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Ground breaking decision may open floodgates
The cases of Waistell v Network Rail Infrastructure Limited and Williams v Network Rail Infrastructure Limited were recently heard by the County Court, which made a landmark decision that could pave the way for proximate nuisance claims nationwide.
The Court decided that it is an actionable private nuisance to have Japanese Knotweed growing within seven metres of a built structure on neighbouring land and there was no requirement for the plants roots to have encroached into the neighbour’s soil.
The Claimants, Mr Waistell and Mr Williams both owned properties neighbouring railway lines in South Wales. Both properties’ back walls abutted an access path which ran between the railway lines and the properties. Japanese Knotweed had spread from the railway embankment to the access path. At the time that the Claimants had bought their properties the Japanese Knotweed was established on the Defendant’s land.
The Claimants sought injunctions to prevent the growth and spread of the Japanese Knotweed as well as damages for the diminution of value in their respective properties – claiming that they were unable to sell their properties for their full market value as mortgage lenders were unwilling, or at least tentative, in granting mortgages for properties that are affected by Japanese Knotweed. Neither of the Claimants were alleging that the Japanese Knotweed had caused any damage to their properties.
The Claimants in both cases relied upon the substantial interference with their use and enjoyment of their land, as well as the encroachment of the plant’s roots onto their land as the legal basis for their respective claims.
The Court decided that the claims for encroachment could not be maintained as there was no physical damage caused to the properties. However, it did find that there was an actionable nuisance as the Japanese Knotweed interfered with the value of the properties and prevented the Claimants from selling their properties at their full market value. As such, the Claimants were awarded damages for the diminution in value to their properties caused by the proximate nuisance of the Japanese Knotweed in addition to damages to cover the cost of the treatment and removal of the Japanese Knotweed from the immediate proximity of their land.
This decision has potentially opened the floodgates for claims of proximate nuisance by property owners neighbouring Japanese Knotweed, placing a dangerous burden on property owners to properly manage and treat Japanese Knotweed on their properties to mitigate their position.
Going forward, home owners, businesses and smaller property owners should exercise exceptional caution as the ruling demonstrates that Japanese Knotweed need not be physically encroaching on a claimant’s property or even causing structural damage to give rise to a successful legal claim.
If you have any concerns or would like to speak to one of our team, please call 0113 220 6270 or email Laura Salvati.