Frost v Northern Beaches Council

The locality of Bayview sits at the southern end of Pittwater, part of the estuary of the great river known to the traditional custodians – the Garigal and Dharug people – as Dyarubbin, but named by the settlers the Hawkesbury. There, as in much of the lower Hawkesbury, massive cliffs separate the foreshore from the plateau above it. Those cliffs are formed in Hawkesbury Sandstone, a sedimentary rock of the Triassic age which typically comprises medium to coarse grained quartz sandstone. In places, the combined effects of water and salt over thousands of years have eroded the rock. Perched atop one such cliff is a boulder, about 9m by 7m by 3m, which is completely detached from the underlying bedrock and overhangs the clifftop by about 3.5m; the overhanging portion of it alone weighs about 55 tonnes. It has been there for hundreds, probably thousands, of years.

Sometime in or about the 1950s or early 1960s – the evidence is unclear – the settlers drew lines on a map of Bayview to create a subdivision. One such line ran, northwest to southeast, approximately along but slightly to the northeast of, the toe of the cliff. This created, on the land to the northeast of the line, a lot which is now folio 4/DP27133, and on which now stands No 4 Taminga Avenue (4 Taminga); and, on the elevated land to the southwest of the line, which includes the cliff and the boulder, the lots which are now folio 5/DP28379 to the northwest on which now stands No 21 Ilya Avenue (21 Ilya) and folio 16/DP28379 to the southeast, which is a Reserve which was vested in the predecessor of first defendant Northern Beaches Council (Reserve). 21 Ilya and the Reserve are separated by a line running approximately south from the line at the toe of the cliff, through the boulder, with about two-thirds of the boulder standing on 21 Ilya and one-third on the Reserve. All three properties are located in an area described as having the highest level of geotechnical risk under the Council’s current geotechnical risk policy. [1]

During the 1960s, structures were erected on 21 Ilya by its original owner, Jean Parsons. [2] The cliff and the boulder are not easily accessible from the property, and are beyond a wire mesh fence, glazed pool fence and retaining wall which define the occupational boundaries. [3]

In 1983, geotechnical investigations were undertaken, in preparation for the erection of a dwelling on 4 Taminga. Andrew Shirley & Associates reported that the site was “located in a very very sensitive geotechnical area”, that “the natural inherent stability of this property has been significantly affected with the undertaking of earthworks for the construction of the building platform and the site access track”, but that “The land is nevertheless considered suitable for building purposes provided that the building structure is designed to take into account possible movements in the surficial soils and appropriate measures implemented to improve the site stability”. This report does not refer to the cliff or the boulder. [4] Further geotechnical and engineering reports obtained in 1986 also focussed on the stability of 4 Taminga for building purposes, and not on the cliff or the boulder; however, a survey plan dated 1 March 1986 and stamped by J D Hodgson Consultants on 13 March 1986 identifies the “Overhanging Rock”. Development approval for a residence on 4 Taminga was granted in April 1986, following which a residence was constructed on it.

The plaintiff John Frost acquired 4 Taminga on 18 February 1999. At that time he was not unaware of the boulder which, like the sword of Damocles, hung over the rear of the property. Indeed, he consulted the geotechnical engineers, Hodgsons, who inspected it with him and advised him orally and in writing to the effect that he should not worry about it and that it would be fine. [5] Mr Frost nonetheless remained conscious of, and concerned about, the boulder; he gave this evidence: [6]

A little later, he added: [7]

There is no evidence that there has been any change in the boulder since 1999. In 2001, in preparation for the installation of a swimming pool and a deck at 4 Taminga, Mr Frost obtained a report from Jack Hodgson Consultants, geotechnical engineers, which stated that observation of the adjacent properties indicated that they did not present a risk of instability to the subject property. [8] However, the focus of the report was the risk of instability with regard to landslides on the site of the residence and proposed construction work, not the risk of rockfall from above. The Council granted consent for the swimming pool on 7 December 2001, and it was subsequently constructed. [9]

The second and third defendants Philippa and Benjamin Spencer acquired 21 Ilya on 13 March 2019. [10] Since then, they have undertaken no works on the property, other than of a purely cosmetic nature. [11] Until the events which led to these proceedings, they were unaware that the boulder overhung 4 Taminga and had never entered that part of the property in which the boulder is located which, as has been noted, is outside their fenced occupational boundaries. [12]

In January 2021, Mr Frost decided to place 4 Taminga on the market and retained a real estate agent, Ms McGrath, who advised him to obtain a geotechnical report. He retained Mr Crozier, who on 22 February 2021 reported (“the Crozier Report”) relevantly as follows: [13]

Mr Frost sent a copy of the Crozier Report to the Council, where it was reviewed by the Council’s “Bushland Team”. In late February 2021, a Council officer, Mr Chris Kraus, advised Mr Frost (via his real estate agent) that, in Council’s view, the situation was life-threatening, and that Mr Frost should vacate his property immediately. Acting, entirely reasonably, on this advice, Mr Frost and his partner on about 8 March 2021 left 4 Taminga and relocated to a property he owns in the Southern Highlands. Mr Frost has not lived at 4 Taminga since 8 March 2021, and has returned to visit it only occasionally and briefly.

