Author: Leanne Meredith
The damage that Japanese knotweed can cause has been highly publicised over recent years. Growing by up to 10cm a day, it quickly covers land above ground, and has the potential to spread widely underground. It is said to spread beneath the foundations of properties and compromise their structure; it can cause cracks, undermine garden walls with shallow foundations, and even push over insubstantial outbuildings. While some may argue that the damage it is alleged to cause is something of an urban myth, professional guidance nonetheless does suggest that all ground within 7m of Japanese knotweed should be considered blighted. For that reason, lenders will often refuse to lend against a property where Japanese knotweed is found within such close proximity. Proper remediation to eradicate the knotweed can take years, and is extremely costly.
While it is an offence to cause Japanese knotweed to grow in the wild, legal remedies available to a neighbour who finds knotweed growing near their property have been very limited. The recent County Court decision of Williams and Waistell v Network Rail could however signal a widening of the remedies available to landowners faced with the nightmare neighbour Japanese knotweed.
Mr Williams and Mr Waistell both owned homes adjacent to Network Rail land. Japanese knotweed was growing on an embankment on Network Rail’s land and was encroaching on the houses owned by Mr Williams and Mr Waistell. Network Rail was slow in taking action after finding out about the Japanese knotweed, and the action which it eventually took was not effective.
Importantly, Mr Williams and Mr Waistell did not claim that there was actual physical damage to their houses. They said, however, that Network Rail’s failure to eradicate the Japanese knotweed nonetheless prevented them from selling their houses, and claimed damages in nuisance on the basis that their right to quiet enjoyment of their property had been unlawfully interfered with. They claimed that they had lost some of the amenity value of their houses because the presence and stigma of the Japanese knotweed in such close proximity made them very difficult to sell.
The court decided that, by not taking proper steps to eradicate the Japanese knotweed, Network Rail had failed in its duties as a reasonable landowner. The spread of Japanese knotweed was not something which an adjacent landowner should simply have to “put up with”. It did not matter that there had not been any physical damage to the houses: the amenity value of a house and the right to use and enjoy land could include an ability to dispose of them at proper value.
While this decision is obviously beneficial to those who find themselves with neighbours with Japanese knotweed on adjacent land, it will be a cause for concern for those who identify Japanese knotweed on their land. They will not only be faced with hefty remediation costs, but also risk a nuisance claim for damages if they fail to take proper action, even if the invasive weed is not yet causing any actual physical damage.
Landowners who find Japanese knotweed on their land would be advised to take action as a matter of urgency to try to eradicate it. You should behave diligently. However, rather than attempting to remove the Japanese knotweed yourself, it is advisable to instruct an expert to do so.
If you find yourself on the receiving end of a threatened nuisance claim because of Japanese knotweed on your property, or are concerned by the harm it may cause on adjacent land, then our specialist property litigation team would be happy to advise further.
Leanne Meredith, Associate, Fladgate LLP (firstname.lastname@example.org)