Author: Gillian Birkby
Gillian Birkby, Consultant, Fladgate LLP (firstname.lastname@example.org)
Construction sites can undoubtedly be a nuisance to their neighbours and over the years the right to object to (and receive compensation for) certain types of nuisance has become enshrined in the law. Even if planning permission is granted for construction works which will inevitably be noisy, for instance, that is no excuse if the noise causes a nuisance to neighbours.
As techniques have been developed for dealing with issues such as noise, dust and fumes, more is expected from contractors in controlling them. In addition, nuisance can sometimes be managed by restricted hours of working, or notifying the neighbours in advance if exceptionally noisy works are to be carried out etc. The voluntary Considerate Constructors Scheme is also a reflection of this greater awareness.
The nuisance that a court will consider can be wider than this, though. In a recent case two house owners brought legal proceedings against Network Rail because of the spread of Japanese knotweed from Network Rail’s embankment to the point where the stems of the knotweed occasionally tapped on the windows of one of the houses.
Many years ago, Japanese knotweed seemed to be an effective, low maintenance and environmentally friendly way of stabilising railway embankments. The plant itself is attractive to look at and has quite pretty flowers. Unfortunately, it can also become all-pervasive. The roots can apparently extend up to 7 metres horizontally and 3 metres vertically, causing significant structural damage, so to have a knotweed stem tapping on your window is obviously a cause for concern. Part of the problem is that it is such a pervasive plant and, as someone has said, “eradication requires steely determination”.
It is now illegal of course to introduce Japanese knotweed into an area and disposal of its stems and root-infested soil is treated as controlled waste. The properties concerned in this recent case, though, were in the Maesteg area of Wales, where apparently there is a great deal of knotweed. One of Network Rail’s arguments was that because of this, the neighbouring house owners simply had to put up with it, and were not entitled to claim against them because of the effect on the value of their property or the fact that they needed to spend money on treating the knotweed.
Network Rail lost in the County Court and took the case up to the Court of Appeal, which also found in favour of the house owners. They said that actual physical damage was not necessary for an action in nuisance. The relevant criterion was the objective effect on the amenity value of the land. Network Rail knew that the Japanese knotweed was present on its land and, since the publication of a code of practice by the Environment Agency in 2012, was also deemed to know that its presence would risk damaging the neighbouring land. Network Rail had failed to act with reasonable prudence to remove the hazard, e.g. by spraying on a regular basis. The evidence was that it had treated the knotweed in October 2013, not at all in 2014, and then again in 2015 and 2016. In the County Court the Recorder held that on no reasonable basis could those treatments be considered adequate or reasonable. The Court of Appeal held that Network Rail, by allowing its Japanese knotweed to continue in existence, had unduly interfered with the house owners “in the comfortable and convenient enjoyment of their land”. The presence of the knotweed, particularly its roots as it spread underground, was an immediate burden on the owners of the neighbouring land because it was expensive to deal with. By allowing the knotweed to remain on the Network Rail land, there was an interference with the amenity value of the neighbouring land.
So, what do we learn from this case? First, evidence of physical damage is not necessary to bring a case in nuisance. Secondly, ignoring Japanese knotweed, however difficult it is to treat effectively, and however much of it there may be on other surrounding sites, is not an option. There must be an effective eradication plan, and it must be implemented, in order to avoid an irate or desperate neighbour bringing a case in nuisance.