08 August, 2018
A recent Court of Appeal ruling, Network Rail Infrastructure Ltd v Williams and another  EWCA Civ 1514, has raised the importance of dealing with Japanese knotweed as soon as you become aware of it. As Network Rail found knowledge of the presence of knotweed and a failure to reasonably prevent it spreading even where there is no physical damage could become costly.
What is knotweed?
Japanese knotweed is an invasive plant which can cause significant problems to properties and land and can be expensive and time consuming to treat, remove and dispose of. In some circumstances it may also impact upon the value at which you can market your property. It's roots (rhizomes) are said to be capable of spreading up to seven metres!
The claimants were Mr Williams and Mr Waistell who lived in two semi-detached bungalows in Maesteg, South Wales.
Their bungalows adjoined a railway embankment and an access path owned by Network Rail. Both the railway embankment and path had been infested with knotweed for 50 years and had spread to Mr Williams and Mr Waistell's land.
The pair brought a joint claim in private nuisance against Network Rail.
They claimed firstly that Network Rail were liable due to knotweed being present and encroaching on their land and secondly; that the presence of knotweed on Network Rail's land was an interference with the quiet enjoyment and amenity value of their land as it affected their ability to sell their property at market value.
The County Court rejected the first limb claim in relation to encroachment on the basis that no physical damage had been caused but their claim succeeded with the second limb on the basis that they were not able to sell their properties at their market value due to the 'nuisance'.
Court of Appeal
Network Rail appealed to the Court of Appeal who upheld the decision of the lower court but for different reasons.
The Court of Appeal rejected that nuisance is to be used to protect the value of property as a financial asset and confirmed the lower court had erred in their decision as nuisance cannot be used only for a claim of pure economic loss.
However, the Court of Appeal held that knotweed can be an actionable nuisance before it causes physical damage to neighbouring land. The presence of rhizomes imposed an immediate burden on landowners in terms of an increased difficulty and cost of developing the land should the owner wish to do so which affected the owner's ability to fully use and enjoy the land and of course sell on.
Network Rail's knowledge of the presence of knotweed and a failure to take reasonable steps to prevent the invasive plant from blighting the properties of Mr Williams and Mr Waitstell's was sufficient to give rise to a cause of action in nuisance.
What does this now mean?
Those property owners who are proved to be a source of Japanese knotweed may now be liable to pay out if their negligence has allowed the knotweed to spread to neighbouring land regardless of whether actual physical damage has been caused.
Sellers who have been untruthful on the 'Property Information Form' or other pre-contract enquiries may also face claims for damages but also this is a query that lenders make when bulk charging your property stock and must be answered truthfully. As this can affect property valuations it is increasingly important that this be something to look out for on site visits.
Should you require any further advice and assistance in relation to this matter please do not hesitate to contact a member of our Housing and Regeneration Property team on 01772 220022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.