On or about 17 February 2021, the Spencers permitted Ms McGrath, on behalf of Mr Frost, to inspect the site of the boulder at her request, notwithstanding that they were then unaware of the hazard. [14] Subsequently they declined to permit her further access, because they did not understand why a real estate agent would need a geotechnical survey of a neighbouring property for a sales campaign, were reluctant to act on a request which did not have the imprimatur of the Council, and in any event the boulder could be accessed through the Reserve without entering their property. [15]

Since receiving the Crozier Report in late February 2021, the Council has undertaken investigations to ascertain the risks posed by the boulder and the steps that might be taken to mitigate them. In March 2021, Council engaged Mr Crozier to undertake survey fieldwork on the boulder, and also engaged a surveyor, CMS Surveyors, to carry out a survey of the boulder and surrounding areas. In May 2021, Council sought consent from the Spencers for a geotechnical consultant to access 21 llya for the purpose of undertaking a geotechnical assessment of the boulder and surrounding areas. In June 2021, Council engaged another geotechnical engineer, Douglas Partners, to carry out a geotechnical assessment of the boulder and the cliff face, in order to advise on the hazards posed by the boulder to 4 Taminga and its occupants. These investigations identified additional hazards and risks – of slivers of rock falling from the overhang, a portion of ‘split rock’ falling off the cliff face, and loose blocks falling off the cliff face. These hazards pose less significant risks than the boulder, and it is not necessary to refer to them in detail.

In early July 2021, Douglas Partners provided Council with a draft report dated 5 July 2021 (‘the Douglas Partners Report”), which stated: [16]

By way of risk assessment, Douglas Partners assessed the likelihood of the boulder falling within 50 years as “possible”, the consequence as “major to catastrophic”, and the risk as “high to very high” – which, according to the Australian Geomechanics Society Guidelines (2007), is unacceptable. [17] They assessed the individual risk of loss of life for the person most at risk at a level which is six times the threshold for “not tolerable”. [18] The “Conclusions and Recommendations” section of the report relevantly stated:

On about 8 July 2021, Council forwarded a copy of the Douglas Partners Report to Mr Frost, under cover of a letter which relevantly stated:

Also on about 8 July 2021, Council forwarded a copy of the report to the Spencers, under cover of a letter which relevantly stated:

In August and September 2021, Council obtained additional geotechnical advice, which confirmed the findings of the Douglas Partners Report. In September 2021, Council engaged a contractor to carry out an additional 3D drone survey of the cliff face and the boulder, to assess better the risk posed by the boulder and other rock hazards and to provide best practice rectification.

In September and October 2021, Council engaged GHD to provide technical advice on possible stabilisation methods for the boulder and other rock hazards. GHD provided a report dated 21 October 2021 (“the GHD Report”) which summarised three possible remediation options for the boulder and other rock hazards, and provided copies to Mr Frost and the Spencers. Option 1 involved removal of the overhanging portion of the boulder, the stabilisation of the remaining (rear) portion of the of the boulder by rock bolting, and the removal or stabilisation of other small hazards on the cliff face. The residual risk after these works, the estimated cost of which was $240,000, was said to be “low”. Option 2 involved stabilisation by rock bolting of the rear portion, leaving the overhang unsupported (estimated cost $80,000; residual risk “moderate-high”); while Option 3 involved stabilisation of the rear portion by rock bolting, and wrapping the overhang in high-capacity mesh (estimated cost $110,000; residual risk “moderate”).

In about December 2021, Council engaged GHD to obtain indicative costs estimates from various contractors to carry out the remediation work proposed in the GHD Report. Rix Asset Management provided an estimate for removal of the overhanging portion of the boulder and stabilisation of other rockfall hazards, based on GHD’s design and construction sequence for Option 1, of $264,550; and alternatively, for installation of permanent rock bolts in the rear section of the boulder (Option 2) of $127,250. Pan Civil provided an estimate of $400,000 plus GST for bolting and meshing the boulder and removing the overhanging portion (Option 1); $120,000 plus GST for rock bolting only (Option 2); and $160,000 plus GST for rock bolting and meshing (Option 3). Retaining Specialists provided an estimate of $683,650 for rock bolting and removing the overhang (Option 1). On about 21 February 2022, Council provided Mr Frost’s real estate agent with the indicative costs estimates obtained by GHD.

