In Network Rail Infrastructure Ltd v Williams & Anor, the Court of Appeal held that Japanese Knotweed and its underground roots or rhizomes are a ‘natural hazard’ which can affect a property owner’s ability to fully use and enjoy the land.
Knotweed is a hardy bamboo-like perennial which spreads rapidly growing to a height of over 2 metres. Knotweed presents a risk if it is within 7 metres of a structure as it spreads laterally underground. It can affect drains, patios, paths, drives, walls, outbuildings and conservatories and can cause considerable damage to all of these. Its removal can only be carried out by licensed organisations and requires, according to the RICS practice note, ‘steely determination.’ Furthermore, these organisations are only permitted to remove any contaminated soil to specific treatment sites which increase the cost considerably.
When selling a property affected by knotweed a seller is required to disclose its presence. This of course will mean that finding a potential buyer can be difficult, particularly as mortgage companies have restrictions on loans where knotweed is present and will often decline to extend loans altogether. These issues can therefore lead to a lower valuation of any property which can leave sellers in a very difficult financial position.
In this case 2 property owners commenced proceedings against Network Rail (NR) for knotweed which was encroaching from NR land to theirs. The 2 owners sought damages for the presence of the knotweed and an injunction requiring NR to remove it. The property owners succeeded in their claims with the judge finding that although the knotweed did not damage their property it did cause concern and a loss of amenity which amounted to a breach of quite enjoyment. The 2 claimants were awarded £10,500 and £10,000 and an injunction was granted requiring NR to remove the knotweed.
NR appealed the decision claiming that knotweed was prevalent in the area and in the absence of any damage to property there was no liability. The Court of Appeal still found NR liable but for a different reason. The Court of Appeal did not agree with the way in which the original court had come to its decision but upheld it anyway. It found that the very existence of knotweed on land caused damage even where there was no structural damage evident as it caused contamination of the soil. Accordingly, NR were liable because they permitted knotweed to spread from their land to that of the 2 claimants leading to damage to that land.
For homeowners this is no doubt a welcome decision especially for those with properties near train lines where knotweed is a common problem. However, given the potential claims that NR may face it is possible that this decision may be appealed once again.
