By Sindri Bergsson, Special Counsel & Courtney Reylin, Lawyer

In this matter, the NSW Supreme Court considered a claim in nuisance by a home owner against their neighbour seeking costs of rectifying and making safe an overhanging rock boulder.

Background

This case concerned a boulder which overhangs a 20 metre cliff. At the base of the cliff is the Plaintiff’s property (Plaintiff’s Property).  The boulder is on the land of three parties; the plaintiff; the first defendant being the Northern Beaches Council and the second and third defendants, Mr and Mrs Spencer who own the land bordering the Plaintiff. The largest portion of the boulder is on the Spencer’s land.

In 1999 when Mr Frost purchased the Plaintiff’s Property, geotechnical engineers advised he should not worry about the boulder. In late February 2021, Mr Frost was advised by a further geotechnical engineer that the boulder was an unacceptable fall hazard risk and ordered more detailed assessments to take place. Mr Frost forwarded this to the Council and in February 2021, a council officer advised Mr Frost that the situation was life threatening and he should vacate Plaintiff’s Property. The Council ordered for further reports to take place and these reports concluded that the boulder had not moved for hundreds of years but it will fall at a date, which is completely unpredictable and when the boulder falls, it would demolish Plaintiff’s Property and possibly affect properties further downslope. Accordingly, three remediation options were set out, but only one was agreed by all parties as the safest option. This was to remove the overhanging portion of the boulder, stabilise the remaining rear portion by rock bolting and remove or stabilise the other small hazards on the cliff face. This option had an estimated cost of $683,650.00.

On 21 March 2022, Mr Frost commenced proceedings against the Council and the Spencers, submitting that the law of nuisance obliges the defendants to abate the nuisance, and renders them liable to carry out all necessary works to remove the boulder and other identified rock hazards, or otherwise make safe the boulder by partial removal, rock bolting, meshing or other secure engineering. Mr Frost also sought exemplary damages.

Legal Reasoning

The court noted the following:

• The hazard is entirely the work of nature and has not been increased or modified by any occupant of the lane on which it stands.
• The Spencers’ resources are limited. Their home is their major asset and Mr Spencer gave evidence as to the financial strain any repayments would have on his family. Their savings were in the amount of $100,000.00 which were earmarked for the cost of proceedings.
• On the other hand, Mr Frost has substantial unencumbered assets and under cross-examination he stated that he would be able to fund the whole cost of the remediation being $683,650.00.
• The court importantly noted that Mr Frost had not offered to bear any part of the burden in payment.

In assessing whether the boulder was a nuisance, the Court considered Goldman v Hargrave (1966) which established the general duty of care to remove or reduce a hazard so that it does not harm a neighbour. The Court also considered Leakey v National trust for Places of Historic Interest of Natural Beauty (1980) which established that a landowner that had a naturally caused nuisance was only to afford a neighbour opportunity to abate that nuisance. Together, these cases establish that a landowner has a measured duty of care to take such steps as are reasonable in all circumstances to prevent or minimise the known risk of injury or damage to the neighbour and no more than that.

In the present case, the risk to the Plaintiff’s Property was noted as very substantial. However, the question was whether reasonable steps in all of the circumstances requires abating the nuisance by removal of the overhang and bolting of the remainder of the boulder. The circumstances the Court considered included the nature and origin of the hazard, the cost of removing it, the relative resources of the parties, the plaintiff’s knowledge of the hazard when he acquired the land and his predecessors’ contribution to the creation of the risk by building beneath the boulder, contrasted with the absence of knowledge at the time of acquisition and any active contribution since to the state of affairs by the defendants, and the absence of any offer of contribution by the plaintiff.

Giving weight to these circumstances, the Court was not satisfied that the reasonable steps Defendants should have taken were to incur the $683,650.00 cost. In arriving at this decision, the Court took into account the following:

1. the Plaintiff was aware of the boulder before buying Plaintiff’s Property;
2. the Plaintiff has the capacity to fund the works without financial hardship;
3. any notable contribution from the Spencers would cause them financial hardship;
4. the works would solely benefit the Plaintiff; and
5. most importantly the Plaintiff had not offered to make any contribution. The court found that would not be reasonable to expect the Defendants to abate the nuisance, at least in the absence of substantial contribution from the Plaintiff.

The Court ordered that Mr Frost was granted access to enter the land of the Defendants to remove the boulder and to pay the costs of the Defendant’s proceedings.

This case highlights the complexity with nuisance claims; and the somewhat unusual factors which are taken into account by the Court when determining them.