Liability for Japanese knotweed

23 Aug 2018

Waistell & Williams v Network Rail Infrastructure Limited [2018] EWCA Civ 1514

Judgment was handed down by the Court of Appeal in this case on 3 July 2018.

Japanese knotweed is a pernicious weed and natural hazard. The hair-like rhizomes of the plant are extremely invasive and can cause damage to concrete. The Environmental Protection Act 1990 designated Japanese knotweed as “controlled waste” and sets down various conditions and penalties regarding its removal and disposal.

Network Rail Infrastructure Limited is the body that owns and manages railway infrastructure. Knotweed had existed on railway land next to the Claimants’ houses for over fifty years, and was encroaching onto the Claimants land. All of the parties accepted that this reduced the value of the Claimants houses. The County Court awarded damages on that basis.

On appeal to the Court of Appeal the decision of the Recorder in Cardiff County Court upheld this decision, although for different reasons. The Court of Appeal did not agree that the spread of the rhizomes onto the land did not constitute physical damage, and awarded damages based on “interference with utility and amenity” (paragraph 64 of the judgment).

  • However, damages for pure economic loss (i.e. the reduction in value of the houses) were not allowed. The purpose of the law of private nuisance is to protect use and enjoyment of land, the Court of Appeal said (paragraph 48 of the judgment).
  • The encroachment of the knotweed (and its rhizomes) on to the property could be a private nuisance even if no physical damage was caused by it (or at least not caused yet); and
  • Accordingly there was no reason why a claimant should not be able to obtain injunction where the amenity value of land is diminished by the presence of roots even though there is no physical damage – or at least no physical damage yet (see paragraph 72 of the judgment)

If you or your property have been affected by these issues, by a private nuisance, or even by Japanese knotweed, get in touch with one of our expert lawyers. Call us now on +44(0)20 7354 3000 or email enquiries@colmancoyle.com.

This blog is an edited version of a training webinar given by Michael Large of Colman Coyle to LexisNexis (a leading supplier of training to lawyers) on 16 July 2018.

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