Tying yourself in a knot(weed): Waistell v Network Rail Infrastructure Limited

A county court judge, Recorder Grubb, gave a judgment (Waistell v Network Rail Infrastructure Limited (2017) (County Court) (unreported)) in what is thought to be the first decided claim for damages arising from the existence of Japanese Knotweed on a neighbour’s land. Although it is not a binding decision, it could open the floodgates for a large number of other claims, if it is challenged in the higher courts and upheld.

What is Japanese Knotweed?

Japanese Knotweed (JKW) is a bamboo-like plant that is very strong and grows incredibly quickly. It can spread underground through its roots (or rhizomes). As it grows, JKW can cause damage to drains, paths and walls. Many mortgage lenders will not agree to lend against a property that is located within seven metres of JKW. This makes it very difficult for existing owners to sell their property. The seven metre radius was set down in a Royal Institution of Chartered Surveyors (RICS) Information Paper from 2012.

Due to the speed at which it grows, and its potential to cause damage, there is legislation in place to manage JKW. The Wildlife and Countryside Act 1981 makes planting it a criminal offence. Further, the Environmental Protection Act 1990 and the subsequent Environmental Protection Act (Duty of Care) Regulations 1991 categorise JKW as “controlled waste” and provide that a licence is required to deal with, treat, and dispose of it. Failure to obtain such a licence is also an offence. As such, the removal of JKW should be undertaken by a licensed person or agency. Inevitably, this will be expensive.

What damages can be claimed?

Japanese Knotweed can cause physical damage to property and so any claim for damages is likely to include:

• Costs of removing the JKW or an order requiring the defendant to remove it.
• Costs of any remedial works to the claimant’s property.
• Diminution in value due to the existence of JKW (due to the difficulty in selling).

In relation to damages in most nuisance claims, the claimant must have suffered some actual physical damage or an unreasonable interference with their property rights, which has caused the loss of enjoyment of their property or proprietary interest. The judge’s decision in Waistell introduces the possibility that a claim can be pursued even where no actual damage has been sustained.

The judge held that a claim based on an encroachment by the roots was not actionable unless actual damage had been caused. This re-affirmed the principle that a claimant needs to actually suffer some damage for a claim to be actionable. However, the judge did hold that the JKW interfered with Waistell’s property as he could not sell it for full market value; therefore, there was an actionable claim for nuisance. The judge explained that a nuisance could be proximate and did not require an actual encroachment from Network Rail Infrastructure Limited’s land onto Waistell’s land in order to succeed.

What are the implications of the decision in Waistell?

It could lead to a large number of other claims being pursued.

Network Rail Infrastructure owns property all over the country. Mr Waistell was not the only person to bring a claim against them. His neighbour, Mr Williams, also sought damages against the company. There are likely to be numerous instances where land owned by Network Rail Infrastructure, or indeed other large landowners, has many properties abutting its boundaries. If JKW has been left untreated, as it had been in this case, it is easy to see how the number of potential claimants could grow.

A group of claimants could pool knowledge and resources in order to pursue a claim against such a common defendant. The issues are likely to be similar for each claimant. Each claimant would have to be within seven metres of JKW, and claims will likely include an allegation that physical damage has been caused by JKW. There could also be claims for diminution in value, due to proximity to the JKW.

Such actions also have the benefit that all JKW could be addressed at once, rather than in a piecemeal fashion. This would reduce disruption and the risk of JKW spreading or re-growing.

This decision also paves the way for disputes between individual owners of neighbouring properties. These claims may be more difficult to identify, and are likely to have to be considered on a case-by-case basis. There are also likely to be fewer such cases, as JKW is unlikely to be as established in residential land as on land such as that of Network Rail Infrastructure Limited. Large landowners are also more likely to be able to have the resources to meet any claim (and the costs) than a single residential property owner.

Concluding thoughts

Waistell is not a binding authority, but it is easy to see how it could lead to more claims arising from JKW. Practitioners acting on any such claims will need carefully to consider issues, such as:

• What heads of claim can be pursued.
• How damages for those heads of claim are to be assessed.
• The need for experts.

In addition, when acting for defendants in such claims, consideration should be given to the legal requirements around treating and disposing of JKW, given the potential for prosecution.

For now, we will have to wait and see if Network Rail Infrastructure Limited decides to appeal Recorder Grubb’s decision. They are in a difficult position. If the decision is left unchallenged, even though it is not binding, it may well provide encouragement to affected property owners to bring similar claims. If they challenge the decision, they run the risk of a higher, authoritative court upholding the decision, potentially providing even greater encouragement. I will be taking a keen interest in how Network Rail Infrastructure Limited chooses to tackle this particularly knotty problem.

The article was first published in the Thomson Reuters magazine, April 2017.