In a recent decision by the Court of Appeal on 3 July 2018 the court refused an appeal brought by Network Rail over damages awarded to two homeowners for the effect of Japanese Knotweed on their properties in South Wales. The decision has been hailed as a significant step for those who believe that Japanese Knotweed has encroached on their property from an outside source and that the owner of the land where the invasive species was first found should bear some responsibility for its effects.
Earlier last year Cardiff County Court ruled in favour Mr Stephen Williams and Mr Robin Waistell in a claim for ‘nuisance’ caused by Japanese Knotweed on neighbouring land belonging to Network Rail. The court awarded a sum to the claimants to reflect the costs of having the knotweed removed and their land treated and a further amount to reflect the devaluation in property value that they had suffered as a result of the knotweed’s presence on their property.
Network Rail sought to appeal the decision on two grounds. In essence, their argument was that the necessary legal test for ‘nuisance’ had not been satisfied as no physical damage had been caused to the claimants’ properties.
The Court of Appeal agreed with the County Court’s decision and sided with the claimants – albeit for different reasons.
The appeal court made clear that the ‘damage’ in this case was constituted by the negative impact the knotweed had on the claimants’ ability to use and enjoy their property, rather than any reduction in the value of their property it had caused. In short, the presence of Japanese Knotweed imposed an immediate burden on the owners of the land by making that land more difficult - and costly - to develop.
The case confirms the burden on owners of land where knotweed is present to not only prevent the encroachment of Japanese Knotweed onto neighbouring properties, but to take care to avoid interference with the use and enjoyment of neighbouring land as a result of the Japanese Knotweed. In future cases, it is likely that Network Rail and other landowners could be liable for hefty damages claims even though there has not yet been any physical damage to neighbouring property.