Summary: We will not investigate Ms X’s complaint about a crane erected on a building site near her property. There is insufficient evidence of fault and if Ms X feels the developer has trespassed or caused damage to her property, this is a private matter which is best considered by a court.

The complaint

1. Ms X complains about a crane erected on a building site near her property. She says the crane oversails her property which is a safety risk and causes distress. She wants the Council to remove the crane from the site.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council granted planning permission for development of land near Ms X’s property. Ms X complained to the Council that the developer had erected a tower crane on the site without planning permission.
7. In its responses to Ms X, the Council told her:
• There was no condition attached to the planning approval regarding the siting of a crane. Therefore, it had no power to take any enforcement action.
• If Ms X had concerns that the contractors were not operating the crane safely, she could contact the Health and Safety Executive (HSE) to report this. This was the appropriate body to consider a complaint about site safety.
• Any concerns about the location of the crane and whether it oversails her property were a civil matter between her and the developer.
8. We will not investigate this complaint. The planning permission granted does not include any condition relating to the siting or size of a crane. There is insufficient evidence of fault in the Council’s decision that it cannot take enforcement action to warrant an investigation.
9. Where a developer wishes to erect a crane which oversails private land, the developer should seek permission from the landowner in advance. Any dispute about this is a private matter between the developer and the landowner. Private claims for trespass or damages are best considered by a court. If Ms X is dissatisfied with the developer’s actions, it is reasonable for her to take the matter to court.

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Final decision

10. We will not investigate Ms X’s complaint because there is insufficient evidence of fault and it is reasonable for Ms X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman