Landmark Ruling: Japanese Knotweed and the rights of neighbouring landowners

September 26, 2018

The Court of Appeal has ruled in favour of two private homeowners in an appeal brought by Network Rail regarding a private nuisance claim concerning Japanese Knotweed encroaching on the homeowners’ land.

The case began in 2015 when a claim was brought against the rail company by Mr Williams and Mr Wasitell. The Welsh County Court originally held that the monetary loss suffered by the homeowners because of the invasion of Japanese knotweed on their land constituted a claim for nuisance.

Although the Court of Appeal upheld the judgment given by the County Court that the two homeowners were entitled to obtain damages, its rationale for awarding damages was significantly different from that of the County Court.

  1. The Judge held that a claim based on encroachment by the roots was not actionable unless actual damage had been caused. This reaffirmed the principle that a claimant needs to actually suffer some damage for a claim to be actionable.
  2. Interference with quiet enjoyment or amenity value. The court stated: “…an individual’s ability to dispose or sell their property is a fundamental right of an owner protected by the tort of nuisance.”

The decision of the Court of Appeal indicates that the Courts will not always award damages to claims in private nuisance made by homeowners who have had their property reduced in market value due to an invasion of Japanese Knotweed. Rather, the burden is upon a claimant to prove that their use and enjoyment of the land has been seriously affected.

The Court of Appeal Judge, Sir Terence Etherton stated that “the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land as such as a facet of the right of ownership, or right to exclusive possession.” There are inherent difficulties in selling properties that are affected by Japanese Knotweed, owing to mortgage providers being unwilling to lend.

Sir Terence Etherton agreed with the Recorder in the County Court and stated there were significant factors which gave rise to nuisance, in that Network Rail;-

  1. Had actual knowledge of the presence of Japanese Knotweed on its land behind the claimants’ respective bungalows in 2013;
  2. Was, or ought to have been, aware of the risk of damage and loss of amenity to adjoining properties caused by the close proximity of Knotweed;
  3. Failed reasonably to prevent the interference with the claimants’ enjoyment of their properties.

The Court of Appeal Judge rejected the County Court’s finding that the basis of a nuisance claim could not be founded on the spread of knotweed rhizomes. Instead, he described the rhizomes of the Japanese Knotweed as a “natural hazard” affecting “the owner’s ability fully to use and enjoy the land” and that “they are a classic example of an interference with the amenity value of the land.”

This judgment delivers great clarity to those whose lands have been affected by Japanese Knotweed on the basis of making or defending a claim. If you require any further advice in relation to these matters please do not hesitate to get in contact.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.

Article by Senior Solicitor, Rachael Gamble, Dispute Resolution; and Solicitor, Jane McManus, Planning and Environment, Cleaver Fulton Rankin Solicitors.