Mr Williams and Mr Waistell, two neighbouring property owners in South Wales brought claims against Network Rail for common nuisance when one of them could not sell his home due to the presence of Japanese Knotweed.
Japanese Knotweed had come from adjoining Network Rail land where it had existed for around 50 years. Roots had spread underneath the bungalows but had not yet caused any damage.
To establish their claim, the neighbours had to show that Network Rail had caused unlawful interference with the use and enjoyment of their land and the nuisance was substantial and unreasonable.
This case has been going on for 4 years.
Network Rail relied on two defences:
– They owned a lot of land, so the risk of knotweed was greater for them and they could not afford to deal with all the knotweed that affected their many neighbours;
– There was no significant physical damage caused to the bungalows so there was no case to answer
The Judge held that as no damage had been caused, the claim of encroachment by the roots was not actionable. However, there was an interference with the bungalows as the owners could not sell their property for full market value.
The Judge found that Network Rail had constructive knowledge of the potential impact of Japanese Knotweed because of 2012/2013 RICS and Property Care Association publication which highlighted the potential damage that knotweed could cause.
Network Rail were held liable in common law nuisance and was required to compensate the two owners:
– The cost of guarantee backed treatment programme to eradicate the knotweed
– Residual diminution in value of their respective properties post treatment
– General damages for loss of amenity and quiet enjoyment
WHAT DOES THIS MEAN?
Although this was only a county court judgment, it is significant as it permits landowners whose land might be blighted by knotweed from neighbouring owners to sue under common law nuisance, and to be able to do so before any physical damage has actually been caused.
It is now much more likely that the mere presence of knotweed close to a neighbour’s property will result in a successful claim for damages. Clients must be advised as landowners they will be held to account and there is a positive duty on them to ensure any Japanese Knotweed on their property is not preventing neighbouring sales for market value.
It is currently unknown whether Network Rail will challenge the decision. If left unchallenged, they are left exposed to numerous claims from other affected property owners. If challenged, there remains a risk a higher court will uphold the decision against them.
Knotweed, of course, can be treated by chemicals and an eradication programme by specialist contractors.
Til next time