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Japanese Knotweed – A Victorian Nuisance

Fri 28 Apr 2017

A recent case brought by two landowners against Network Rail in Cardiff County Court provides a warning to developers and landowners alike that Japanese Knotweed is a matter to consider as part of good estate management and not limited to a preliminary consideration when purchasing land. 

Unlike their architecture that adorns many of the streets of Britain’s cities, the introduction of Japanese Knotweed (henceforth ‘JKW’) to UK soil is something that we do not thank the Victorians for. It is said that contemporary nineteenth century gardeners took to JKW because of its impressive height and heart shaped leaves. Rather chillingly for landowners, Victorian horticultural journalists recommended planting JKW in clumps of two or three at a time.

The issues with JKW are well-known. The speed at which the plant can grow allows for it virtually to engulf any micro ecosystem whilst also puncturing manmade foundations.  JKW has slowed up many prospective land transactions with the ancillary costs of environmental surveys and the remedial action often proving to be a significant disincentive. In normal circumstances, issues with JKW are something to be considered when purchasing land. Lawyers, surveyors and environmental specialists will typically recommend a strong dose of surveys, inspections and safe removal. However, the case of Williams v Network Rail Infrastructure Limited [2017] UK CC (02 February 2017) also known as Waistell v Network Rail Infrastructure Limited [2017) UK CC (02 February 2017) (referred to below as ‘Waistell’) provides proof that JKW is something landowners should monitor at all times.

Waistell Facts

In Waistell, the Claimants, Mr. Williams and Mr. Waistell, both owned semi-detatched bungalows in Maesteg, South Wales neighbouring a railway embankment owned by Network Rail Infrastructure Limited. The embankment and path running along the rear of the Claimants’ properties were infested with JKW, but there was only evidence that a part of the JKW roots had spread onto the foundations of their property.

Both Claimants had sought to sell their properties, but due to the proximity of the JKW, surveyors classified the plant as a Category IV risk, and thus severely reducing the pool of residential lenders accepting either as security. It was recommended that, even after effective removal of JKW, there would be a diminution in value to the properties because of the previous Category IV risk.

Network Rail was aware of the presence of the JKW as both Claimants had contacted the service department to complain. Consequently, the Claimants brought a claim in nuisance against Network Rail for interference with their quiet enjoyment of land, with damages sought for the diminution in value of their respective properties. Further, the Claimants applied for a mandatory injunction for Network Rail to eradicate the JKW on its land.

Private Nuisance

Broadly, to have an actionable claim in private nuisance, a prospective Claimant will need to prove:

  • They have a direct proprietary interest in the land affected by the nuisance;
  • Damage caused must be substantial or unreasonable; and
  • That damage must be reasonably foreseeable.

In Waistell, although the Claimants had evidently seen a diminution in the value of their properties, the fact there was no physical damage to their properties was observed as being a significant hindrance.

Decision

After a three-day trial, the judge, Mr. Recorder Grubb, at Cardiff County Court held that Network Rail were in breach of their common-law duty as neighbours to the Claimants not to cause damage (nuisance) to their land. Despite the fact no physical damage was caused to the properties nor was there any loss of utility, it was held that the ability to dispose of land at its market value forms a wider part of a proprietor’s right to quiet enjoyment. Further, because the JKW was within 7m of the built structures on the Claimants’ land, it was a ‘proximate nuisance’ and therefore actionable. The court did not award a mandatory injunction, and exercised its flexibility in awarding damages in the alternative.

As a result, the Claimants were both awarded damages for the cost of remedial action to the JKW, and must crucially, damages for the diminution of their properties.

Conclusion

The outcome in Waistell has significant ramifications to landowners. Firstly, and as noted in this article’s preliminary remarks, it raises the issue that the management and effective removal of JKW is something that should form part of wider estate management. For those holding and retaining land, the continued inspection of land for environmental hazards is paramount, as ‘proximate nuisance’ means that physical damage to neighbouring land does not need to have actually occurred.

Secondly, and more holistically, the decision extends the actionable remit of ‘proximate nuisance’. Whilst the outcome of Waistell is relatively recent, and albeit a County Court decision, will it open up avenues in which Claimants can pursue claims in nuisances against neighbouring landowners? For example, there are many things a neighbouring landowner can do on his land that could fall within a ‘proximate nuisance’. Or is the outcome more specific to those relating to JKW? As a generation that gave us so much property to be admired, JKW is a Victorian legacy proving to be a particular nuisance. 

 

 

Charlie Proddow
Partner
T. +44(0) 7593 5131
E. cproddow@wslaw.co.uk
 

Ross Bentley
Trainee Solicitor

T. +44(0) 7593 1892
E. rbentley@wslaw.co.uk

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