Cathryn Pernstich looks at the continuing issues that surround land which has Japanese knotweed growing on it and those issues affecting land adjoining such land.
The Case and It’s Result
A non-native species which was brought into this country in the 19th century for its striking flowers and foliage has long since turned into an intrusive and problematic plant. The rhizomes can extend up to 7m in length and it has the ability to grow up to 10cm per day. The resulting impact of the once “pretty” plant can cause havoc for those owning land with Japanese Knotweed growing on it and those that own abutting land if it is left unchecked.
Commented on by Matthew Hearsum, Partner in our Property Dispute Resolution Team when the matter first went to Court last year, the case has now been ruled on at appeal. The appeal ruling given in July of this year in the case of Network Rail Infrastructure Limited -v- Williams and other [2018] reinforces that it is not an option to leave Japanese knotweed growing without check or to turn a blind eye to its existence on your land.
Williams and Waistell each owned land abutting a railway embankment and an access path. That embankment and access path, as many do throughout the country, had Japanese Knotweed growing on it. It had been growing for some 50 years and had persistently spread onto their land. Williams and Waistell also claimed that the Japanese Knotweed had got into the foundations of their properties and was preventing the sale of their properties at proper market value. William and Waistell claimed an action in private nuisance against Network Rail.
Network Rail argued on appeal that there was no causal link between the diminution in value of the land and the existence of Japanese knotweed on the embankment. Network Rail also argued that it was wrong to say that economic loss should be recoverable through an action for private nuisance.
The Court found that Network Rail’s knowledge of the existence of Japanese knotweed and its failure to reasonably prevent interference with William’s and Waistell’s enjoyment of their land was sufficient on general principals to create a nuisance. This nuisance was one upon which an affected landowner can take action. Whilst a claim for diminishment in the market value of a property (pure economic loss) would not be allowed, a claim for loss of amenity of that land as a result of the presence of Japanese Knotweed would be allowed.
The Impact of the Court’s Findings
The implication of this decision could be said to have far reaching effects. If you know (or suspect) you have Japanese Knotweed on your land, then it could be reasonable to infer you know (or suspect) it could adversely impact upon the use/amenity of adjoining land.
If there is a suspicion that Japanese Knotweed might be lurking on your land, might it not be in your interests to undertake a survey to determine that and then take action to remove it? Similarly, if you know that you have Japanese Knotweed on your land, why not establish that and remove it? Did you know that if it is on your land and spreads and you do nothing, then could you be made subject to an ASBO and be fined?
Removal is by no means cheap or easy – the plants and their rhizomes need to be dug out completely, which could mean extensive excavations. Anything dug out has to then be disposed of in a specialised manner, at licensed premises and by licensed contractors. Alternatively, chemicals can be put on the plants, but those used must be licensed and it can take up to 3 years for this to be effective.
The findings of the Court and the possible financial implications are perhaps a lesson to all landowners (not just Network Rail). Japanese Knotweed can grow anywhere and spread anywhere. Taking immediate action could be more cost effective and neighbourly in the long run. It may also make the sale of your own land more attractive if it has been removed.
If you have any questions or would like to discuss any of the issues raised in this blog, please feel free to contact Cathryn Pernstich, Senior Associate Solicitor within our commercial property team. Cathryn is contactable on the telephone on 01737 854521 or by email at [email protected].