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Published by: Strettons

In a recent Court of Appeal ruling, a challenge by Network Rail over a private nuisance claim over Japanese Knotweed was dismissed.

Two neighbours who own adjoining semi-detached bungalows in South Wales issued a private nuisance claim in 2015 against Network Rail, arguing that the Japanese knotweed on its land encroached on their property, interfering with their quiet enjoyment and causing a loss of amenity in respect of their properties by reducing their market value.

While Network Rail had sought to challenge this ruling in the Court of Appeal, the original judgement was upheld, although the reasons given were different to the original judgement. The principle that the presence of Knotweed being within seven metres of the neighbouring land was not considered to be a nuisance, it was simply the diminished market value.

It was held that the continuously growing roots of the plant develop quickly underground and these represent a natural hazard affecting the owner's ability to use and enjoy the land fully. This was a classic example of an interference with the amenity value of the land.

The solicitors representing the Claimant highlighted the Law Society's TA6 property information form which requires sellers to state whether the property is affected by Japanese knotweed. If this is answered untruthfully "no" or "Don't know", the buyer can comeback and either rescind the contract or get damages as the property is now worth a lot less than they thought.

This judgement should put all owners of land infected with knotweed on notice to take proper action to ensure their knotweed does not encroach onto or threaten other property.

Those that continue to ignore the effects of their inaction and affect their neighbour's enjoyment of their property are now forewarned. The law is clear and substantial damages can be awarded against them. It is also worth pointing out that a defence in nuisance is that all reasonable measures are being taken to mitigate the nuisance.

Knotweed is notorious for its fast growth. It can block drains, grow between slabs of concrete drives, disrupt brick paving, undermine garden walls and overwhelm outbuildings and conservatories. It can also be difficult to eradicate.

The judgement will have significant implications for owners of land affected by Japanese knotweed. It provides the legal profession with greater clarity, which is likely to increase the number of genuine claims and settlement of those not worth contesting.

Our property management team have experience in dealing with these situations and can advise on your options for minimising costs.

Contact Simon Tilsiter on 020 8509 4430 or simon.tilsiter@strettons.co.uk for more information.