- A developer employed an excavator to remove soil from the land but developer went into liquidation so dirt was left
- Some time later a heavy rain storm caused damage to neighbour’s property
- Neighbour sued in nuisance
- Excavator said they were not in possession
- Could the excavator be held in nuisance, even though it was not their land?
- Yes, because they were the ones who created the land
- Even though normally the landholder is liable, whoever creates the nuisance has responsibility for it, whether or not the occupy the land
- Even if occupation was a prerequisite, they were occupying at the time
- Not being able to fix it was irrelevant; it was because they created it (shouldn’t have don eit in the first place)
- It did not matter that they could not access the land when the damage occurred
- A land owner could also incur liability, but this did not exclude the nuisance creator.
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