Landowners are being warned that they not only face potential claims for damage caused to property as a result of Japanese knotweed, but failing to remove or prevent the spreading of the weed could also lead to a claim in nuisance.
The warning follows Waistell v Network Rail Infrastructure Limited , in which the court found in favour of the Claimants and damages were awarded based on the reduction in the market value of their properties.
Network Rail unsuccessfully appealed (Network Rail Infrastructure Limited (Appellant) v Stephen Williams and Robin Waistell (Respondent) )), and the Court again awarded damages to the Claimants although this time on the basis of the loss of their ability to use or enjoy their properties.
The Court of Appeal held that the purpose of a claim in nuisance is not to protect the value of property as an investment or financial issue, but is there to protect the intangible value of land, namely owners’ use and enjoyment of their property.
Aimee Davies of Clarke Willmott LLP is now advising any landowner that as soon as they become aware of the presence of the invasive weed on their land, they deal with it immediately, as significant damage is not necessarily required to bring an action in nuisance – the mere presence of the plant may be enough.
She said: “It is well-known that the presence of Japanese Knotweed carries with it a statutory liability on the part of the landowner to prevent its spread. However recent caselaw has now also established that Knotweed is a nuisance.
“The statutory burden on landowners to prevent the spread of Knotweed, and the possible criminal sanctions for failure to do so, further highlights the need for persons affected to seek specialist help.
“But getting rid of Japanese Knotweed is no easy feat. Under the Environmental Protection Act 1990, Japanese Knotweed is classified as a ‘controlled waste’ and means only licenced organisations can remove and dispose of it.
“And if specialist action is not taken upon its discovery, the relevant Environment Authority is able to issue Species Control Orders against landowners who fail to manage the non-native weed.
“Further, “causing” Japanese knotweed to grow is a criminal offence under the Wildlife and Countryside Act 1981. If you discover Japanese Knotweed on your property, specialist advice should be sought immediately.”