in operation. They checked the radius of the crane and confirmed it was correctly position in accordance with the drawings. Company 1 also obtained an independent survey and says the site managers were asked to monitor the crane as they went about their business on site. The Council was satisfied from the evidence available there was no risk of oversailing and it was not necessary to obtain a licence.
  5. Mrs X asserts the Council should have carried out its own investigation but we would not criticise the Council for instructing its agents to do this. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions.
  6. While I consider the Council/ Company 1’s actions were appropriate there were delays in carrying out the independent survey and in responding to Mrs X’s correspondence and concerns. It is also disappointing that there are no records of Company 1’s monitoring. The Council also accepts there were delays in the complaint process.
  7. I consider these delays amount to fault.
  8. Having identified fault must consider whether this has caused Mrs X a significant injustice. Mrs X was clearly concerned about the position of the crane relative to her home. The delays in carrying out a survey and in responding to her concerns will have added to Mrs X’s distress and uncertainty. As will the delays in the complaint process.
  9. The Council has offered to pay Mrs X £250 in recognition of the inconvenience she experienced and the time and trouble she was put to. And a further £300 for the delays in the complaint process and the distress and inconvenience caused.
  10. I consider this to be an appropriate offer. It is in line with our guidance on making symbolic remedy payments.

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Agreed action

  1. The Council has agreed to apologise to Mrs X and pay her £550 in recognition of the inconvenience and distress she has experienced and the time and trouble she has been put to as a result of the fault identified.
  2. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

  1. The Council’s delays in investigating and responding to Mrs X’s concerns and correspondence are fault. This fault has caused Mrs X an injustice.

Investigator’s fault decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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