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The Invasion of the Japanese Knotweed Claim

The mere mention of Japanese Knotweed is enough to strike fear in the heart of any seasoned gardener. This invasive bamboo-like plant spreads rapidly, suppresses the growth of other plants and can potentially threaten property foundations. The first reported legal case involving knotweed emerged last month and it seems likely after sensational headlines appearing in many of the tabloids that there will be more cases of this kind to come.

In Williams & Waistell v Network Rail Infrastructure Ltd [2017] UK CC (2 February 2017) the claimants brought a claim in private nuisance claim against Network Rail Infrastructure Limited. The claimants' properties adjoined a railway embankment. The railway embankment had been infested with knotweed for 50 years, and had persistently spread to their land. They claimed that the knotweed had also reached the foundations of the properties and was preventing them selling their homes at their proper market value.

The court concluded that whilst there was evidence that the roots had encroached on to the properties and had even gone under the properties, there was no evidence of any damage to the foundations or the soil. The court therefore decided that there had been no physical damage to the property.

However, the court did find that the knotweed had interfered with the quiet enjoyment of the properties and that there had been a diminution in value of the property.

The claimants had shown that the interference was reasonably foreseeable and that the defendant had failed to do all that was reasonable in the circumstances to prevent the interference. The defendant had constructive knowledge of the risk of knotweed spread and the possible damage to property from around the time of the publication of the RICS and the Property Care Association knotweed guidance in 2012-13. The Court found that since 2012-13, the defendant had failed to carry out its obligation as a reasonable landowner to eliminate the knotweed problem. The defendant had sprayed the knotweed with herbicide, but the spraying was inadequate.

The claimants were therefore granted damages for:

• The cost of knotweed surveys, treatment programmes and insurance-backed guarantees.
• The residual diminutions in value of their properties after the treatment had occurred.
• General damages for loss of amenity and interference with quiet enjoyment.

Comment

Whilst this is only a county court decision, it is the first of its kind and has significant implications for those defending similar claims. Japanese Knotweed is now prevalent across the UK, and after the Judge confirmed in his Judgment that that claimants were in principle able to bring claims in private nuisance it seems inevitable that there will be a rise in similar cases.

For more information contact Katherine Milnes in our Insurance department via email or phone on 01254 222408. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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