In the recent case of Waistell v Network Rail Infrastructure Limited, the court considered a claim for damages arising from the existence of Japanese Knotweed on a neighbour’s land.
Japanese Knotweed is a strong bamboo-like plant that grows incredibly quickly. The plant can spread underground via its roots and can cause damage to property and paths. Purchasers of properties in the vicinity of Japanese Knotweed can have trouble being granted mortgages. As a result, sellers can have trouble selling a property that is affected by Japanese Knotweed. RICS set out in their Information Paper from 2012 that the affected radius is seven metres.
Waistell v Network Rail Infrastructure Limited
The claimants owned neighbouring semi-detached bungalows in South Wales and the defendant owned an access path behind the bungalows as well as an embankment where a large amount of Japanese Knotweed had been growing for around 50 years. The defendant had been aware of the plant since 2008 as it was found during a track inspection and had been controlling the weeds to maintain visibility on the line.
The claimants argued that the defendant was liable for the plant’s encroachment on their land and that the presence of the plant was an interference with their quiet enjoyment of their properties and had caused the value of their properties to decrease.
The claimants were not successful in proving that the plant caused damage to their properties. However, they were successful in providing that the presence of the plant had devalued their properties and that even if the plant was treated and controlled the value would still be lower than that of market value.
The court held that he defendant had constructive knowledge of the risks associated with Japanese Knotweed and that the defendant had failed to properly carry out their obligation as the landowner to deal with the plant – whether to dispose of the plant completely or to the control the spread of the plant.
The court awarded the claimants £15,000 in damages in respect of the diminution in the value of their properties and to cover the costs of treating the knotweed affecting their properties.
Usually damages for a claim of nuisance are only awarded where the claimants have suffered actual damage to their property rights, however the decision in Waistell allows for a claim to be successful even where there has been no physical damage to properties.
The judge set out that a claim for nuisance could be successful despite the actual nuisance not being on the claimants’ land. It will be interesting to see how wide the courts apply or consider this case or whether it will be considered only in relation to cases involving Japanese Knotweed.
The decision in this case will likely lead to an increase in similar cases where Japanese Knotweed has been left untreated. Claimants will be able to claim for (1) the costs of removing the Japanese Knotweed or a court order requiring the defendant to remove the plant, (2) the costs for any building/repair works to be made to the claimant’s property as a result of the Japanese Knotweed and (3) the diminution in value to the claimant’s property due to the plant.
What should we do now?
Practically, landowners are left with the onus of removing, treating and dealing with the plant. As such any landowner with knowledge that the plant is growing on their land should ensure that they deal with or remove it as set out in the regulations.
The decision in Waistell is not a binding one but may allow affected property owners to rely upon the decision to prove their own cases. It will be interesting to see whether Network Rail Infrastructure Limited appeal the decision and run the risk of making the decision binding if they are unsuccessful upon appeal.
For more information please contact Sarah Farish.