The Spencers participated in a meeting with Council on 20 December 2021 (at the site) to arrange access for contractors to come on site for quotations. [19]

Arrangements were made for the parties were to attend a meeting at Council’s offices on 3 March 2022. However, before that meeting was held, solicitors acting for Mr Frost, Carneys Lawyers, sent a letter dated 1 March 2022 in which they threatened to commence proceedings against Council and the Spencers for injunctive relief and damages unless Council and the Spencers agreed “within 14 days of the letter ... to take action to permanently remove the imminent danger ...”. Council cancelled the planned meeting, because it required further time to consider the matters raised in that letter.

On 14 March 2022, Council’s legal counsel, Ms Jessica Simpson, sent an email to Mr Carney in which she stated that the 14-day deadline was “not realistic nor reasonable” given the complexity of the matter, and that Council would provide Mr Frost with an update on the progress of the matter by 28 April 2022. Mr Frost has not himself done anything towards achieving or contributing to resolution of the situation since he provided the Crozier Report to Council in late February 2021. However, on 21 March 2022, Mr Frost commenced this proceeding against Council and the Spencers, claiming an order requiring the defendants 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 an expedited hearing, which he obtained. At the outset of the hearing, on 23 May 2022, by notice of motion filed on 16 May 2022, leave was sought to amend the summons. The proposed amendments were in four categories. The first was an amendment to the claim for a mandatory injunction so as to include the hazards additional to the boulder; this amendment was permitted as it was plainly addressed by the evidence. The second was to omit the word “partial” from the claim for an injunction, so that the order sought would have required total as distinct from partial removal of the boulder; this was refused, as Mr Frost’s counsel confirmed that he sought no more than GHD Option 1, which involved only partial removal (of the overhang, with the remainder to be bolted). The third was to omit a claim for a declaration that the plaintiff be permitted to perform remedial works, and an order that the defendants reimburse the plaintiff for the costs of doing so; this was permitted, as its omission could not prejudice the defendants, but it was observed that this might have some implications for the plaintiff if he were unsuccessful in obtaining the primary relief he sought. The fourth was the addition of a claim for damages, including exemplary damages. An amendment to add a claim for an inquiry as to damages, including exemplary damages, was permitted, with the intent that the question of liability for damages including exemplary damages be determined in the present hearing, but the quantification of any such damages would be for subsequent inquiry.

Enough has been said to show that the boulder is a hazard, located on the defendants’ land, which poses a very substantial risk to the plaintiff’s land and people who may occupy it, and that Mr Frost has acted entirely reasonably in vacating his property when advised by the Council to do so.

There is no doubt that the Court may grant a mandatory injunction, including on a quia timet basis, commanding an adjoining landowner on whose land there is a hazard to the plaintiff’s property to remove the hazard, if he or she is liable but fails to do so. There was some dispute as to whether (assuming for present purposes that liability is otherwise established) the boulder constitutes a nuisance, or only the potentiality of a nuisance. If damage would only occur upon the boulder falling and inflicting physical damage to 4 Taminga, the injunctive relief sought by the plaintiff would be in the nature of quia timet relief. However, although actual damage is required to complete a cause of action in nuisance, even if no damage has yet been incurred a quia timet injunction may be granted to prevent apprehended damage to the neighbour’s property, if there is proof that damage is imminent or likely to occur in the near future and is very substantial or almost irreparable. [20] In the present case I am amply satisfied that the threat to 4 Taminga is sufficiently grave and imminent to warrant such relief, if the defendants are responsible for removal of the hazard that the boulder constitutes. Moreover, I am satisfied that actual damage has already been sustained, notwithstanding that the boulder has not yet fallen. It is established that there can be an actionable nuisance where there has not been any “emanation” – such as of odours, vapours, or noise – from the defendant’s land, but where the use of that land unreasonably interferes with the enjoyment of the plaintiff’s land by its psychological impact (or the mental anguish that it occasions), such as using it to “watch and beset” the plaintiff, [21] or in a manner that is perceived to be morally offensive – for example, Thompson-Schwab v Costaki [22] (prostitutes operating in the street) and Laws v Florinplace Ltd [23] (sex shop operating nearby). Although these have been described as “very special cases”, [24] Young J subsequently embraced the principle, founding on the principle that “watching and besetting” constituted a nuisance to hold that the installation of surveillance cameras on the defendant’s land to monitor the plaintiff’s property was likewise a nuisance. [25] I see no reason why these cases would not support a conclusion that it was a nuisance for the defendant to place on his or her land a weapon or other contraption aimed at (and thereby threatening) the plaintiff’s land. The effect of the boulder in the present case is that it poses a clear and present danger so threatening 4 Taminga and its occupants as to render it presently uninhabitable from the perspective of a reasonable landowner, albeit that it may not fall for decades or even centuries. To my mind, its impact on the enjoyment of 4 Taminga is considerably greater than that involved in the watching and besetting and brothel cases. Such “sterilisation” of a home or part thereof sounds in damages for nuisance. [26] If the defendants are responsible in law for this state of affairs, then actual damage has already been incurred.

