Fennell v Robson Excavations [1977] 2 NSWLR 486

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  • 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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