Property owners and developers take note; a recent landmark case has clarified the scope of an action for nuisance based on the presence of Japanese knotweed.
Japanese knotweed is a dense, clump forming perennial plant that grows up to 2 metres high every summer. The roots can extend up to 7 metres horizontally and 3 metres vertically. It suppresses the growth of all other plants and can adversely affect structures such as drains, patios, paths, driveways and boundary walls. In extreme cases it can compromise the structural integrity of buildings. A new plant can grow within 10 days from as little as .7 grams of rhizome. Rhizomes can stay dormant for up to 20 years. Japanese knotweed is very difficult to eradicate. It is listed in Wildlife and Countryside Act 1981* as one of the plant species that cannot be planted or otherwise caused to be grown in the wild.
There is a large body of legislation, case law and best practice guidance from various interested organisations relating to the rights and obligations of property owners who have Japanese knotweed on their property. Penalties for causing Japanese knotweed to grow (which may include failing to restrict growth) include unlimited fines and imprisonment.
One of the avenues available to property owners who have Japanese knotweed growing on a neighbouring property has been an action for nuisance. A recent Court of Appeal case, Network Rail v Williams and Waistell*, has clarified the scope of the action.
In Network Rail v Williams and Waistell, Williams and Waistell were both owners of property that adjoined property owned by Network Rail. Network Rail’s property had large clumps of Japanese knotweed growing on it, which was encroaching onto the properties owned by Williams and Waistell.
The Court concluded that any diminution in the value of Williams’ and Waistell’s properties caused by the mere presence of Japanese knotweed was a pure economic loss, which could not give rise to a successful action for nuisance.
The Court, however, further clarified that the presence of Japanese knotweed can still be an actionable nuisance even before it causes physical damage to neighbouring land because its mere presence, in some circumstances, may be characterised as damage.
Property owners need to be extremely vigilant about the presence of Japanese knotweed on their own or neighbouring properties. The mere presence of Japanese knotweed may trigger various legal rights and obligations. Failure to take the appropriate measures to control the plant and even failure to check the property may lead to serious consequences, including criminal sanctions.
Consequently, whenever the presence of Japanese knotweed is detected on or adjoining a property, professional advice should be sought as quickly as possible. In this way, serious sanctions can be avoided and all avenues for redress can be properly explored.
* Part II, Schedule 9 of the Wildlife and Countryside Act 1981.
* Network Rail Infrastructure Limited v Williams and Another  EWCA Civ 1514
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
Other Property Development Articles
Court takes pragmatic approach in its first consideration of Practical Completion in construction contracts for 50 years.
The High Court has put climate change considerations firmly on the map by clearly stating that efforts to mitigate climate change, via optimal functioning of solar panels, are material considerations when it comes planning permission [...]
The background to this case provides sober reading for any landowners of vacant sites. In this instance, around 2000 tonnes of waste including food and medical waste was deposited on Newark’s vacant land without [...]
Anybody entrusted with selling property on the behalf of a lender can take comfort in the robust approach shown by the Court.
Barr Ellison acted in a successful application to modify a restrictive covenant for a developer which otherwise prevented their redevelopment of a site in Cambridge.
Restrictive covenants can be a headache for developers who have otherwise found the perfect piece of land on which to carry out their dream development.
It is always preferable for leases to contain express reservations to alter, build and erect scaffolding in favour of a landlord who might want to develop at some point in the future.
A Court of Appeal decision serves as a warning to developers of the dangers of proceeding with developments in breach of a restrictive covenant.
It is a strict requirement that a party needs to be in compliance with all conditions precedent before serving a notice to complete a property transaction.
Appellants would be well advised to take care when introducing new evidence to a planning appeal, ensuring that it is available in good time for public inspection, usually via the local authority’s website.