Japanese Knotweed back in court
You may remember an article printed in the Spring edition of Landscape News, where I discussed a legal case between Network Rail Infrastructure and two members of the public, Mr Williams and Mr Waistell.
Mr Williams and Mr Waistell own adjoining bungalows in south Wales. The land immediately behind their properties is owned by Network Rail and contains an embankment with a significant infestation of Japanese Knotweed.
Initial judgement
Mr Williams and Mr Waistell took Network Rail to Cardiff County Court in 2017 and issued claims under the law of tort.
A tort is a civil action that causes the claimant to suffer loss or harm. The aim of action under tort law is to obtain a private, civil remedy such as damages. There are different categories of tort, including:
• Negligence • Statutory
• Nuisance
• Defamation • Business
A tort of ‘nuisance’ was brought about by the claimants on the basis that Japanese Knotweed had:
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Encroached on their properties
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Reduced the value of their house
During this trial, the court determined the claimants were entitled to succeed in their claim because of the reduced market value of their properties – caused by the close proximity of the Japanese knotweed.
The judgement was based on the following:
• From 2008 to 2009 Network Rail should have known about the presence of Japanese knotweed on their land, and by 2012 should have known it posed a reasonably foreseeable risk of causing damage or loss of amenity to the claimant.
• Actual knowledge of the Japanese knotweed arose when the claimants first complained in 2013, and in those circumstances, Network Rail’s treatment of the Japanese knotweed was inadequate and unreasonable, and in breach of their duty as a landowner. It was this breach of duty that caused a diminution in the value of the properties which made the claim in private nuisance successful.
Network Rail appealed this decision.
Appeal judgement
When taken before the Court of Appeal earlier this year, the overall decision made in the County Court was upheld, but on completely different technicalities.
The purpose of the tort of nuisance is not to protect the value of property, but the land’s intangible amenity value which concerns landowner’s use and enjoyment of the land. Therefore, there is no right under the law of tort to protect a home owners financial interests, and in complete contrast to the earlier decision at the county court the claimants were not entitled to pursue this course for damages.
The Court of Appeal did, however, allow the claimants to succeed in their claims for private nuisance because of the encroachment of Japanese knotweed rhizomes on the claimants’ properties. The court held that Japanese knotweed imposes an immediate burden on landowners who wish to develop their land, due to the difficulties in eradicating it.
Conclusion
The revised judgement has shown that, whilst a claim cannot be made for any immediate diminution in value of land, inadequate management of Japanese knotweed by a landowner can lead to claims for damages under enjoyment of land and amenity value.
Link to full detail of case:
https://www.judiciary.uk/wp-content/uploads/2018/07/network-rail-v-williams-judgment.pdf