Japanese knotweed: a knotty problem
Whether you are managing, developing, buying or selling commercial property, Japanese knotweed can be a real problem. This invasive species is costly to remove both in contractor’s costs and the time involved. There are various possible criminal penalties for the landowner. There is also the possibility of action by neighbouring land owners.
There has been recent Court of Appeal guidance on the potential actions by neighbouring properties. The decision by the lower court (which was then appealed) attracted a significant amount of attention as the initial judgement appeared to extend the law of nuisance to include claims for economic loss. The Court of Appeal rowed back from this analysis and gave some useful clarity about these types of claims. Ultimately, although the appeal by Network Rail was dismissed, the rationale in the judgement was different from that used by the lower court.
Turning to the facts, this was a claim by neighbours against Network Rail. Their properties were next to an access path and a railway embankment owned and controlled by Network Rail which was infested with Japanese knotweed. There was no physical damage to the claimants’ houses, but they claimed the value of their houses was diminished by the presence of the knotweed. They claimed (amongst other things) for economic loss.
The Court of Appeal said that the purpose of the tort of nuisance was not to protect the value of property as an investment, but rather to protect the landowners use and enjoyment of the land. However, they went on to class knotweed as a natural hazard and that it limited the amenity use of the land. There did not need to be physical damage in order to affect the amenity value of the land which meant that an injunction is available to prevent damage rather than to just stop damage once it is occurring.
This might all sound like splitting hairs, but it is useful clarification in a complex area. It means that landowners have the ability to protect their land from any interference (e.g. by an invasive plant, dust, fumes or noise) even if it is yet to cause physical damage to a landowner’s property, if the amenity value of the land has been diminished.
The clarity of the Court of Appeal will make it easier for landowners to bring claims, but it will also hopefully help parties reach a compromise without have to resort to the courts.
Network Rail Infrastructure Ltd v Williams  EWCA Civ 1514
For more advice these issues please contact Jen Morris, Dispute Resolution & Debt Recovery, Real & Construction Partner at gunnercooke
DD: 07508 352570