Fennell v Robson Excavations [1977] 2 NSWLR 486

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

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.