On the 3rd July 2018, the Court of Appeal handed down its judgment in the case of Williams & Waistell v Network Rail Infrastructure Ltd  EWCA Civ 1514, and in doing so set a landmark legal precedent for the control of Japanese knotweed.
Decision of the County Court
The County Court judgment was the result of private nuisance claims filed in 2015 against Network Rail by Mr Robin Waistell and Mr Stephen Williams. Neighbours Waistell and Williams, who own adjoining semi-detached bungalows in Maesteg, south Wales, had argued that Japanese knotweed on neighbouring Network Rail land was causing an actionable private nuisance by (1) encroaching upon their properties; and (2) by being within seven metres of their properties, interfering with their quiet enjoyment of, and causing a loss of amenity in respect of, their properties by reducing their market value.
The County Court found in favour of the Claimants. It was held that they had no claim on the basis of encroachment as there had been no physical damage to the property but that the mere presence of Japanese knotweed within 7 metres of their properties was sufficient to constitute private nuisance. The County Court awarded the Claimants compensation for the cost of treatment of the Japanese knotweed and the residual diminution in value to the properties.
Grounds for Appeal
Network Rail appealed the decision on a few grounds including that the presence of knotweed on Network Rail’s land within seven metres of the claimants’ properties was incapable of causing an actionable nuisance merely because it diminished the market value of the claimants’ respective properties.
The Claimants cross appealed on the basis that as the knotweed had encroached onto a neighbouring property that owner did not need to prove that the knotweed had caused physical damage to the property for the encroachment to constitute a private nuisance.
Dismissal of Appeal
The Court of Appeal dismissed Network Rail’s appeal and upheld in most part the ruling made in February 2017 at Cardiff County Court, albeit on different grounds.
Interference with Land’s Amenity Value
The Court of Appeal held that the Claimants could not claim for private nuisance merely because of the diminution in the properties’ market value due to Japanese knotweed within 7 metres of the property. This is because the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset, its purpose is to protect the land’s intangible amenity value which concerns landowners’ use and enjoyment of the land.
Therefore, the Court of Appeal judgement found that the mere presence of knotweed in an adjoining property is not in itself capable of being an actionable nuisance, unless it threatens to encroach, or has already encroached. However, the Court of Appeal held that once encroachment or imminent encroachment is established damage is assumed and claimants can succeed in their claims for private nuisance and be compensated for both the cost of treatment and the loss of amenity caused by the Japanese knotweed.
The Court of Appeal found that the loss of amenity value was the same as the diminution in value found by the County Court and upheld the award. The result of this case has far reaching consequences; it solidifies the fact that Japanese knotweed is an actionable nuisance for which damages can be claimed. This means its presence imposes an immediate burden on landowners who not only face the existing difficulties and expense of eradicating Japanese knotweed from the affected land, but now also face the concern of being liable to others if their knotweed threatens to encroach, or has already encroached, onto another’s land.
Charles Lyndon Solicitors Comment
Charles Lyndon Solicitors, who acted for Mr Waistell said “hopefully now organisations like Network Rail will take their responsibilities seriously and remove the knotweed on their properties. As one of the few firms specialising in Japanese knotweed, we have successfully represented a huge number of clients affected by Japanese knotweed and ensured they are compensated for the cost of treating the Japanese knotweed and the impact of it on the value of their properties.”
Japanese Knotweed Ltd undertook a Japanese knotweed property risk survey for the Waistell private nuisance claim and work closely with Charles Lyndon and other solicitors involved in knotweed claims.
Expert Help is at Hand
Here, at Japanese Knotweed Ltd, we provide expert knotweed consultancy and contracting, delivering surveys, treatment and excavation programmes throughout the UK. We have an in-house team able to help and support with knotweed legal issues. If you require Part 35 compliant legal knotweed reports with a detailed knotweed remediation plan, please contact us on 0333 2414 413 or email firstname.lastname@example.org or visit japaneseknotweed.co.uk