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Articles 10th Mar 2015

A Knotty Problem: Japanese Knotweed on neighbouring land

It is now almost impossible to borrow against land affected by Japanese Knotweed, even if it’s on a neighbouring site. This article covers what measures can be taken to force a neighbour to deal with removal of the plant.

A landowner or occupier is under a duty to prevent the escape of Japanese Knotweed onto adjoining neighbouring land. There is however no legal obligation for a landowner or occupier to inform anyone that knotweed is present on the land or any legal obligation to remove or treat it. There are however legal obligations in the disposal of knotweed off-site, or the burning, burying or treating of it on-site. In brief, these are as follows.

The Local Authority has some discretionary powers in dealing with difficult neighbours with knotweed on their land. The Local Authority can serve a Notice under Section 215 Town and Country Planning Act 1990 (“S215”). The first step is to complain to the Local

Authority about the affected land. The Local Authority would always encourage a negotiation between neighbours first before looking to serve a Notice. If the negotiation is not effective, the Local Authority will then consider all the local circumstances, such as the condition of the site, the impact on the surrounding area and the scope of their powers.

If the Local Authority decides that action needs to be taken, they will firstly threaten the S215 Notice on the landowner or occupier. If this does not have the desired effect, it is then at the Local Authority’s discretion whether they serve such a Notice.

A S215 Notice requires a landowner or occupier to remedy the condition of the land within 28 days, where in the Local Authority’s opinion; the amenity of an area (or adjoining area) is adversely affected.

During the 28 day period, the landowner or occupier can apply to the Magistrates’ court against complying with the Notice, on any of the following grounds:

  • The condition of the land is as a result from the ordinary course of events Requirements of the notice are excessive
  • Time for compliance in thenotice is unreasonable
  • The infestation does not dversely affect amenity

If the occupier fails to comply with the Notice, the Local Authority can:

  • Prosecute the landowner or occupier in the Magistrate’s court with a fine currently not exceeding £1000
  • Step in to undertake the necessary works and recover reasonable costs from the landowner or occupier

Furthermore, under The Anti-Social Behaviour, Crime and Policing Act 2014, the Local Authority or the police have the power to serve a community protection notice on an individual (or body if applicable) if they are satisfied on reasonable grounds both that the conduct of an individual / body:

  • is having a detrimental effect, of a persistent nature, on the quality of life of those in the locality
  • is unreasonable

This legislation does not however explicitly refer to knotweed however the powers are intended to be flexible and it has been suggested in Home Office information that it could be used against an occupier failing to clear knotweed.

If no action is taken by a local authority an individual or a body can activate a ‘community trigger’ to request that the local authority deal with a persistant or previously ignored anti-social behaviour problem, which could apply to knotweed.

An alternative option, that a landowner or occupier could take themselves, is civil proceedings. If knotweed were to spread onto neighbouring land, this might amount to a common law nuisance.

The test for private nuisance is as follows:

  • There must be damage, or interference with the enjoyment of a neighbour’s land
    • which must be substantial or unreasonable; and
    • which may arise from a single incident or state of affairs.
  • The claimant must have a direct interest in the land affected by the nuisance.

If successful, the following remedies are available:

  • damages to compensate for loss; and/or
  • an injunction to prevent the continuing nuisance and prevent recurrence.

For any queries on Japanese Knotweed or if you are affected by knotweed, please contact a member of the firm’s environmental team.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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