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Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world

Being Tied Up In Knot(weed)! by Sarah Shemmings

July 17, 2018 | Silver Shemmings

The Court of Appeal handed down a judgment yesterday on liability for encroaching Japanese Knotweed. This is an important judgment for landowners and their insurers.

Japanese Knotweed is a pernicious weed that spreads quickly and does not let buildings or concrete get in its way. Knotweed is known to cause damage to building foundations including drain runs. It is a weed that is difficult to eradicate. As such, any property that is found to have knotweed growing within its boundaries or nearby, is likely to suffer some form of loss of value.

In this case, 2 landowners sued Network Rail for private nuisance on the basis that the Japanese knotweed which was growing on the land owned by Network Rail adjacent to their properties had caused damage to their properties. The claimants sought an injunction to force Network Rail to treat and get rid of the knotweed.

The first court decided that there had been encroachment onto the claimants’ properties but that there had been no physical damage to the properties and the first instance judge held that the presence of knotweed whilst resulting in a loss of value did not constitute “damage” which is a necessary component to prove in a nuisance claim. However, the judge did find that the presence of knotweed “in close proximity to the boundary of the claimants’ respective properties was a sufficiently serious interference with the quiet enjoyment or amenity value of their properties as to constitute an actionable nuisance” in that the knotweed “affected their ability to sell their properties at a proper market value”. The judge refused the injunction but did award damages.

Network Rail appealed this judgment in respect of the award of damages for loss in value of the properties on the basis that this was pure economic loss which was not recoverable and, further that the judge was wrong to find that there was a causal link between Network Rail’s breach of duty and the diminution in value of the properties.

A number of judgments were reviewed by the Court of Appeal, including looking at the rights of landowners and interference with rights over land.

The Court of Appeal said that private nuisance was a “violation of real property rights” and which can include interference with an easement or the right to enjoy and use of one’s land. Whilst one usually has to prove there has been “damage”, in respect of interference with the “amenity” of one’s land, physical damage is not necessary to “complete the cause of action” and indeed, “nuisance may be caused by inaction or omission as well as by some positive activity”.

The Court of Appeal went onto to say that 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 owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land”. The Court of Appeal further said that:

“Japanese knotweed was rightly described… as a pernicious weed. It does not only carry the risk of future physical damage to buildings, structures and installations on the land. Its presence, and indeed the mere presence of its rhizomes, imposes an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop, and in the cost of developing, the land, should the owner wish to do so. As the RICS paper observed, any improvement or alteration of the property requiring the removal of contaminated soil would require disposal of the soil either on site or, more likely, off site by special, and probably expensive, procedures. For all those reasons, Japanese knotweed and its rhizomes can fairly be described, in the sense of the decided cases, as a “natural hazard”. They affect the owner’s ability fully to use and enjoy the land. They are a classic example of an interference with the amenity value of the land.

 Network Rail was aware of presence of Japanese knotweed on its land behind the claimants’ properties in 2013 and as such should have been aware of the risk of damage or loss of amenity but it failed to “reasonably” to prevent the spread of the weed.

The Court of Appeal therefore upheld the judgment at first instance (although for different reasons) and found that Network Rail was responsible for the damage caused by the Japanese Knotweed encroaching onto the Claimants’ land, but, and here is the catch, there can be no claim merely for loss of value of one’s house just because knotweed has been found nearby.

Whether Network Rail will appeal to the Supreme Court is a matter of conjecture but for the moment, Network Rail must be facing some hefty clean up bills from aggrieved landowners.

Author: Sarah Shemmings has over 20 years’ experience in dealing with construction, professional negligence, environmental and general litigation claims for contractors, sub- contractors, construction professionals, employers, property developers, and landlords

​Sarah was responsible for acting for Higgins Construction plc in the leading judgment from the Supreme Court in the case of Aspect Contract (Asbestos) Ltd v Higgins Construction PLC [2015] UKSC 38

She was also the lead partner in the leading environmental case of Cambridge Water Company Ltd v Eastern Counties Leather plc [1994] 2 AC 264 relating to the House of Lords judgment on historic water pollution

At Silver Shemmings Ash, we provide seminars and training alongside our core activities in contentious and non-contentious matters, the purpose if these is to facilitate a greater knowledge and understanding of construction and property law. There remains a considered lack of training in such areas for companies and one to which we look to address.

 

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