Legal advice: You need a licence for safe disposal of knotweed or its contaminated soil

Control of invasive plants is governed by European and Irish legislation, writes Karen Walsh.

Japanese knotweed is a non-native plant species, originally from Japan and Northern China, and first introduced to Europe in the 19th century.

Japanese knotweed is an invasive plant, and there is a significant risk of it spreading via fragmentation of stems, and the plants very strong, resilient underground rhizome growth.

The tiniest piece of the plant can regrow.

A number of county councils have issued leaflets on the control and management of invasive plant species, specifically targeted at Japanese knotweed.

Recently, planning permission for a facility to treat the Japanese knotweed plant in Ballyhaunis, Co Mayo, has been refused over, concerns it could not be guaranteed that the invasive plant would not spread from the site.

A Co Kerry-based company, Pacs Ltd, trading as the Japanese Knotweed Company, had applied for planning permission for a facility to treat soil and stone waste containing Japanese knotweed at a disused quarry near Ballyhaunis.

The project was thought to be the first of its type in Europe.

Japanese knotweed and related knotweed species are categorised into a group of unwanted plants known as invasive alien plant species.

    Control of these species in Ireland is governed by both European and Irish legislation, namely:

  • Regulation 49(2) of the European Communities (Birds and Natural Habitats) Regulations, 2011
  • Section 40(1) of the Wildlife Act, 1976, as amended
  • EU Regulation No. 1143/2014 of the European Parliament and of the Council of October 22, 2014, on the prevention and management of the introduction and spread of invasive alien species
  • Use of Plant Protection Products Legislation.

As a result of recent EU regulations on the control of invasive alien species (EU Regulation 1143 2014), many local authorities are now taking steps to deal with knotweed, and Irish property owners are now obliged by law to take proper measures to control/eradicate the plant, if it grows on their land.

You are now legally required to obtain a licence from the National Parks and Wildlife Services for the safe disposal of Japanese knotweed plant material or of contaminated soil.

If Japanese knotweed has spread from neighbouring land and is now encroaching on your land, you may be able to pursue a claim for damages against your neighbour, under the Law of Nuisance.

There is English case law supporting this.

In one particular case, knotweed had spread from a railway line to neighbouring land, and the court held the value of the land was reduced by the presence of the knotweed, and that the defendant had failed to take steps to minimise the hazard.

In another case, the court granted an injunction requiring the defendant to enter into a contract with a reputable contractor to treat the knotweed on land.

    If you believe there is knotweed on your land, it is advisable to consider the following steps:

  • Engage a reputable contractor who has experience of treating knotweed to carry out an assessment of your property, to ascertain where the knotweed has come from, and to advise on a potential treatment programme.
  • Do not treat the knotweed or dispose of the knotweed without first obtaining advice from either a contractor, your local council, or the National Parks and Wildlife Service (NPWS).
  • Be aware that you are required to have a license when disposing of knotweed.
  • If knotweed is present on your land, ensure that the knotweed is not dispersed through other means, such as machinery kept on your lands.
  • If you have evidence that the knotweed has spread to your land from neighbouring land, you should consult a solicitor as to your legal options.
  • If there is a basis to bring a case under the law of nuisance, you can seek damages, or look for an injunction to have the knotweed treated.

If you are pursuing such a case, an auctioneer should be engaged to advise whether your property has been devalued.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

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While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.

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