However, the hazard constituted by the boulder is entirely the work of nature and has not been at all increased or modified by any occupant of the land on which it stands. Moreover, the risk was significantly contributed to by Mr Frost’s predecessors who erected a residence on 4 Taminga; Mr Frost was aware of the hazard – though not of the extent of the risk it posed – when he acquired 4 Taminga; and the works required to mitigate the risk are complex, difficult, dangerous and costly, with the evidence indicating a range from $264,000 to $683,000 for Option 1, which is Mr Frost’s and the Council’s preferred remediation option and which has the lowest residual risk. [27]

The Spencers’ resources are limited: their home at 21 Ilya is encumbered and they do not have other assets of significance, other than savings of about $100,000 which are earmarked for the costs of the proceedings; [28] and their combined salaries barely cover their outgoings, including mortgage repayments and the costs of the children’s education. Ms Spencer accepted that they could make a contribution “in the order of tens of thousands of dollars”. [29] Mr Spencer, confronted in the witness box in cross-examination with a proposal made by the Council for the first time that day that the Council would bear the cost of the works in the first instance and recover one-third from the Spencers over a period of 10 years, responded: [30]

So far as concerns Mr Frost, it suffices to record that he has substantial unencumbered assets, and that he accepted, in cross-examination, that he would be able to fund the whole cost of the most expensive remediation option, being the $683,500 quoted for Option 1 by Retaining Specialists, but he does not offer to bear any part of the burden. He gave this evidence: [31]

The crucial question is whether, in these circumstances, the legal rights and obligations of the parties extend to require the defendants to remove the hazard threatening the plaintiff’s property, and in particular to oblige the defendants to implement Option 1, at their own cost. Mr Frost’s contention is that the Spencers and the Council should remediate the situation by partial removal of the boulder and securing the remnant, entirely at their own cost. He submits that the law of nuisance obliges the defendants to abate the nuisance, and renders them liable for their omission to remove or secure the boulder so as to allow the plaintiff to use his land safely. It is submitted that although the cost of removing the boulder may be significant, in circumstances where the Council is a public body and is more than capable of immediately instructing qualified contractors, the extreme gravity of the danger requires nothing short of removal of the overhang and bolting the remainder, in accordance with Option 1. Damages are claimed for the losses associated with having had to vacate of the land, and exemplary damages on the basis that the defendants are said to have acted in contumelious disregard of the plaintiff’s rights in their dilatoriness in taking any remedial action. The Council’s position is that the package of works proposed by GHD as Option 1 can be carried out, but that it is not reasonable that only the Council be responsible for it, and that each other party should contribute one-third. The Spencers’ position is that they will provide access to 21 Ilya and otherwise facilitate any remediation works, but should not be required to contribute financially; [33] but that if they are required to make a financial contribution, it should be capped and payable over a period of time.

Had this case been litigated a century ago, the position would have been clear: no liability or obligation would have been incurred by the defendants, as before 1940 a landowner was not liable if rocks fell from his or her land as a result of weathering or other natural forces. [34] As described by Shaw LJ in Leakey v National Trust for Places of Historic Interest or Natural Beauty, [35] which is discussed below:

In Job Edwards Limited v Birmingham Navigations, [36] mine-owners were held not liable to extinguish a fire which had broken out, in refuse deposited without their knowledge or consent on their land, threatening adjoining land, at a cost of GBP1000. However, in a dissenting judgment which has been influential in the later development of the law, Scrutton LJ said that a landowner who fails to abate a nuisance within a reasonable time after it has or ought to have come to his or her knowledge, or who fails to take reasonable means to remove from the land an artificial danger which he or she knows will damage others if allowed to remain, may be responsible for the resultant damage. His Lordship gave as an example that of a landowner who could render a hazard caused by a fire just beginning from a trespasser’s match harmless by stamping on it. [37]

In Pontardawe Rural District Council v Moore Gwyn, [38] it was held held that the owner of land, on which there was an outcrop of rock overhanging a steep slope, was not liable for damage caused by reason of portions of that rock breaking away and falling, if the break was due to natural causes such as weathering, and the owner had used the land in an ordinary way without any mining and quarrying operations; nor was the landowner liable to take any works to maintain the rocks in a safe condition. The piece of rock which had fallen weighed five tons, and the cost of remediation works to render the rocks reasonably safe was estimated at between GBP300 and GPB450 (in 1929).

