By Eric King-
The Court of Appeal has upheld an earlier award in 2015 of £10,500 damages to neighbours Stephen Williams and Robin Waistell, who owned adjoining semi-detached bungalows in South Wales.
The case is one of hundred others waiting, according to Lincolnshire Firm JMP Solicitors couple issued private nuisance claims in 2015 against Network Rail, arguing that the Japanese knotweed on its land encroached on their properties and interfered with their quiet enjoyment of, and Causing a loss of amenity in respect of, their properties by reducing their market value. Knotweed is notorious for its fast growth, through its underground roots or rhizomes.
It can block drains, grow between slabs of concrete drives, disrupt brick paving, undermine garden walls, and overwhelm outbuildings and conservatories. It also difficult to eradicate.The recorder in the Cardiff County Court had concluded that Network Rail’s breach of duty had caused a continuing nuisance and damage. The Court of Appeal today upheld that judgement, but gave different reasons for upholding it., in a judgement published today, upheld the recorder’s February 2017 decision – but for different reasons.
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Sir Terence Etherton, master of the rolls, said the former judge or recorder was wrong in principle to conclude that the presence of knotweed on Network Rail’s land within seven metres of the claimants’ properties was an actionable nuisance ‘simply because it diminished the market value of the claimants’ respective properties. Lenders are usually extremely cautious to lend money once knutweed comes into the equation. However, judge Etherton said the purpose of the tort of nuisance ‘is not to protect the value of the property as an investment or a financial asset’. The critical issue in relation to the knutweed is the owners ability to use and enjoy the land.’
THE REPORT
Sir Terrence Etherton said in his judgement:”The RICS paper describes Japanese knotweed as a hardy bamboo-like perennial plantwhich grows quickly and strongly and spreads through its underground roots or rhizomes. Rhizomes are similar in their effects to roots, being underground stems which
themselves produce fine, white, hair-like roots. Its thick clumps and stands can quickly grow to a height of over two metres (at para 2.1.1). and knotweed can affect drains, patios, paths,drives, boundaries, boundary walls, retaining walls, outbuildings, conservatories and gardens. The point the drive as getting at was that interference with the quiet enjoyment of the owners land was enough to award damages to the complainants
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knutweed
A published policy of the Council of Mortgage Lenders (“the CML”) confirms that Japanese knotweed can affect the valuation of a property, and that high treatment costs would be a problem for home owners who are affected, but can’t afford the treatment costs. Valuers who inspect property for mortgage purposes are instructed to report the presence of knotweed on their property. The judge stated that where the presence of nutweed has posed any ”blight on it so that it is no longer the valuable asset it once was”,that would affect the quiet enjoyment of the claimants respective properties. His insistence that the other judge was wrong means that the devaluing of a property due to the presence of knut weed cannot be the basis of a claim.
Following the ruling, a Network Rail spokesperson said: ‘As many gardeners know, Japanese knotweed is invasive and requires several years of treatment to remove. Once identified, Japanese knotweed growing on our land is entered into a treatment programme. We will continue with this established regime, which complies with legislation and helps us run a safe, reliable railway. Network Rail is aware of today’s ruling by the Court of Appeal and is considering its implications.’
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