Charles Lyndon had previously been successful in the Cardiff County Court on behalf of its client Mr Robin Waistell in bringing a claim against Network Rail for allowing Japanese Knotweed to prevent Mr Waistell from enjoying his property. Damages were awarded for the cost of treating the Japanese knotweed and for the residual diminution in value to Mr Waistell’s property.
Network Rail appealed the decision on a number of grounds including:
- that the mere presence of knotweed on their railway embankment was incapable of causing an actionable nuisance to neighbouring properties; and
- if it had encroached onto neighbouring property then the neighbouring property owner needed to prove that it had caused physical damage to the property before they would be liable to pay damages.
Rodger Burnett, a lawyer at Charles Lyndon who has represented Mr Waistell since 2014, argued that Network Rail were wrong in law. The appeal was heard in the Court of Appeal at the beginning of June 2018 and counsel for Mr Waistell, Mr Stephen Tromans QC, argued that the judge at first instance had taken too narrow a view of what constituted physical damage.
The Judgment of the Court of Appeal was handed down on 3rd July 2018 and Network Rail’s appeal was unanimously dismissed.
The Court of Appeal has ruled that the mere presence of knotweed in an adjoining property is not in itself capable of being an actionable nuisance unless it threatens to, encroach or has already encroached. Once it can be established that there has been encroachment then this will automatically amount to physical damage and an actionable nuisance which means a neighbouring property owner will be due compensation for the cost of treatment and the impact on the value of their property.
The Court of Appeal found that:
“As the RICS paper observed, any improvement or alteration of the property requiring the removal of contaminated soil would require disposal of the soil either on site or, more likely, off site by special, and probably expensive, procedures. For all those reasons, Japanese knotweed and its rhizomes can fairly be described, in the sense of the decided cases, as a “natural hazard”. They affect the owner’s ability fully to use and enjoy the land. They are a classic example of an interference with the amenity value of the land.”
This decision will be welcomed by many of Charles Lyndon’s clients as it confirms individuals’ entitlement to the cost of removing the knotweed and any residual diminution of value once we prove that the knotweed has encroached.
Rodger Burnett said of the ruling:
“This is a great result for Mr Waistell and homeowners up and down the country. For far too long landowners like Network Rail have paid scant regard to the impact that their failure to adequately treat Japanese knotweed has had on adjoining properties. Hopefully now organisations like Network Rail will take their responsibilities seriously and remove the knotweed on their properties.”
Charles Lyndon was assisted on this matter by barristers Stephen Tromans QC, Justine Thornton QC and Nicola Atkins; and experts Phlorum and Hardie Brack.
At Charles Lyndon our specialist Japanese knotweed lawyers will be happy to offer advice on the implications of this Judgment and can help you claim compensation for all types of Japanese knotweed legal issues. If you would like legal advice or to discuss a potential claim, please contact our specialist Japanese knotweed legal team by contacting Dorothea Antzoulatos or Donna Dewberry or email at [email protected] or by calling Charles Lyndon on 0207 172 1022.