That was the position until 1940, when in Sedleigh-Denfield v O’Callaghan, [39] the House of Lords – endorsing the dissenting opinion of Scrutton LJ in Job Edwards – held that an occupier of land is liable on the basis of continuing a nuisance if, with knowledge or presumed knowledge of the existence of a hazard, he or she fails to take reasonable means to bring it to an end when there has been ample time to do so. And then in 1966, in an Australian appeal, the Privy Council in Goldman v Hargrave, [40] held that there is a general duty of care to remove or reduce a hazard – whether natural or artificial – so that it does not harm a neighbour, based upon knowledge of the hazard, the foreseeability of the consequences of not checking or removing it, and the ability to remove it; and that whether the occupier has fulfilled such a duty must be determined in the light of what it is reasonable to expect of the occupier in his or her individual circumstances. In that case, the owner and occupier of a grazing property was held liable to the owner of a neighbouring property for damage caused by the spread of a fire which originated in a tree fork struck by lightning which could easily have been extinguished by the application of some water. Reference was made to the judgment of the Supreme Court of New Zealand in Boatswain v Crawford, [41] in which, following Sedleigh-Denfield, the defendant was held liable for breach of duty resulting in the escape of a fire of unknown origin which could easily have been controlled in its initial stages. However, the Board also endorsed the disapproval expressed by Taylor J and Owen J of a dictum in another New Zealand decision, Landon v Rutherford, [42] to the effect that the occupier having admitted that he made no attempt to contain the fire, it was for him “to prove that it was impossible to do anything by taking reasonably prompt and efficient means to stop it spreading”; their Honours had observed that to establish liability in negligence, the plaintiff must always prove that the damage was caused by the breach of duty alleged.

From these cases, their Lordships discerned “the development … towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours”. But it was also recognised that the scope of this “measured duty” was circumscribed, with Lord Wilberforce, delivering the judgment of the Board, continuing (emphasis added): [43]

While the amounts involved – £300 and £1000 in the 1920s – would represent much greater sums today, nonetheless this is a powerful indication that the circumstance that the obligation would involve the incurring of substantial expenditure is a reason for not visiting liability on the occupier – even where they were mine-owners, as was the case in Job Edwards.

The next development of significance is Leakey, [44] in which the Court of Appeal of England and Wales considered a claim by a neighbour against an occupier of adjacent land in relation to earth and tree stumps falling from the adjacent property, and followed Goldman to hold the defendant liable. Megaw LJ said, describing circumstances similar to those of the present case: [45]

Turning to the scope of that duty, Megaw LJ proceeded to describe the duty the duty of a landowner to a neighbour as explained in Goldman as: [46]

His Lordship proceeded to identify the factors relevant to ascertaining the content of the duty in a particular case: [47]

Megaw LJ then referred to the passage in Goldman in which reference had been made to the small landholder with the downstream landholder with larger interests at stake and superior resources, and noted the competing suggestions that this might give rise to insuperable difficulties in the practical working of the duty, or provide a sensible and just limitation on the scope of the duty, “avoiding the danger of substantial injustice being caused, even in exceptional cases, by the existence of the duty”. His Lordship also noted the suggestion that the actual decisions in Job Edwards and Pontardawe RDC might be justified on the basis of the anticipated cost of remediation. [48] As to the difficulties, including unpredictability of the outcome of litigation, delay in resolving disputes, and the increased complexity of litigation if it was necessary, by reason of the need to ascertain and compare the respective resources of the parties, his Lordship reasoned that this did not contemplate a detailed examination of their respective financial resources, and except perhaps in a most unusual case, there would not be any question of discovery of the means of the plaintiff and the defendant, which would fall to be decided on a broad basis: [49]

Returning to the example of the “small owner”, his Lordship continued (emphasis added): [50]

That concluding paragraph recognises that where remediation would involve substantial and expensive works, that may be good reason for holding that the scope of the “measured duty” does not extend to require the occupier to undertake them – at all, or except upon an offer of an appropriate contribution from the neighbour. No issue arose in Leakey in that respect, as the defendants accepted that the scope of the works required did not exceed their capacity. [51]

In Holbeck-Hall Hotel Ltd v Scarborough Borough Council, [52] a case which involved not falling rocks, but the collapse due to natural causes of support from neighbouring land, the Court of Appeal of England and Wales applied Sedleigh-Denfield, Goldman and Leakey, to hold that the owner or occupier of land owed a measured duty of care to prevent danger to a neighbour’s land from lack of support where the owner or occupier knew, or was presumed to know, of the defect or condition on its land giving rise to the danger, even though it had not created it; [53] but that the scope of the duty depended not only upon the defendant’s knowledge of the hazard, the ease and expense of abatement and its ability to abate it, but also upon the extent to which the damage which in fact eventuated was foreseen. [54] Stuart-Smith LJ, responding to an argument that the ordinary rule (that where physical injury either to the person or property of the claimant is reasonably foreseeable, the defendant will be under a duty of care and will be liable for all damage of the type which was foreseeable, whether the actual extent of the damage is foreseeable or not) should apply, said that the “measured duty” was much more restricted (emphasis added):

