Judge Paul Brereton compared the rock to a “sword of Damocles” hanging over the property. He noted that the house was estimated at between $2.7 and $3 million in its current condition.
“I’m a little surprised,” Judge Brereton said. “I don’t see anyone buying it other than as a place, maybe, to put a tent, in a corner off the rock road.”
David Robertson, appearing for council, said the rock “has been in its present location for hundreds of years, if not thousands of years” and that Frost lived in the house for around 22 years “without the rock does not interfere in any way with his use and enjoyment of the property”.
Robertson cited expert evidence that a rock fall would be a “1,000-year event” but said no one could say when that risk would eventually occur.
An engineering report concluded that the boulder would fall at some point, but it was not possible to set a time frame. The fall would have “major” consequences, according to the report, “likely demolishing the existing house” and affecting properties downstream.
The report said it was “certain” the boulder would hit Frost’s house when it fell, and if the house was occupied at the time, death was also “certain”.
Robertson said the remediation work would be “complex, difficult, dangerous and expensive” and could cost more than the council’s initial estimates. He said Frost was made aware of the existence of the rock before moving in and decided to occupy the house anyway.
“Nothing in the physical state or nature of the rock has changed during this time,” Robertson said. “What has actually changed is the applicant’s risk appetite.”
Lawyer Jamie Stephenson, representing Frost’s neighbors Philippa and Benjamin Spencer, said it would be “unfair and ruinous” if his clients had to pay to have the rock removed or repaired.
He said his clients could lose their $3.9 million home, which they bought in 2018, “and face potential bankruptcy” if ordered to pay for the work. The court heard the couple had a relatively modest income and were already paying for expenses, including their mortgage and a child’s schooling.
Stephenson said that if the court ordered his clients to make a contribution, it should be “extremely modest, capped and over a period of time”.
He noted that Frost and the council had “substantial means” and Frost “voluntarily placed himself in this position”, having been aware of the rock at the time he purchased the house.
Judge Brereton will deliver his judgment at a later date.
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