The (Japanese) knotty issue
The Court of Appeal recently decided a case concerning two property owners whose houses adjoined land owned by Network Rail. The land in question adjoined an access path leading to an embankment, dropping down to an active trainline. The rear walls of each of the owners’ properties immediately abutted the access path owned by Network Rail. The owners of the two properties brought claims against Network Rail, alleging that Network Rail had caused damage to their properties and they were entitled to a sum of damages under the claim for private nuisance, on the basis that Japanese knotweed was growing on Network Rail’s land.
The initial decision in Cardiff County Court found that the knotweed on Network Rail’s land had caused a loss of enjoyment to the property and awarded damages to the parties for the reduction in the property value, as well as damages for the costs of removing and disposing of the knotweed.
Network Rail appealed the decision on two grounds and all the parties headed to the Court of Appeal.
The Court of Appeal found that private nuisance should be broken down into three distinct categories:
a) Nuisance by encroachment;
b) Physical injury;
c) Interference with quiet enjoyment.
The Court noted that it is generally accepted that damage (in the physical sense) is a necessary requirement for a nuisance claim. However, the Court of Appeal was also willing to accept that in previous case law and claims in nuisance, damage was elastic value, which is not necessarily easy to be definitive about.
The Court of Appeal found that the mere existence of Japanese knotweed on an adjoining property would not automatically qualify as an actionable nuisance, simply because there was a loss suffered (the reduction in the value of the adjoining property), as that was wrong in principle.
The Court of Appeal, however, did conclude that once encroachment had been confirmed and taken place, that act alone would automatically amount to physical damage, no matter whether the property and the structure thereof was actually physically damaged and that would therefore give rise to a right of compensation.
The Court of Appeal decision set a precedent in establishing that an owner of land who has allowed or failed to prevent Japanese knotweed from spreading into or close to adjoining properties may be held liable for private nuisance. The Court of Appeal further confirmed that definitive physical damage to a property is not automatically a prerequisite for a private nuisance claim. In this case, the simple presence of knotweed was sufficient to interfere with the Claimants’ enjoyment of their properties and as a result of which, they were entitled to damage for the diminution in the value of their property.
This decision is particularly important, given that residential property owners are asked specifically to confirm or deny whether any such Japanese knotweed has been found or has affected your property or a neighbouring property. It is therefore important to ensure that all information given in the property information form is accurate to the best of your knowledge, and if not, you should seek advice from your conveyancer.
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