Williams & Waistell v Network Rail Infrastructure Ltd

 

Japanese Knotweed (“JKW”) was introduced to the UK in the mid-19th Century as it was popular with landscapers because of its ability to grow quickly and form dense screens. But it was soon realised it was a pernicious weed that out-competed other flora – yet it was still sold at garden nurseries until the 1930s.

Since the Wildlife and Countryside Act 1981, it is a criminal offence to plant or cause JKW to grow.

In Williams & Waistell v Network Rail Infrastructure Ltd (2nd February 2017) two adjoining bungalow owners brought claims against Network Rail for allowing JKR roots and shoots on their land to spread under their bungalows. They claimed an injunction requiring the removal/treatment of the JKR and damages. Their claims were based on private nuisance i.e. unreasonable interference with their land.

The bungalows are in Maesteg in South Wales. No 1 cost £49,500 in 2003 and No 2 cost £65,000 in 2012.

The bungalows are at the top of an embankment leading down to the railway line below. Network Rail own the land up to their boundaries.

The JKW has been present on the embankment for at least 50 years but complaint was not actually made until 2013. However, Network Rail were aware some years before of the danger posed to the bungalows by the JKW on the embankment.

JKW is regarded as a threat to any property if it comes within 7 metres although it may now be the case that this is somewhat excessive and it has to take root within 2/3 metres to really spread and cause damage. It is a particular danger to drains, paving, garden walls, outbuildings, and other plants. Soil contaminated by JKW has to be removed under licence.

Interestingly, the JKW has not damaged the foundations or any other part of the bungalows as yet. But it has affected their marketability as properties with JKW roots and shoots under their foundations are perceived to be worth less. They are stigmatised. Mortgage lenders hesitate to lend on such properties.

The issues which the Court had to deal with, and its decision, are as follows:

Did the Claimants have to establish physical damage to succeed with a claim for nuisance based on encroachment of JKW under their properties?

The Court held they had to show physical damage and there was none. So their claims in this respect failed.

Was the presence of JKW sufficient to found a claim in nuisance for serious interference with the Claimants’ quiet enjoyment and use of their properties?

The Court said yes. Damages can be awarded for stigma and diminution in value.

Was Network Rail in breach of duty in not dealing reasonably with the JKW?

The Court held they were. Although there was only a measured duty which involves doing what is reasonable in the circumstances, and account can be taken of resources and other priorities, it was plan that Network Rail had delayed spraying and otherwise treating the JKW for some years after they knew it was causing issues to the neighbouring owners. It is interesting to read how slow Network Rail are in dealing with any management issue that does not actually affect rail safety.

Did Network Rail have a prescriptive right to cause this nuisance given the JKW had been present for 50 years or more?

A prescriptive right to cause a nuisance can be established by long use. Ministry of Sound claimed this re noise from their club. But, the claim failed here as there was no evidence it had caused a nuisance for over 20 years.

What was the appropriate remedy?

The Court held, and the parties agreed, that damages was the appropriate remedy. The Court awarded each Claimant £10,000 for diminution in value and £4,320 for treating the JKR on their land to prevent further ingress. It also awarded £350 per year as general damages for loss of amenity.

NB: The case lasted 3 days in Court and involved detailed evidence from JKW experts and property valuers. Counsel acted on both sides. The legal costs must be many times the damages awarded but, presumably, Network Rail were using this as a test case?

Jonathan Ross
Forsters LLP

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