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Hill v Higgins [2012] NSWSC 270. Harrison J.

“Mr and Mrs Hill submitted that if Mr and Mrs Higgins permitted or caused naturally occurring material to fall onto their land, they are liable in trespass and probably also in nuisanceWatson v Cowen [1959] Tas SR 194,” Harrison J said [18].

“Similarly, if they failed to remove an object from the Hills’ land after its wrongful presence was brought to their attention and after any licence was thereby withdrawn, they are liable in nuisance as a result of that failure to actBreak Fast Investments PL v PCH Melbourne Ltd [2007] VSCA 311; (2007) 20 VR 311.

On nuisance, Harrison J [49], “To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable.

“As stated as long ago as Walter v Selfe (1851) 64 ER 849 at 852:

  'And both on principle and authority the important point next for decision may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?'

Harrison J cited similarly Don Brass Foundry PL v Stead (1948) 48 SR (NSW) 482 at 486-487, Haddon v Lynch [1911] VLR 230 at 231 and Ruthning v Ferguson [1930] St R Qd 325 at 326.


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