Japanese Knotweed – It’s a real nuisance

The infamous Japanese knotweed is known for its damaging and invasive qualities, as well as being very difficult to eradicate. The ramifications of having Japanese knotweed on your property can be significant and it was deemed by the Royal Institute of Chartered Surveyors to pose a real risk when located within seven metres of a building. This bamboo-like plant’s ability to block drains, disrupt brick paving and cause structural damage means that the value of a property is typically negatively affected when Japanese knotweed is known to be present or nearby.

Recently, the Court of Appeal decided to uphold a decision which held National Rail liable for nuisance against proprietors of properties located adjacent to an embankment owned by it, which was home to a large stand of Japanese knotweed.

National Rail was aware of the presence of the knotweed in 2012 and was adjudged by the Court to have failed to adequately prevent its interference. Consequently, it was considered that National Rail unlawfully interfered with the claimants’ enjoyment of their properties, although exactly what constituted such enjoyment differed between judgments. Whereas the original judgment found that the diminished property value impinged on the property owners’ enjoyment of their properties, the Court of Appeal ruled that the ‘purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset’. The Court did, however, uphold the initial judgment on the basis that the ‘immediate burden’ of the ‘natural hazard’ reduced the Claimants’ enjoyment of the properties. Such burden concerns the greater difficulty and cost associated with further development on land if Japanese knotweed is present. As a result, the initial award of damages in the sums of £14,620 and £16,220 to Mr Waitsell and Mr Williams were upheld.

The key implication of this judgment is that if a land owner is aware of the presence of Japanese knotweed, and has not taken sufficient steps to minimise the risk of it encroaching upon neighbouring land, then the land owner may be liable for damages in nuisance. Whereas previous judgments, such as Lemmon v Webb, have suggested that physical damage to a property may be necessary for legal action to be successful, this judgment demonstrates that this is not necessarily a pre-requisite. Properties which are likely to be particularly susceptible are those which, as in the aforementioned case, are situated next to areas of growth that are unlikely to be frequently maintained.

With Japanese knotweed possessing destructive capabilities which can both severely hinder further development on a property, and also reduce its value, we recommend that you seek independent legal advice if Japanese knotweed has encroached upon your land from a neighbouring property. If you have been affected by Japanese knotweed and would like to discuss a potential claim, please contact Paul Kanolik (01202 057737 or paul.kanolik@ellisjones.co.uk).