In Frost v Northern Beaches Council [2022] NSWSC 1214, the NSW Supreme Court considered a claim in nuisance with respect to a boulder which overhung a 20-metre cliff and constituted a significant fall hazard risk onto the plaintiff’s property.
Mr Frost (the plaintiff) purchased his property in Bayview in 1999, which was located at the base of a cliff. The boulder sat at the top of the cliff and was on land owned by both the Northern Beaches Council (the first defendant) and Mr and Mrs Spencer (the second defendant). Mr Frost forwarded to the Council a geotechnical engineer’s report, which found that the boulder was an unacceptable fall hazard risk that could fall at any time, with catastrophic consequences of damage to the plaintiff’s property. The proposal by the Council to remove the overhanging portion of the boulder and stabilise the remaining rear portion had an estimated cost of $680,000. Therefore, Mr Frost commenced proceedings against the Council and the Spencers, claiming that the defendants were required to abate the nuisance and were liable to carry out all necessary works to remove the boulder and other hazards.
The fundamental issue was the scope of the defendant’s duty of care and whether reasonable steps required abating the nuisance by removal of the boulder. The Court considered the nature and origin of the hazard, the cost of removing it, the relative resources of both parties, and the plaintiff’s knowledge of the hazard when purchasing the land, contrasted with the absence of knowledge of the hazard by the defendants and the absence of any offer to contribute by the plaintiff.
While the magnitude of the risk to the plaintiff was significant, the Court found they should have regard to the ease and expense of abatement and the ability of the defendant to achieve it. The Court found that the plaintiff had capacity to fund the works without financial hardship, while the Spencers did not. As such, the Court was not satisfied that it would be reasonable for the defendants to incur a $680,000 cost to abate the nuisance. The Court granted Mr Frost access to enter the defendant’s land to remove the boulder and to pay for the costs of the defendant’s proceedings. This case highlights how the standard of reasonableness depends on the individual circumstances of each case.