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Caselaw 10th Jul 2018

An issue knot to be ignored

In the recent case of Network Rail Infrastructure Limited v Stephen Williams and Robin Waistell the Court of Appeal ruled that the presence of Japanese knotweed on Network Rail’s land had diminished the adjoining homeowners’ ability to enjoy the amenity and utility of their properties. Mr Williams and Mr Waistell were therefore entitled to damages despite the fact that they were not able to prove any physical damage to their property – the mere presence of the roots was sufficient.

What’s the problem?

Japanese knotweed is an invasive plant and is incredibly difficult to eradicate. It grows quickly by spreading underground rhizomes (rootstalks) horizontally and has the potential to cause physical damage to buildings, making any proposed development of land more difficult and more costly. It can also affect a lender’s willingness to fund the purchase of any such affected property.

What does this mean?

Japanese knotweed is already subject to strict controls under the Wildlife and Countryside Act 1981 (as amended by the Infrastructure Act 2015). Following the Court of Appeal’s decision, landowners could also now find themselves on the wrong end of a claim for private nuisance. Given the invasive nature of the plant, there are likely to be many claims in the future.

This is particularly concerning for landowners such as Network Rail, who have vast estates which are often unmanaged. A system of monitoring and treating the plant may therefore need to be implemented to limit the risk of further claims being pursued in the future.

The judgment makes clear that landowners must take reasonable steps to prevent or minimise the spread of Japanese knotweed from their properties. Other considerations include the following:

  • Environmental regulators now have powers to serve ‘species control orders’ on landowners and occupiers requiring them to control Japanese knotweed on their land. Breaching a species control order is an offence.
  • When treating Japanese knotweed, there are a number of regulatory issues to consider – for example, only approved herbicides may be used and there are strict controls on the management of Japanese knotweed waste. The safest solution is to use a competent contractor who can provide an insurance-backed guarantee.

If you would like any further information in relation to any of the above, please do not hesitate to contact a member of Freeths’ property teams and / or specialist environmental team.


Ben Gant

Associate

Real Estate Group


The content of this page is a summary of the law in force at the present time 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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