Japanese knotweed: Court of Appeal sheds light on a growing problem

Japanese knotweed. Two words that can strike fear into the hearts of house buyers and sellers everywhere - especially with the media full of alarmist reports about the havoc this plant can wreak.

But now, the Court of Appeal has ruled in favour of two householders whose homes were affected by the voracious weed in a decision which could have implications for both landowners who have it on their property and those who live nearby.

Facts of this case

The Court of Appeal recently upheld damages awarded to two householders in South Wales whose adjoining bungalows had been affected by Japanese knotweed encroaching onto their properties from land owned by Network Rail.

Neighbours Stephen Williams and Robin Waistell originally brought a private nuisance claim on the basis that the Japanese knotweed, which had been present on the Network Rail-owned adjoining land for at least 50 years, had not only affected their enjoyment of their homes but affected their ability to sell them too (as a result of mortgage lender caution).

In February 2017 at Cardiff County Court, damages were originally awarded on the basis that Network Rail's breach of duty had caused a continuing nuisance and damage to Mr Williams and Mr Waistell.

Network Rail challenged this decision but the Court of Appeal ruled that Mr Williams and Mr Waistell were indeed entitled to damages albeit for a different reason - that although the knotweed hadn't actually caused any physical damage to their properties, its encroachment from Network Rail's land put a different complexion on the issue.

Network Rail, the court ruled, knew there was knotweed on its land, knew there was a risk it could spread to Mr Williams and Mr Waistell's gardens and failed reasonably to deal with that risk. Therefore, it was liable.

The Court of Appeal has refused to give Network Rail, said to be considering the implications of the latest ruling, permission to challenge its decision in the Supreme Court.

What does this mean for homeowners?

This case is useful to homeowners whose land contains Japanese Knotweed in understanding their liability in relation to any neighbouring properties.

It also offers some assurance that if a homeowner is aware that neighbouring land contains Japanese knotweed, the land owner could potentially be liable if they fail to implement measures to prevent/eradicate the knotweed (so as to cause issues for the homeowner).

What's all the fuss about?

It's certainly true that the South West, and particularly Bristol, is one of the worst affected areas in the country for Japanese knotweed which can grow rapidly, causing damage by exploiting weak points in footings and foundations, cavity walls, drains and tarmac.

According to a recent survey, the spread of this weed has knocked £20 billion off the UK property market with the value of affected houses diminished by 10 per cent, an average of £22,800 per property.

No wonder there are three pieces of legislation that provide powers to control the spread of Japanese knotweed:

• The Wildlife and Countryside Act 1981 makes it an offence to plant it or grow it in the wild;
• The Environmental Protection Act 1990 classes it as 'controlled waste' which must be safely disposed of at a licenced landfill site;
• The Anti-social Behaviour, Crime and Policing Act 2014 means refusing to deal with a Japanese knotweed problem on your property could put you in line for a Community Protection Order forcing you to take action and fining you if you don't.

What's the history of Japanese knotweed?

It first arrived in the UK in the 1840s when the Victorians loved to plant it as a highly decorative shrub, little realising the problematic legacy they were creating for their descendants decades down the line.

It was also popular with Victorian engineers who used it to hide, and possibly stabilise, railway embankments.

Today, although it is estimated that around five per cent of UK houses are affected by knotweed either directly or by a neighbouring property, only half the people surveyed recently were aware that a property owner is legally responsible for preventing it from spreading.

Not all bad news

Discovering Japanese knotweed on your property, or finding out about it in a property you are buying, doesn't necessarily mean the end of the road when it comes to a prospective sale or purchase.

Nic Seal, the managing director and founder of knotweed removal specialist Environet UK, says: "For those wishing to buy or sell a property, it doesn't have to be a deal breaker. Japanese knotweed can be dealt with once and for all, within a matter of days from discovery, so there is hope for buyers who may have otherwise walked away from their dream home."

Advice for sellers

When you are selling a property, you will be sent the Law Society's TA6 Property Information Form on which you are obliged to inform a future buyer if your property is, or has been, affected by Japanese knotweed, even if it has now been removed.

If you believe that you may fall into this category, it is important to take immediate action because whilst it's not an offence to have knotweed on your property, and there is no obligation to report it (although you must declare it on the TA6 referred to above), it is your responsibility to ensure it does not spread to any adjoining land.

If it does spread to neighbouring land then, you may be liable to compensate the adjoining owner for the costs of removal, as well as for the loss of enjoyment of their property and property damage.

The best course of action will probably be to investigate an active treatment and management plan as it is usually difficult for a prospective buyer to get a mortgage without these as well as an insurance-backed guarantee which can usually be passed onto a buyer and their mortgage lender.

Advice for buyers

If it turns out that a property you are buying has knotweed then you must notify your mortgage provider (who may already be aware of its presence if it was picked up when the property was valued).

Your mortgage provider will usually ask for a specialist report to be carried out (if there is not already an insurance backed Management Plan in place for the ongoing treatment of the knotweed).

This report categorises the risk to the property and lists the surveyor's recommendations. It can also be passed on to a specialist knotweed removal contractor who can decide the best way forward. You and the lender will then make a decision on whether or not to proceed with the purchase.

If you find knotweed:

• Don't try to dig it up yourself as this risks it spreading further;
• Don't take it to your local garden waste centre - it needs specialist waste management;
• Don't dispose of it in the countryside - this is against the law;
• Most importantly, take advice from a specialist - for example, the Invasive Non-Native Specialists Association (INNSA).

For more information, or to discuss buying and/or selling property, please contact Wards Solicitors' specialist Conveyancing Team.