JAPANESE KNOTWEED CLAIMS
Japanese Knotweed Claims
Eradicating Japanese knotweed with the correct herbicides requires expert knowledge and qualifications. The most effective eradication program involves excavating the Japanese knotweed and moving it to a licensed landfill site. Both remedies are expensive and inconvenient, and if the Knotweed has encroached from a neighbouring property, there may be scope for a Japanese Knotweed claim for compensation.
Japanese knotweed Eradication Methods
Herbicidal Treatment
This method usually utilises primarily Glyphosate-based herbicides and presents a low risk of further spreading the Japanese knotweed. Typically, this method can now take up to three years to complete. This is far less time than the five-year period required for the method previously approved by the Environment Agency Guidelines.
Excavation and Removal (“Dig and Remove”)
This is an immediate solution that will leave the site free of Japanese knotweed. A full excavation of the patch of affected land, including an “exclusion zone” to cover an area up to seven metres away from the visible plant where the rhizomes (underground stems) may still be active is required. The soil is removed and removed into an approved landfill site.
Japanese knotweed and the law
Landowner responsibility
Japanese knotweed is a highly invasive non-native species which is proscribed under The Wildlife and Countryside Act (1981). The Wildlife and Countryside Act (1981) recognises the need to control certain species of invasive plants causing a problem in the UK, listing them in Schedule 9. Section 14.2 of the Wildlife and Countryside Act 1981 makes it an offence to plant or otherwise cause knotweed to grow in the wild.
The Environment Agency knotweed Code of Practice “it is not an offence to have knotweed on your land and it is not a notifiable weed”. It is generally thought that private land and in particular gardens do not come within the definition of wild. Under the Environmental Protection Act 1990 all knotweed material (and soil containing knotweed) is classed as controlled waste and must be disposed of at a licenced landfill site under codes of practice.
However, as between private landowners where knotweed moves from one property to another the relevant law is that of private nuisance. A private nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land. An individual/organisation must be given the opportunity to deal with a nuisance that he/it creates. It is therefore important that a landowner/occupier puts his neighbour on notice in writing as soon as encroachment occurs and states what action he requires the landowner to take and by when.
In the case of Japanese knotweed, it is almost certainly going to be the case that a landowner/occupier will require his neighbour to effectively treat the knotweed not only on the neighbour’s land, but his own property in order to solve the problem.
In the event of a neighbour failing to cooperate legal action may be commenced seeking various remedies including damages falling to the cost of a treatment programme and guarantee; in some cases the diminution in value of the property and injunctions forcing the neighbour to carry out specific methods of treatment.
The main legal case for Japanese knotweed claims is Williams’s v Network Rail.
Williams’s v Network Rail
The Williams v Network Rail Japanese Knotweed claim was successful at trial, and is now considered the landmark case in economic loss for a private nuisance Japanese Knotweed claim following encroachment onto neighbouring land. Network Rail appealed and the case was heard by three Justices including the Master of the Rolls in the Court of Appeal in June 2018. The High Court accepted that it was important enough to justify leapfrogging it straight to the Court of Appeal. The Master of the Rolls – Sir Michael Etherington, Lady Justice Sharp and Lord Justice Leggatt agreed that actual physical damage was not required and that just the presence of Japanese Knotweed rhizomes caused an interference with Mr William’s quiet enjoyment of his property. As a result, Mr Williams was entitled to damages for the diminution in value of his home because of the presence of Japanese Knotweed, and his claim succeeded.
Individual Liability
An individual/organisation can be liable for allowing nuisance to continue even if he/it did not create it and came in after it was established. Therefore, a purchaser of land should always have the land properly surveyed before buying because although he would not be responsible for past damage, he will be responsible for continued damage, and may be subject to a Japanese Knotweed claim. Equally a seller could remain liable for damage caused prior to the date of sale and further, guilty of misrepresentation to a buyer if he has not correctly responded to the questions regarding knotweed in the seller’s questionnaire (TA6 Law Society Form).
Potential legal implications
The Anti-Social Behaviour, Crime and Policing Act 2014 states that failure to act” i.e. property owners not controlling Japanese knotweed where it affects the quality of life of those in the community could find themselves being served with a Japanese Knotweed claim and an ASBO or Community Protection Notice. Failure to comply with the Community Protection Notice could result in a criminal offence and large fines up to £2,500 for individuals and £20,000 for organisations.
Japanese knotweed contaminated soil is classed as ‘controlled waste’ and as such must be disposed of safely at a licensed landfill site according to the Environmental Protection Act (Duty of Care) Regulations 1991. Soil containing rhizome (root) material can be regarded as contaminated and, if taken off a site, must be disposed of at a suitably licensed landfill site and buried to a depth of at least 5m.
If you need any further information on Japanese Knotweed claims, just get in touch.
Japanese knotweed is a particularly invasive weed that spreads rapidly and is extremely difficult to eradicate. A native of Japan, it is a strong, clump-forming perennial (a plant that lives for many years), listed in the top 100 most invasive plants in the world. Its eradication is hugely important due to its capability to displace native species, and its ability to grow through tarmac, brick walls and inside pipes, potentially causing extensive damage.
