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Japanese Knotweed – a real ("actionable") nuisance!

What is Japanese Knotweed?

Japanese Knotweed (JKW) is not dissimilar to bamboo  – it grows very quickly and is very strong, with significant roots that can damage drains, walls and pathways.
It is common for mortgage lenders to decline to lend on a property that either has JKW, or has it growing within 7 metres of a physical building. That reference to 7 metres comes from Royal Institution of Chartered Surveyors (RICS).    The Wildlife & Countryside Act 1981 makes planting JKW a criminal offence and the Environmental Protection Act 1990 (as amended in regulations 1991) categorised JKW as “controlled waste” – meaning that removal is expensive.
What if my neighbour has JKW?
If JKW is present on your neighbour’s land and affects you or your property the law applies the “tort of nuisance”.
A 2017 case (Waistell –v- Network Rail Infrastructure Limited) dealt with two separate claims by Mr Waistell and Mr Williams against Network Rail.  The claims were for injunctions and damages in relation to the JKW growing on land owned by Network Rail. Their claims were that the roots had encroached over the boundary line and also that the presence of JKW, by itself, substantially interfered with their rights to use and enjoy their own land.  The Defendant argued that there is nothing that could be done about encroachment of the roots if no actual damage had been caused, and that the presence of JKW on the land did not interfere with the use and enjoyment of it, because it did not affect the day to day enjoyment, just market value.
Network Rail also said that it only had to take “such steps as reasonable in all the circumstances to avoid damage being caused” to their neighbour.
The Judge, Mr Recorder Grubb in the County Court, agreed that the spreading of the roots did not give rise to a claim unless there was physical damage. However he decided that there was an actionable nuisance because the presence of JKW did interfere with the amenity value of the Claimants’ properties. He said that because they could not be sold at full market value there had been an effect on the neighbours.  The Judge looked at reported cases that had involved a sex shop and a brothel and decided that nuisance could be caused by something being near, or proximate, and there was no requirement for the nuisance to actually cross over onto the Claimants’ land.  Additionally National Rail in this case was found to have performed below the standard required of it because it had not sufficiently treated the problem previously.  Damages were awarded.
Does this open the floodgates?
In a term that the media are referring to as “wheelbarrow chasers” (rather than “ambulance chasers!”) a home owner may now (if this case is not overturned) bring a claim against his neighbour simply because JKW is in close proximity.  From an academic lawyer’s point of view the idea of “proximate nuisance” is a new one: something that exists on your neighbour’s land which does not come on to yours now gives you the potential to bring a claim, and certainly you have more grounds than before to complain about it.
Potentially this can extend to mean that if your neighbour allows or does anything on their land or property, such as any activity, a plant like JKW or even painting their property in a garish colour or offensive manner that you can show reduces the value of your own property, then this may open the door to a claim under private nuisance.
It is perfectly possible that a group of neighbours that back on to land owned by one potential Defendant that has JKW on it could pool resources to bring a claim together, and as long as:

(i) each property is physically within 7 metres of JKW

(ii) each party alleges that physical damage has been caused together with…

(iii) the drop in value to the property under the recent case law they are likely to succeed in a claim.

The legal profession is looking on with interest to see if Network Rail does appeal the decision.  If they do not then, although it is technically not binding, it may provide ammunition to other parties to bring claims. If it does appeal and have the decision upheld then those floodgates will be held open by a higher Court.
Advice for land owners
Certainly large land owners would be advised to monitor JKW and devise a treatment plan, keeping complete records of treatment.  This raises the burden upon land owners to something like that borne by the Highways Agency in relation to road repairs
Advice for developers
Property developers purchasing land, particularly near large parcels of land owned by large land owners, should always consider commissioning a JKW specific search.
The Commercial teams at Wilson Browne Solicitors are on hand to offer specialist advice to land owners and developers, and Head of the Commercial Property Team Tom Warrender advises on significant land acquisitions for local and national clients. Head of Commercial Litigation John Gordon is on hand to advise on any related disputes or call 0800 088 6004.