A knotty problem………

Stephen Williams -v- Network Rail Infrastructure Limited (Case No. B2OYX969) Robin Waistell -v- Network Rail Infrastructure Limited (Case No. B34YJ849) Cardiff County Court

Summary

Network Rail has been found liable to adjoining homeowners for allowing Japanese knotweed to grow on their land, causing loss of enjoyment. Damages included the cost of treatment, distress and the reduction in value of the properties - which was still lost despite the assumption that the Japanese Knotweed had been eradicated.

Given the proliferation of Japanese Knotweed and the fact that it will affect the value of properties and the availability of mortgages, this is a very important case.

The facts

The Claimants each owned a bungalow which backed on to a path and embankment leading to a railway line, all of which were owned by the Defendant, Network Rail. It was accepted that Japanese Knotweed had been present on the embankment for around 50 years. Although it had entered the Claimants’ properties, it had not yet caused any physical damage.

Japanese Knotweed was originally introduced to the UK in the 1800’s as an ornamental plant. Unfortunately it has the unforeseen ability to grow vertically at an extremely fast rate – up to four inches a day in the summer months. More importantly, it also spreads horizontally through its “rhizomes”, or creeping rootstalks, and is strong enough to cause damage to foundations and/or brickwork.

For this reason, it is an offence pursuant to the Wildlife and Countryside Act 1981 for any person to plant or otherwise grow Japanese Knotweed. Furthermore, any soil or plant material contaminated with Japanese Knotweed is classified as “controlled waste” pursuant to the Environmental Protection Act 1990 and therefore must be disposed of in accordance with that Act.

In this case, the Claimants discovered that the Japanese Knotweed had encroached onto their land from the adjacent land owned by Network Rail.

Consequently they brought proceedings seeking:

  • an injunction requiring Network Rail to remove the Japanese Knotweed;
  • the cost of buying insurance for the future;
  • damages for distress and inconvenience; and
  • damages for the loss in value of their properties which would exist even after the Japanese Knotweed was destroyed.

The Claimants framed their claim in private nuisance in two ways:

  1. The Japanese Knotweed encroached on their land as evidenced by the existence of the roots and rhizomes (the “Encroachment Claim”); and
  2. The presence of Japanese Knotweed was an interference with their quiet enjoyment or amenity value of the land (the “Loss of Amenity Claim”).

It was expected and accepted that at some point the Japanese Knotweed would be destroyed. However, the Claimants considered that they had suffered a permanent loss in the value of their properties due to Network Rail’s past failings to deal with the Knotweed.

This was, of course, denied by Network Rail.

The arguments

The Claimants argued that they did not need to prove damage to their properties in order to establish the Encroachment Claim. The mere presence of the Japanese Knotweed was sufficient to constitute a private nuisance. They also argued that the Japanese Knotweed constituted an interference with their rights to enjoy their properties, as its presence affected their ability to sell them. They relied upon evidence as to their attempts to sell and the reduction in value of their properties – not least the fact that mortgage lenders will not usually lend money on a property where there is Japanese Knotweed within seven metres of the built structure. This is the case even if the Knotweed is actually on neighbouring land.

This was denied by Network Rail, which argued that the mere spreading of the roots itself was not damage and therefore they could not be liable. Further they argued that any encroachment was de minimis.

Network Rail also argued that the Loss of Amenity Claim should fail as there had been no interference with the Claimants’ “use or enjoyment” and the fact that their properties were harder to sell after the Japanese Knotweed had been eradicated was irrelevant. This was not the same where a landowner’s enjoyment is affected through noise, smell or dust.

The decision

After examining all the authorities, the Judge rejected the Encroachment Claim. The Judge ruled that the Claimants must demonstrate damage of some kind from the encroachment in order for them to succeed. That damage could be to the structure of their properties or the impact that the rhizomes had on the soil moisture. However, in the absence of any such evidence, there was no such damage.

However, the Judge accepted the Loss of Amenity Claim based on the anticipated diminution in value. The Judge accepted that the properties were effectively blighted by the encroachment, even following treatment of the Japanese Knotweed.

However, the Court refused to grant an Injunction forcing Network Rail to treat and destroy the Japanese knotweed as the terms of any such order would be vague and difficult for the Court to police.

Instead, the Judge awarded damages for distress and inconvenience to the First Claimant in the sum of £1,400 (the Second Claimant did not include this head of damage). Other sums were awarded for a survey and guarantee.

Most importantly, the Judge also awarded the Claimants £10,500 and £10,000 respectively in respect of the loss in value. However, the Claimants may not have been too happy as they were in fact seeking three times those amounts.

Our comments

Had there been physical damage to the Claimants’ properties, this case would not have been unique. It is well established that in such cases, the adjoining owner is potentially liable. However, it is interesting that Network Rail were found liable where no such damage had occurred. It is perhaps correct, however, that the Claimants had suffered a permanent loss of amenity or quiet enjoyment of their properties and should be compensated.

This may very well result in a flood of claims against Network Rail and other similar entities unless they take fast action to identify and destroy this aggressive plant.

If you find Japanese Knotweed on your land or neighbouring land, it is important to address the issue immediately given how quickly it may cause damage. This case demonstrates that you could still be liable for damages, even after the problem has been treated.