Frost v Northern Beaches Council [2022] NSWSC 1214

Supreme Court New South Wales

Medium Neutral Citation: Frost v Northern Beaches Council [2022] NSWSC 1214 Hearing dates: 23-25 May 2022 Date of orders: 13 September 2022 Decision date: 13 September 2022 Jurisdiction: Equity Before: Brereton JA Decision: 1. Declare that the plaintiff is entitled, upon reasonable notice and at reasonable times, to enter upon the land of the defendants, with workers, machinery, and equipment, for the purpose of removing in whole or in part or securing the boulder. 2. Otherwise dismiss the summons, with costs. Catchwords: TORTS – Private nuisance – Interference with use and enjoyment of land – Where very large boulder sits naturally atop cliff, two-thirds on private residential land and one-third on council land, but large portion of boulder overhangs the cliff face, suspended above neighbouring residence below – Where geotechnical report advises boulder will fall at an entirely unpredictable point in time, with catastrophic consequences of damage to property and life in residence below – Where owner of land below boulder advised by local council to vacate residence due to risk – Where owner of land below seeks mandatory injunction that owners of land on which boulder sits abate the nuisance by removing and/or securing boulder, as well as damages for losses associated with vacating residence TORTS – Private nuisance – Interference with use and enjoyment of land – Basis for liability – Nonfeasance – Whether boulder constitutes nuisance or only potentiality of nuisance – Despite not having fallen, boulder poses clear and present danger so threatening neighbouring property and residents as to render it uninhabitable from perspective of reasonable land-owner – Sufficient impact upon enjoyment of plaintiff's property to found claim in damages if defendants are responsible at law for the nuisance TORTS – Private nuisance – Scope of duty – Landowner in occupation who is aware (or ought to be) of hazardous condition arising naturally on their land which endangers neighbouring land or people on it has "measured duty of care" to take such steps as are reasonable in all the circumstances to prevent or minimise risk of injury or damage to neighbour, and no more than that – Magnitude of risk relevant but emphasis on ease and expense of abating risk, and ability of particular defendant to do so – Holding that in all of the circumstances, the scope of the defendants' duty does not extend to require them to undertake works to abate the nuisance – No breach of duty and no liability for damages – Declaration that plaintiff is entitled to access defendants' land to undertake reasonable works for abatement – Summons otherwise dismissed EQUITY – Equitable remedies – Injunctions – Mandatory injunctions – Quia timet injunctions – Injunctive relief sought exceeds that to which plaintiff is legally entitled because in all of circumstances, scope of defendants' duty does not oblige them to abate the nuisance alone – Summons dismissed Legislation Cited: Family Law Act 1975 (Cth), s 79 Law Reform (Miscellaneous Provision) Act 1946 (NSW), s 5(2) Cases Cited: Alma v Nakir [1966] 2 NSWR 396 Asman v MacLurcan (1985) 3 BPR 9592 Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 Boatswain v Crawford [1943] NZLR 109 Dimitrios Michos v Botany [2012] NSWSC 625 Fletcher v Bealey (1885) 28 Ch D 688 Goldman v Hargrave (1966) 115 CLR 458; [1966] UKPC 12 Guppys (Bridport) Ltd v Brookling (1983) 14 HLR 1 Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56 Havelberg v Brown [1905] SALR 1 Hunter v Canary Wharf Ltd [1997] AC 655 Holbeck-Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 (CA) Hooper v Rogers [1975] Ch 43 J Lyons & Sons v Wilkins [1899] 1 Ch 255; All ER Rep Ext 1556 Job Edwards Limited v Birmingham Navigations [1924] 1 KB 341 Landon v Rutherford [1951] NZLR 975 Laws v Florinplace Ltd [1981] 1 All ER 659 Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 Mendez v Palazzi (1976) 12 O.R. (2d) 270; 68 DLR (3d) 582 Oldham v Lawson (No 1) [1976] VR 654 Owners Strata Corporation 4085 v Mallone [2006] NSWSC 1381 Pontardawe Rural District Council v Moore Gwyn [1929] Ch 656 Raciti v Hughes (1995) 7 BPR 14,837 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Sparke v Osborne (1908) 7 CLR 51 Sturges v Bridgman (1879) 11 Ch D 852 Thompson-Schwab v Costaki [1956] 1 All ER 652 Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11 Category: Principal judgment Parties: John Frost (Plaintiff) Northern Beaches Council (First Defendant) Philippa Spencer (Second Defendant) Benjamin Spencer (Third Defendant) Representation: Counsel: