Knotweed a potential point of contention for neighbours

UK case: Potential for landowner to take ‘Tort of Nuisance’ suit over invasive plant

Japanese Knotweed is an extremely fast-growing, non-native plant with a massive root structure that is capable of undermining walls, roads and even building foundations and which has proven difficult to get rid of.

There has been much commentary on Japanese Knotweed in the past number of years.

It has commonly been described as a nuisance, but new developments in a UK Court of Appeal case have brought to light the potential for a landowner to sue in the Tort of Nuisance, in response to an infestation of the weed on their land that is caused by another.

Law relates to protection of rights relating to land use

The law of private nuisance is concerned with the protection of rights relating to the use of land.

There are two types of nuisance, one where there is actual damage to the claimant’s land and one where there is an interference with the claimant’s use and enjoyment of the land.

In the UK Court of Appeal case of Network Rail Infrastructure v Williams & Waistell [2018] EWCA Civ 1514 which was an appeal from an earlier case, Japanese Knotweed from land belonging to Network Rail Infrastructure (NRI) spread to the claimants’ respective lands.

The claimants sought an injunction requiring NRI to treat the Japanese Knotweed on their land and also sought damages. The court of first instance found that NRI had been in breach of a duty and had caused a nuisance.

It did not grant the injunction sought which would require NRI to remedy the problem, but did award damages, including the cost of treatment and general damages per year that the claimants had been affected.

It was appealed in the Court of Appeal who found that the NRI had actual knowledge of the presence of Knotweed on its land which was adjoining the claimants’ land and it knew or ought to have known of the risk of damage and loss of amenity to adjoining lands at the time; and knowing this NRI failed to prevent interference with the claimants’ enjoyment of their respective properties.

The court clarified that the diminished ability to use and enjoy the amenity of their lands would constitute damage here.

There have been no Irish Japanese Knotweed cases as of yet but it is only a matter of time.

The Irish courts look to the UK where there is no Irish authority on a subject and if this kind of case is taken this UK Court of Appeal decision will be persuasive.

If you are aware of neighbouring lands which have Japanese Knotweed, it strongly advisable to take action or there is a great risk it may spread to your lands or property.

Three advisable actions

It would be advisable to consider the following options:

  • Engage an environmental consultant who holds a license and has expertise in the treating of Japanese Knotweed to carry out an inspection of your land or property to ascertain whether Knotweed is present and to advise on potential treatment plan and/or in respect of the risks as to whether the Knotweed may spread to your land.
  • Engage an auctioneer to advise you whether the value of your property has been affected by potential presence of Knotweed.
  • Instruct your solicitor to advise regarding your legal options. There are a number of remedies here you may wish to consider — including damages and injunctive relief ordering that the knotweed is treated correctly.

In relation to landowners, it is advisable that they seek legal advice — whether they feel that their land may have an infestation that could potentially interfere with a neighbour’s use and enjoyment of land; or if they feel that a neighbour’s infestation is negatively impacting their own use and enjoyment of their land.

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