His Lordship referred to the passage in Goldman in which Lord Wilberforce had said that in many cases, where the hazard could have been removed with little effort and no expenditure, no problem arises, but that a “small owner” should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more; then to the passage, set out above, in the judgment of Megaw LJ in Leakey, in which the relevant considerations were stated; and proceeded to explain that the scope of the duty was significantly influenced by the ease and expense of abatement:

In Yared v Glenhurst Gardens Pty Ltd, [55] Austin J declined to grant a mandatory quia timet injunction against the owner of a neighbouring property following the partial collapse of a high retaining wall. His Honour stated (emphasis added):

His Honour also considered that the fact that the proposed works would disproportionately benefit the plaintiff at the cost of the defendant was relevant:

Yared confirms that the landowner’s duty is not necessarily to abate the nuisance by removing the hazard, but to do only what is reasonable in the circumstances and no more, and that if it is not reasonable in the circumstances to require the landowner to undertake works to abate the nuisance, the Court will not by injunction require him or her to do so. Yared also illustrates that where the duty does not extend to require the defendant to abate the nuisance entirely at its own expense, then (self-evidently) the plaintiff is not entitled to a mandatory injunction requiring it to do so. Implicitly, relief requiring the defendant to abate the nuisance could be granted only upon the plaintiff undertaking to contribute its fair proportion.

In Mallone, the plaintiff (a strata body corporate) applied for a quia timet injunction requiring the defendant (a widow without significant assets) to carry out works to prevent rocks and debris falling from a cliff on the defendant’s land onto the plaintiff’s land, in circumstances where the defendant had not engaged in any activity on her land which caused rocks to fall or increased the risks of them doing so. After reviewing the authorities, Young CJ in Eq said that there was “no question” that the defendant owed a duty to take reasonable care to abate the nuisance caused by rocks falling from her land onto the plaintiff’s property, the fundamental question being the scope of that duty; [56] that the scope of the duty was limited to taking reasonable steps to abate the nuisance, having regard to such factors as the effort and the expense required to do so; [57] that the standard of reasonableness varies according to the individual circumstances of the defendant, the relative resources of the plaintiff, and objective factors such as the magnitude of the risk; and then quoting the passage from Goldman, set out above, which states that if “the small owner” does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty and should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstances should, have done more. [58] His Honour also noted the suggestion that such an approach was consistent with the outcomes in Job Edwards and Pontardawe RDC, in contrast to the simple steps which had been suggested to be within the scope of “reasonable steps” such as stamping out a fire (Scrutton LJ in Job Edwards), placing a grid on a drain (in Sedleigh-Denfield), or dousing a fire with water (Goldman). [59] His Honour endorsed Austin J’s statement in Yared of the scope of the duty, and that it did not necessarily require a “small owner” to perform extensive works:

On the facts, his Honour concluded that the whole of the burden could not be cast on the defendant widow, for reasons that included the absence of any active wrongdoing by the defendant, the disproportionate benefit to the plaintiff, and the hardship to the defendant: [60]

But rather than allowing the parties to remain in limbo until the next rock fall, his Honour concluded: [61]

As Stuart-Smith LJ pointed out in Holbeck Hotel, reservations were expressed in Leakey by Shaw LJ about the development of the law in this area:

There are echoes in Shaw LJ’s reservations of the reasons of Way CJ in Havelberg v Brown, [62] which were described by Lord Wilberforce in Goldman [63] as powerfully stating the argument that an occupier who remains passive should incur no liability:

Those reservations cannot and do not affect the position that the law which is to be applied in this Court is as stated in Goldman and elucidated in Leakey, which establish that a landowner in occupation when aware (or when he or she ought to be aware) of a hazardous condition arising naturally on the land which endangers neighbouring land and/or people on it, has a “measured duty of care” to take such steps as are reasonable in all the circumstances to prevent or minimise the known risk of injury or damage to the neighbour, and no more than that. However, the considerations which inform those reservations reinforce the rationale for the “restricted”, “measured duty of care”, and the reluctance to impose liability to undertake substantial effort and expense to remove a natural hazard, absent clear proof that more could and should have been done. The later cases repeatedly refer to the statement in Goldman to the effect that a “small owner” who does what he or she can and promptly calls on the neighbour to provide additional resources, may be held to have discharged the duty, and should not be liable unless it is clearly proved that he or she could, and reasonably in his or her individual circumstances should, have done more.

