Encroaching Japanese Knotweed a private nuisance


Following a Court of Appeal ruling earlier this month, landowners could now claim damages if Japanese Knotweed has encroached on their land.

The case of Network Rail Infrastructure Ltd v Williams & Anor [2018] saw Network Rail lose an appeal over damages awarded to two homeowners after Japanese Knotweed growing on Network Rail’s land encroached on their land.

The Japanese Knotweed grew on an embankment on Network Rail’s land and had been present there for at least 50 years.

In 2015, the claimants brought claims in private nuisance on the basis that Japanese Knotweed growing on Network Rail’s land had caused damage to their properties. They both sought an injunction to require Network Rail to treat and eliminate the knotweed as well as damages.

The Court agreed that there was clearly encroachment onto the claimants’ land from the roots of the Japanese Knotweed extending below the properties, however, there was no physical damage to the properties or change in the soil structure. The claim was therefore on the basis of damage in the sense of interference with the claimants’ quiet enjoyment and also loss of amenity resulting from the presence of the Japanese Knotweed, which affected the claimants’ ability to sell at proper market value.

The diminution in value of the property coupled with living with concerns and the adverse consequences of a devalued property was enough to bring a claim in private nuisance.

The Court noted that once Network Rail had knowledge of the presence of the Japanese Knotweed on its land it had a duty to do all that was reasonable to prevent or minimise the interference with the adjoining landowners’ use and enjoyment of their properties.

Network Rail treated the Japanese Knotweed once in 2013 but this was unreasonable as a treatment plan is required to treat Japanese Knotweed and no further treatment followed after this.

Network Rail tried to argue that the claimants simply had to tolerate the Japanese Knotweed as the plant is widespread in the area and is part of the character and locality of the area. This argument was rejected.

The Court held that Network Rail’s breach of duty had caused a continuing nuisance and also damage. The reduced market value caused by the presence of the Japanese Knotweed was a continuing nuisance.

The Court did not consider an injunction to be an effective remedy as it was thought that this would be vague and uncertain. Instead, the claimants were each awarded damages.

Network Rail appealed but their appeal was unsuccessful.

This judgement recognises the burden imposed on landowners by the presence of Japanese Knotweed, the loss that landowners can suffer and that remedies should be available in such cases.

If you are affected by Japanese Knotweed our specialist Property teams can provide expert advice. You can contact us by calling 0161 941 4000 or by emailing lawyers@myerson.co.uk.

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