03 September 2018 #Real Estate
Fallopia Japonica, otherwise known as Japanese knotweed, has always been seen as an aggressive nuisance to property owners but the recent case of Network Rail Infrastructure Limited v Stephen Williams and Robin Waistell  EWCA Civ 1514 has now confirmed that the presence of Japanese knotweed is also an actionable nuisance.
This case involves some knotweed on Network Rail’s land that was within 7 metres of the two claimants’ properties.
The Recorder initially allowed the nuisance action based on the diminished market value of the claimants’ properties because of lenders’ dislike for the invasive species.
On appeal it was felt the Recorder had wrongly extended the tort of nuisance to a claim for pure economic loss, but the Court of Appeal did uphold the nuisance decision as the claimants’ use and enjoyment of their land had clearly been hampered.
It was felt that the presence of Japanese knotweed imposes an immediate burden on the owner of the land as there is an adverse effect on the ability and cost of developing the land should the owner aim to do so, as such the owner's ability to use and properly enjoy the land is clearly affected.
The message for landowners is to be vigilant and wary. Japanese knotweed is infamously difficult to fully eradicate, and treatment is also governed by the strict regime set out in the Wildlife and Countryside Act 1982 (as amended).
Landowners should ensure that they carry out regular surveys and inspections especially if they have large land holdings that they do not physically occupy. If any knotweed is identified, then they should act fast to treat the invader.
When selling any affected land landowners must also ensure they provide accurate replies to enquiries setting out any potential risks.
Ignoring Japanese knotweed is no longer an option if potential claims for nuisance are to be avoided.