The “measured duty of care” is a restricted one, and in defining its scope in a particular case – that is, what are “reasonable steps” in all the circumstances – although the magnitude of the risk to the neighbour is relevant, the emphasis is on the ease and expense of abatement and the ability of the particular defendant to achieve it. In circumstances in which little effort and no expenditure is required of the defendant to abate the nuisance, “reasonable steps” will involve doing so: thus in Job Edwards and Sedleigh-Denfield, the example given was of a landowner who could render harmless the hazard of an incipient fire caused by a trespasser’s match simply by stamping on it; in Goldman, it was a fire which could have been extinguished by the application of some water. By way of contrast, in Goldman the earlier cases in which relief was refused are rationalised on the basis that in them, the expense required would have been considerable. This reflects that the law of nuisance is founded on the responsibility of one landowner for a state of affairs that exists on his or her land, and presumes the ability of the landowner to control that state of affairs. It is one thing to say that a landowner has the ability to control a fire that breaks out in its early stages by stamping or pouring water on it, or to prevent the backing up of water by installing a grid on a drain. It is quite another to say that an ordinary suburban landowner has the ability to control the presence on the land of an enormous boulder created eons ago by forces of nature. Thus, while a landowner who can remove a hazard naturally on his or her land with relative ease and without incurring substantial effort and expense is expected to do so, a landowner is not expected to have to undertake substantial and expensive works to do so, at least unless it is clearly proven that in all the circumstances he or she could and should have done more.

The cases contemplate the possibility that in an appropriate case the landowner’s duty may be to contribute a portion of the cost of remedial work. However, it is striking that while the cases identify the relevant factors, in no case so far as I have been able to ascertain has their application to produce an apportionment been essayed. As has been noted, no issue arose in Leakey in this respect, because the defendants there accepted that the scope of the works required did not exceed their capacity. [64] Notably, in neither Yared nor Mallone did the Court embark on endeavouring to quantify what the respective contributions of the parties ought to be. This tends to highlight the difficulties of an approach which is so case-sensitive to the relative circumstances of the parties. What is an appropriate portion? And how is it to be defined? In a simple case of two adjoining landowners, is it 50/50? But why should that be so, if prima facie the duty is that of one only of them? How is it affected by the circumstance that the work would be solely for the benefit of the other’s property? Why does that matter, where it is to avoid damage to that property? In any event, what impact should the respective financial resources of the parties have on that apportionment? It seems unsatisfactory that the legal rights of a landowner should depend idiosyncratically upon the wealth and resources of his or her neighbour. In any event, how is that to be applied in a case such as the present where there are three adjoining landowners, and the boulder is predominantly on the land of one of the two defendants, but the other defendant (here, the Council) has vastly superior resources? It seems quite wrong that the Council (on whose land sits a smaller portion of the boulder) should bear a greater share, or even all of the burden, simply because its resources are superior to those of the other parties.

It seems unsatisfactory, and contrary to principle, that responsibility should be according to a palm-tree like notion of “a fair sharing of expense”. A broad-based discretionary apportionment of this kind is an exercise unfamiliar to the common law and to equity, though it is sometimes conferred by statute, such as s 79 of the Family Law Act 1975 (Cth) (which provides for a discretionary adjustment of property interests on breakdown of a marriage), and s 5(2) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) (which provides for discretionary apportionment of contribution between concurrent tortfeasors). But it is not a remedy generally known to the law.

In Yared, Austin J, upon concluding that the defendant was not obliged to perform the works to abate the nuisance alone, simply refused to grant the injunction sought requiring it to do so. [65] Similarly in Mallone, the injunctive relief sought was refused, and although Young CJ in Eq stated that it was appropriate that the defendant contribute some funds towards alleviating the problem, but should not be required to contribute the whole of the costs, [66] what proportion of the costs the defendant should contribute and how it was to be calculated was left entirely unexplained. This appears to have been informed by the well-established principle, stated by his Honour, that the court does not undertake a supervisory role in relation to the performance of the defendant’s duty and the orders made. [67] The Court’s role is to determine the binary question of adjudicating whether or not the defendant has failed to take reasonable steps in all the circumstances, and while that may require broadly resolving what are reasonable steps, it does not necessarily involve determining precisely what proportion of the cost of the works the defendant should bear.

Thus, the primary remedy for nuisance being damages, upon a claim for damages for nuisance (for example, if the boulder were to fall and destroy the house of 4 Taminga), the question would not be what was a just contribution, but whether the defendants had failed to take reasonable steps to abate the nuisance. If the law did not oblige them to do so alone, then they would not have failed to take reasonable steps, unless the plaintiff had made a sufficient offer of contribution that it could be said that, in light of it, the defendants had failed to take reasonable steps to abate the nuisance. Similarly, where an injunction is sought, the focus is on whether the plaintiff is entitled to the specific relief it seeks, and if the relief sought exceeds that to which the plaintiff is legally entitled because the defendant is not obliged alone to abate the nuisance, it is declined, as it was in Yared and Mallone; the Court does not then proceed to work out what contributions of the parties should be required. If the plaintiff made an offer to contribute so that the burden cast on the defendant did not exceed its legal obligation, then relief would be granted. But the court would be engaged in the binary exercise of deciding whether or not, having regard to the plaintiff’s offer to contribute, the defendant should be ordered to abate the nuisance, and not in formulating what an appropriate offer of contribution would be. Another way of looking at this is that to obtain equitable relief, the plaintiff must offer to do equity by making an appropriate contribution. If, presented with such an offer, the defendant still refused to take any action, an injunction might be granted, on the basis that it would then be clearly proved that the defendant could, and reasonably in his or her individual circumstances should, have done more. In other words, it is not for the Court to formulate what would be a fair apportionment; the question for the Court is whether it can be said that, in light of such if any offer of contribution as has been made by the plaintiff, the defendant has in all the circumstances failed to take reasonable steps to abate the nuisance. This is in substance what happened in Yared and Mallone, where “reasonable steps” on the part of the defendant did not involve abating the nuisance at its own cost, but the only relief sought was that it do so, and there was no offer of contribution.

