Landowners/developers should be aware and consider taking reasonable steps to prevent or minimise encroachment of Japanese knotweed onto adjoining land following a recent case in the County Court and Court of Appeal.
In a recent case (Network Rail –v- Williams and Waistell) the Court of Appeal made it clear that:-
- encroachment of Japanese knotweed (the plant, or its roots or rhizomes) onto adjoining landowners’ land constituted “an unreasonable interference” of the landowners’ enjoyment; and
- a final mandatory injunction should be available to the claimant as Japanese knotweed “affects the owner’s liability to fully use and enjoy the land. They are a classic example of an interference with the amenity value of the land”.
In this case, the homeowners were entitled to damages because the very presence of the weed (or even just its roots) had affected their ability to enjoy their properties and the presence of the weed would make it more difficult and a lot more expense to develop the land should they wish to do so. It is interesting to note that no physical damage had occurred to the homeowners’ properties nor had there been any change in the soil structure.
Japanese knotweed was introduced because of its powerful root system and was used to shore up railway embankments. Unfortunately, the roots are so powerful they can break through concrete and cause a lot of damage to adjoining properties. In addition to the risk of future physical damage to existing buildings, the presence of the weed would make it more difficult and probably more expensive to develop the land. Eradication requires specialist removal as the soil contaminated by Japanese knotweed is controlled waste under environmental legislation.
In this case, the landowners’ properties adjoined land owned by Network Rail. It is believed that Japanese knotweed had been present for at least 50 years.
Identification of Japanese knotweed is important and it can sometimes be confused with other plants. Specialists need to be called in to eradicate the weed. The PCA Invasive Weed Control Group can provide a register of vetted consultants and specialists.
If a landowner is aware that Japanese knotweed may be present, it must be revealed in any pre-contract enquiries raised by buyers’ solicitors.
The recent case is a welcome decision in that it confirms that landowners can recover damages if their land is affected by Japanese knotweed. It also serves a warning that developers/large landowners must not ignore the presence of the weed or they could face liability.
Landowners, such as public bodies and housing developers must consider taking reasonable steps to prevent or minimise encroachment of Japanese knotweed onto adjoining land.
For more information, please contact steve.lunt@dtmlegal.com
