The obligations of a land owner to control the presence of Japanese Knotweed (JKW) on their land were recently highlighted in a dispute between a land owner (Network Rail) and the owners of private properties on neighbouring land (Waistel v Network Rail Infrastructure and Williams v Network Rail Infrastructure Ltd ) .
The cases extended the liability of land owners, who can now be liable for extensive damages if JKW is found to be growing within the vicinity of a built structure, even if no physical damage is caused.
JKW is a fast-growing plant which spreads by its roots and can cause extensive damage to biodiversity and property. It is an offence to allow the growth of JKW in the wild, although growing the plant on your own land is not in itself prohibited.
Guidance issued by RICS in 2012 first highlighted the risk of damage to property within 7 metres of JKW, due to the plant’s sprawling roots. It is difficult to both treat and control the spread of JKW and it has been reported that a national programme to eradicate the plant would cost over £1 billion.
Mr Waistel and Mr Williams owned neighbouring properties abutted by an embankment and access path owned by Network Rail. These areas were overrun with JKW and the roots of the plant had spread to the neighbours’ land and foundations of their properties.
The neighbours claimed that the roots of the plant had encroached on their land and they also alleged a substantial interference with their use and enjoyment of their land as a result. Both claimants sought damages for diminution in value of their properties, claiming that they were unable to sell their properties at market value as prospective purchasers were unable to secure mortgages.
The claims for encroachment failed as the Court found that there had to be physical damage to the property, and whilst the JKW had spread to the foundations, there was no evidence of any damage. However, a lack of physical damage did not prevent the Court in finding an actionable nuisance and the claimants were awarded damages for the diminution in value of their properties.
The cases show the extensive damages that can be awarded to a successful claimant, which could include the cost of remedial works to a property. It is clear that such costs could quickly escalate due to the nature of JKW.
What is perhaps most worrying for land owners however, is that they could be liable for such damages in nuisance if they allow JKW to stray into the vicinity of other people’s property without it actually causing physical damage. There is a clear duty of care between neighbouring land owners and a huge burden on a property owner to properly manage the growth of JKW to protect their position.
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