In the present case, it must be accepted that the defendants, as landowners and occupiers who have become aware of a hazardous condition on their land which imperils the neighbouring land of the plaintiff, have a duty to take such steps as are reasonable in all the circumstances to prevent or minimise the risk of injury or damage to 4 Taminga. The risk to Mr Frost’s property is no doubt very substantial. The question is whether reasonable steps in all the circumstances involve abating the nuisance by removal of the overhang and bolting of the remainder of the boulder. This is not a case of steps which a defendant can easily take with little effort and no expense; to the contrary the steps that would be required to abate the nuisance are difficult, dangerous and very expensive. In those circumstances, the defendants are not liable unless it be “clearly proved” that they could, and reasonably in their individual circumstances should, have done more than they have done.

It is manifest that for the defendants to do any more than they have done would involve substantial effort and expenditure, well beyond the reasonable means of an ordinary suburban land-owner, which would occasion significant hardship to the Spencers. I do not overlook the gravity of the risk posed by the boulder, not only to property but also to life. However, it is for the plaintiff to “clearly prove” that the defendants can and in their circumstances ought to have done more than they have. In all the circumstances – including the nature and origin of the hazard, and notwithstanding the gravity of the threat it poses, 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 – I am not satisfied that reasonable steps on the part of the defendants require that they abate the nuisance by removing and or bolting the boulder. While it is true that by comparison with the Spencers – and for that matter with Mr Frost – the Council has substantial resources, and it may be that more could reasonably be expected of the Council than of the Spencers, what are reasonable steps depends on all of the circumstances, and although abating the nuisance might not impose on the Council the same financial hardship as it would on the Spencers, the other circumstances described above apply equally in the case of the Council. In particular, the fact that the plaintiff has made no offer to contribute means that there has been no attempt to bring the relief sought within the bounds of what might be “reasonable steps”, and therefore within the scope of the Council’s legal duty. And as has been mentioned, it is difficult to see why the Council should bear any greater responsibility than the Spencers, when the boulder sits predominantly on the Spencers’ land.

Given that that the defendants have not contributed in any way to the state of affairs that imperils the plaintiff’s property, which is exclusively the result of the forces of nature; that Mr Frost’s predecessors in title significantly contributed to the problem by building beneath the boulder, and that Mr Frost was aware of its existence when he acquired the property; [68] that Mr Frost has the capacity to fund the works he wishes to have performed without hardship, while any significant contribution to the works would occasion hardship to the Spencers; that the works will solely benefit Mr Frost, and that he does not offer to make any contribution – it is not reasonable to expect the defendants to abate the nuisance, at least in the absence of a substantial contribution from the plaintiff. It may well be that in these circumstances the defendants’ responsibility is no more than to permit the plaintiff to enter onto their land and undertake reasonable works for abatement of the nuisance. At the very least, even if reasonable steps involve removal and/or securing of the boulder, this is not a case in which the defendants should be required to bear that burden alone. In those circumstances, where reasonable steps do not require the defendants to bear the whole burden, and in the absence of any offer of contribution, no breach of duty is established. The defendants’ duty is, at least at present, discharged by permitting the plaintiff to enter upon their lands and perform reasonable works to abate the nuisance.

It follows that the defendants will not be ordered to abate the nuisance, at least unless the plaintiff has made a reasonable offer of contribution. As he has not made any offer of contribution, it is unnecessary to consider whether 33%, 50% or more would suffice. The claim for a mandatory injunction therefore fails.

Further, as it has not been shown that either the Spencers or the Council have failed to take reasonable steps, in all the circumstances, to abate the nuisance, no breach of duty is established, and there is no occasion for an inquiry as to damages. Although that is sufficient to dispose of the claim for an inquiry, I would add that I entirely reject the suggestion that any of the defendants has acted with contumelious disregard for the rights of the plaintiff such as to support a claim for exemplary damages, even if exemplary damages are available for nuisance in this context. [69]

In order to provide clarity of the rights and liabilities of the parties, there should be a declaration 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, but the summons must otherwise be dismissed, with costs.