Emily Bourne, Trainee Legal Executive in our residential conveyancing team talks about the recent case against Network Rail due to overgrown knotweed.
On 3rd July 2018 the Court of Appeal heard the case between Network Rail and a Mr Williams and a Mr Waistell. The Appeal was brought by Network Rail after the Cardiff County Court found in favour of Mr Williams and Mr Waistell in respect of their claims of private nuisance against Network Rail who allowed Japanese knotweed to grow on their land which was adjacent to the properties owned by Messrs Williams and Waistell.
Japanese knotweed itself is a hardy bamboo-like plant that is strong and grows quickly spreading through its underground roots or rhizomes. Both the Royal Institution of Chartered Surveyors (RICS) and the Environment Agency have published papers regarding Japanese Knotweed and comment on its ability to affect drains, patios, boundary walls etc. The eradication of Japanese Knotweed must be carried out by licensed organisations and entails a long and complex treatment process.
Mr Williams and Mr Waistell were the owners of two adjoining semi-detached bungalows in Maesteg, South Wales with Network Rail owning the land immediately behind their properties. On Network Rail’s land was a large clump of Japanese Knotweed which all the parties agreed had been there for at least 50 years. Messrs Williams and Waistell brought claims in private nuisance against Network Rail on the basis that the Japanese Knotweed had encroached on their properties and interfered with their quiet enjoyment of their properties.
At the initial trial the Judge found that whilst the Japanese Knotweed had encroached on to the properties no physical damage had actually been caused but when considering the ‘interference of quiet enjoyment’ element of the claim the Judge held that whilst physically there was no loss because of the minimal amount that the Japanese Knotweed encroached onto the properties, Williams and Waistell had suffered the loss of quiet enjoyment.
The Court’s reasoning was that the amenity value of a property includes the ability to dispose of it at a proper value. This combined with the fact Williams and Waistell had to live with the concerns and consequences of having Japanese Knotweed on their land amounted to a loss of quiet enjoyment. The Court did not grant an injunction compelling Network Rail to treat the Japanese Knotweed but did award compensation to both Williams and Waistell.
The Court of Appeal agreed with the Trial Judge’s decision but on different grounds. The Appeal Judges said the Trial Judge was wrong to conclude a diminished market value was enough to amount to a loss of quiet enjoyment. Instead they held that due to the nature of Japanese Knotweed, the mere presence on Williams and Waistell’s land affected their quiet enjoyment because not only was there a risk of future physical damage but also it placed a burden on them to deal with the issue of removing and treating it.
Beware conveyancers when completing the property information form to ensure the question on knotweed is answered accurately.