The Practical Lawyer

Home
About
CPD
Subscribe
Contact

Knotweed – nuisance

Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now gone to the CA, which has confirmed that there is a ‘nuisance’ – but for entirely different reasons.

The legal logic in the county court had been straightforward: the homeowners suffered a ‘loss of enjoyment’ of their property, through its diminution in value (because lenders will not grant mortgages if knotweed is present). Thus, they were entitled to damages – the diminution in value of the properties. The CA disagreed and found its own reason for there to be liability:

  • Presence of knotweed on neighbouring land may reduce the value of the claimant’s land – but that is not an actionable nuisance. The purpose of nuisance is ‘not to protect the value of property as an investment or a financial asset’, but to protect the ‘right to exclusive possession’ and ‘the use in enjoyment of the land’. In short, diminution in value could not, of itself, be an interference with the use and enjoyment of land. This leads to an important conclusion: A does not have a course of action if B does something (or omits to do something) on B’s land that leads merely to a reduction in value of A’s land. It will only be actionable if B interferes with the ’comfortable and convenient enjoyment’ of A’s land.
  • But, if there is an encroachment the position is different. Whereas the county court thought there had to be physical damage to the claimant’s land (eg damage to foundations), the CA disagreed. In its view, the encroachment of knotweed on to one’s land is ‘a classic example of interference with the amenity of the land’. It is ‘a “natural hazard” that affects the owner’s ability fully to use and enjoy the land’. In this particular case, the defendant (Network Rail) knew there was knotweed on its own land; knew there was a risk of spreading to the claimant’s land; and it failed reasonably to deal with that risk. Accordingly, it was liable.

So, Network Rail was liable for the knotweed – but what was the claimant’s remedy? The county court had awarded damages based on the diminution in value of the property but that was impliedly disapproved of by the CA. However, the CA did not interfere with the award of damages – but gave no guidance as to the proper level of damages!

There are strong arguments that the damages should be for the costs of remediation (ie removing the knotweed) only. Insurers will no doubt argue that there is no evidence to support claims that market values are reduced if insurance-backed treatments are carried out. In the absence of data showing reductions in value and if remedial works had been carried out, it is difficult to see how additional damages may be payable. At the same time, the CA seemed to concede the possibility of a mandatory injunction being granted before knotweed spreads from the defendant’s land to the claimant’s land – so that might well be the best remedy.

Frankly, the CA decision is unhelpful. There is now considerable confusion as to the basis of damages. To complicate matters further, there may also be difficult arguments over limitation periods: if the ’damage’ occurs when the knotweed first encroaches on the claimant’s land, then it will no doubt be argued that many claims are statute-barred!

See Network Rail v Williams [2018] EWCA Civ 1514 (this case report is available in full at www.bailii.org). Source: Hardwicke Chambers.

 

Most-read articles

Constructive trusts – property
Wednesday, 12 September 2018
The author gives a helpful analysis of a ruling following a claim to establish a constructive trust or proprietary estoppel in respect of a domestic property. The deceased died intestate while living... Read more...
Professional negligence – adjudication
Wednesday, 12 September 2018
The Professional Negligence Adjudication Scheme is run by the Professional Negligence Bar Association. It offers a voluntary ADR procedure, modelled on the adjudication system in construction... Read more...
Waste – L’s liability
Wednesday, 12 September 2018
Ls should be aware of the environmental enforcement obligations that may be incurred as a result of T’s activities. Read more...
Part 36 – late acceptance
Wednesday, 12 September 2018
If a Part 36 offer is accepted out of time (ie outside the 21 day period) in a low value protocol case, then what are the costs consequences? In particular, does late acceptance mean a liability to... Read more...
HMOs – new rules
Wednesday, 12 September 2018
The definition of house in multiple occupation (HMO) changes on 1 October 2018. The new definition covers properties occupied by five or more people, comprising two or more separate households. Read more...
Energy efficiency – reassessment by T?
Wednesday, 12 September 2018
The Energy Efficiency (MEES) Regs mean it is no longer possible to grant new leases to properties with an EPC of F or G. Moreover, existing lettings of F and G properties will become unlawful from... Read more...
Knotweed – nuisance
Wednesday, 12 September 2018
Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now... Read more...
Procedure – expert witnesses
Wednesday, 12 September 2018
Expert witnesses must comply with court rules and related guidance appropriate to their area of expertise. New guidance for paediatric expert witnesses in family proceedings has now been issued. Read more...
Self-employed – or worker?
Wednesday, 12 September 2018
The Pimlico Plumbers case was seen as a victory for workers in the gig economy, with the Supreme Court looking at the reality of the relationship (rather than the legal labels attached). So, what... Read more...
Offences – mens rea
Wednesday, 12 September 2018
This was a pre-trial appeal of a ruling at a preparatory hearing. The two appellants (A) faced charges under s17 Terrorism Act 2000 of sending money overseas, or arranging to do so, knowing or having... Read more...

Resources

IAG International
In House Lawyer
Join the IBA now!
MSI Global Alliance
www.totallylegal.com