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Japanese Knotweed – who is liable for what?

June 2018 - Issue 106

Japanese knotweed is a rapidly-growing weed with reddish, bamboo-like stems appearing in early summer. It can grow up to around ten centimetres a day, with its roots reaching seven meters underground and its stems reaching three meters tall. Its rapid and extensive growth supresses other plant life, and causes significant damage to buildings and infrastructure. Over 6000 areas within the UK have been identified as containing this weed, and thus it is essential to be aware of how to identify it, how to deal with it and what the law says about it.

The most effective way to identify Japanese knotweed is to get a specialist’s determination. Although this weed has distinguishing characteristics, including purple flecks on the canes and heart-shaped leaves, it can often be confused with other plants, such as the Russian vine and the Himalayan honeysuckle.

Once Japanese knotweed has been identified, it is essential that steps are taken to deal with it quickly. Attempting to remove Japanese knotweed yourself is not recommended; not only will eradication prove to be a huge task, its disposal is restricted as it is included as ‘controlled waste’ under the Environmental Protection Act 1990. As such, specialist contractors should be used who are registered waste carriers. The PCA Invasive Weed Control Group (IWCG) was set up by the Royal Institution of Chartered Surveyors (RICS) and the Property Care Association (PCA) which provides a list of accredited contractors and consultants.

Sellers of properties are required by law to disclose information regarding whether a property is, or has been, affected by Japanese knotweed. This is, however, not the case for developers or builders, and as such a buyer should ensure they request that their solicitor makes specific enquiries about the presence of the weed. Furthermore, a survey should always be undertaken, which should include gardens of the adjoining properties if possible.

Taking fast action once the weed has been identified is essential in avoiding a claim from an adjoining land owner, not only for the cost of removal, but in addition, for the potential decrease in property value. These issues have been considered recently in the Courts, with one particular case seeing Network Rail found liable for damages for the cost of treatment, loss of amenity and interference with quiet enjoyment of property and for diminution in value of the properties (Waistell v Network Rail Infrastructure Ltd and Williams v Network Rail Infrastructure Ltd (2017)). Whilst Network Rail is appealing the decision, this case might demonstrate the beginning of a line of litigation in which this tenacious weed will be the focus.  Pending further case law developments, it is worth remembering that under the Wildlife and Countryside Act 1981, it is an offence to ‘plant or otherwise cause to grow in the wild’ any species on Section 9 of the act – which includes a couple of closely related plant species, Giant Knotweed and the hybrid of the two.

Contact a member of our specialist team of experts if you need to know more.

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