Knotweed nuisance

Japanese Knotweed is encroaching from my neighbour's land...

The ease by which Japanese Knotweed can be spread, the extent of its underground root (rhizome) system and the damage it can cause are well known in environmental circles. However, less well appreciated certainly by the general public are the legal implications of knotweed nuisance which Japanese knotweed brings with it.

The law surrounding Japanese Knotweed is found in a variety of places. Section 14 of the Wildlife and Countryside Act 1981 makes it an offence to plant or otherwise cause knotweed to grow in the wild. However, as stated in the Environment Agency Knotweed Code of Practice “it is not an offence to have Knotweed on your land and it is not a notifiable weed”. It is generally thought that private land and in particular gardens do not come within the definition of wild.

Under the Environmental Protection Act 1990 all knotweed material (and soil containing knotweed) is classed as controlled waste and must be disposed of at a licensed landfill site under codes of practice. There are also powers under the Town and Country Planning Act which empower local authorities to require landowners to treat the land if it detracts from local amenities and that could include situations where knotweed is present on the land.

The Town and Country Planning Act is often used by local planning authorities by way of planning conditions to force developers to treat sites infested with knotweed. These and other statutory material give rise to potential criminal prosecutions, however, as between private landowners where knotweed moves from one property to another the relevant law is that of private nuisance.

A private nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land. Nuisance extends to include encroachment on to neighbouring land such as in the case of overhanging tree branches and tree roots which cross a boundary.

An individual/organisation must be given the opportunity to deal with knotweed nuisance that he/it creates. It is therefore important that a landowner/occupier puts his neighbour on notice in writing as soon as encroachment occurs and states what action he requires the landowner to take and by when. In the case of Japanese Knotweed it is almost certainly going to be the case that a landowner/occupier will require his neighbour to effectively treat the knotweed not only on the neighbour’s land, but also on his own property in order to solve the problem. In the event of a neighbour failing to cooperate legal action may be commenced seeking various remedies including damages equating to the cost of a treatment programme and guarantee; in exceptional cases the diminution in value of the property and injunctions forcing the neighbour to carry out specific methods of treatment.

The courts have indicated in the past that they are likely to be guided by the cases relating to knotweed nuisance and encroaching tree roots. Previously a court has ordered a council to treat a one metre strip of the plant along the boundary between the properties for three years and to install a reinforced concrete boundary. The council was also ordered to contribute towards the owner’s costs of bringing the action. It is possible that a more strict form of liability may be imposed by the court, such that any individual/organisation who allows the knotweed to spread onto neighbouring land could be strictly liable for all and any damage caused by such encroachment; however, this is as yet untested.

An individual/organisation can be liable for allowing nuisance to continue even if he/it did not create it and came after it was established. Therefore a purchaser of land should always have the land properly surveyed before buying because although he would not be responsible for past damage he will be responsible for continuing damage. Equally a seller could remain liable for damage caused prior to the date of sale and further, guilty of a misrepresentation to a buyer if he has not correctly responded to the question regarding knotweed in the seller’s questionnaire (TA6).

If you believe that you are entitled to compensation in relation to a knotweed issue or knotweed nuisance in particular if you believe that the source of the knotweed is from property belonging to Network Rail or another corporation, a local council or local housing association, or utility company; or you a unsure as to your legal position call us now for an initial consultation with a qualified lawyer.

To find out more about other possible claims you may have, click here.

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