Summary
In our latest episode of ‘Law behind the headlines’ Partner, Andrew Clarke, and Principal Associate, Rachael Fawcett, discuss how Japanese Knotweed is increasingly making sensationalist headlines in the mainstream media. This podcast looks at the nature of Japanese Knotweed itself, how it can result in claims, the legal principles involved and the value and assessment of such claims.
Transcript
Rachael Fawcett: Hello, and welcome to the latest law behind the headlines podcast. I'm Rachael Fawcett, a Principal Associate, forming part of the Weightmans' national environmental technical unit. I'm joined today by Andrew Clarke, Partner who heads up the unit. Hi, Andrew.
Andrew Clarke: Hi, Rachel.
Rachael: Today's topic that we're going to look at relates to Japanese Knotweed. So last month, a national newspaper reported the headline locals blast council after rampant 6 foot tall Japanese Knotweed, which has taken over a park, starts creeping towards our homes like a scene out of The Day of the Triffids.
Rachael: Just in the last week, another national newspaper ran a headline about a retired NHS consultant facing the prospect of losing her £1.1 million home after pursuing an unsuccessful claim relating to a Japanese Knotweed infestation. So what is it about Japanese Knotweed that creates such spectacular headlines? And what about the claims that relate to it? We'll discuss both of these aspects in today's podcast.
Rachael: So first and foremost, what is Japanese Knotweed? Well, Japanese knotweed is an invasive, non-native species of weed. It's believed that Japanese Knotweed arrived in the UK and around 1850, when a Japanese Knotweed plant was sent amongst other plants to Kew Gardens.
Rachael: From 1854, Japanese Knotweed started to be sold and distributed by nurseries, and by 1886 it became naturalised. It was popular because of its fast and dense growth and was viewed as an ornamental plant. Japanese Knotweed can be identified by its red bamboo like stems and green spade shaped leaves.
Rachael: Unfortunately, it quickly became obvious that Japanese Knotweed was having serious impacts and by 1985, warnings were being issued about the planting of Japanese Knotweed. It spreads quickly and it is known to cause damage to structures and substructures of buildings. It's also known to reduce the capacity of channels and flood defenses. It spreads through root growth as well as new growth from the plant stems and rhizome fragments.
Rachael: A new Japanese Knotweed can grow from rising fragments as small as 1 centimetre. The environmental agency described Japanese Knotweed as indisputably the UK's most aggressive, destructive and invasive plant source.
Rachael: Despite issues becoming known about the dangers of Japanese Knotweed in the early 1900s, it wasn't until 1981 that legislation was introduced to control the sale and spread of Japanese Knotweed.
Rachael: So, Japanese Knotweed is a common topic within the press and especially this year. Headlines are often sensationalist and dramatic and have the potential to create widespread fear of Japanese Knotweed. We've chosen to talk about two of the press coverage in a bit more detail to give an idea of the types of issues that are hitting the mainstream press.
Rachael: It's fair to say that these articles are related to outbreaks and possible legal claims from all over the country.
Rachael: The first article that we're going to work out deals with press coverage following a heat map tool of registered Japanese Knotweed infestations across the country being made available. The article was titled The worst exposed Japanese Knotweed hotspots in the UK and how to get rid of it and it stated that Japanese Knotweed was a lot more common in the UK than people may think and that it was costing the UK economy over £40 million a year.
Rachael: Bolton was revealed on part of the heatmap tool as the Japanese Knotweed capital of the UK in 2022, with the North West making up three of the top four most badly affected locations. Bristol came in second and St Helens came in third.
Rachael: The article also looked at a project that had been led to the year before in 2021 to analyse the economic impact of all of the UK's invasive species. And it found that in 1975 that since that point the plant had cost the UK economy, at least £41 million a year. The majority of that expenditure and impact from house devaluation and the cost of removing the infestation.
Rachael: The second article looks at press coverage relating to a specific claim, which is one of many such claims hitting the headlines at the moment. And maybe as a result of an impact from the heatmap tool being something that people are more aware of.
Rachael: The article referred to a claim for compensation that was brought against Croydon County Council after what was described as plants like monsters invading the garden of a private residential property adjoining a council property next door.
Rachael: The claimants in that claim told the press that she had heard about Japanese Knotweed but didn't really know what it was until her friend told her. She reports that the plant quickly took over a garden, that she did not feel safe as a result of its presence and avoided going out into her garden at all.
Rachael: The article states that she was paid more than £15,000 in compensation as a result of the Japanese Knotweed spreading into her garden. The council commented to the press that they were sorry that the Japanese Knotweed had spread onto the claimant's land and that they always tried to remove it as swiftly as possible once they were made aware of it. And in this case they were working hard to make sure it was properly removed.
Rachael: These two articles deal with how Japanese Knotweed can be portrayed in the press, both from a perspective of the areas that it's covering, as well as individual cases. There are lots of cases that are receiving press coverage at the moment.
Rachael: So Andrew, how can the presence of Japanese Knotweed manifest itself into claims?
Andrew: Well, it's important to remember there's no legal obligation to remove or report Japanese Knotweed if it's growing on your land or property. However, allowing it to spread or encroach can lead to both civil claims and a possible criminal offense.
Andrew: Encroachment is a spread of Japanese Knotweed from one property to another. The owner of a land or property with Japanese Knotweed present should make every effort to try and control the Knotweed and prevent it from spreading to neighbouring property or land.
Andrew: If the Japanese Knotweed is allowed to encroach, this opens the door for a possible claim in private nuisance.
Andrew: Such claims would commonly include allegations that the Knotweed has interfered with the quiet enjoyment or occupation of another's land.
Andrew: In one of the leading cases in relation to Japanese Knotweed, the Court of Appeal confirmed a potential liability can arise here, even before Japanese Knotweed has caused any physical damage to property, land or structures. So it's the mere presence of the rhizomes or the roots of the Japanese Knotweed on another's land. That's sufficient to allow a claim to succeed.
Andrew: Once a landowner is aware that Japanese Knotweed from his or her land has encroached onto another's land, he or she has a reasonable time in order to treat the Japanese Knotweed to eradicate it.
Andrew: Due to the very nature of the Japanese Knotweed, it can take many courses of treatment for it to be successfully treated and eradicated entirely. So the claims that we see related to Japanese Knotweed include issues related to the effects of the value on properties, as well as the costs of controlling or eradicating the Japanese Knotweed.
Andrew: Diminution in value claims can run to hundreds of thousands of pounds, especially when you're dealing with properties in London and the Southeast of England.
Andrew: We also see professional negligence claims related to Japanese Knotweed, where surveyors have failed to spot Japanese Knotweed upon a house purchase survey.
Andrew: Such claims will need to be supported by expert evidence confirming that a reasonably competent surveyor should or would have identified the presence of Japanese Knotweed when undertaking that survey.
Rachael: So we've seen in the press articles referred to earlier with numerous references as to the actual costs relating to Japanese Knotweed. So the article that we looked at related to the cost to the UK economy at £41 million a year. And then a claim for £15,000 in compensation. So where do these figures actually come from and what are the real costs of dealing with such claims?
Andrew: Well, the claims themselves are generally made up of the usual elements of special and general damages. And we'll look at the special damages elements first as they will form the largest part of most of these cases.
Andrew: So part of the claim cost will be the treatment costs to try and eradicate the Japanese Knotweed from an individual's land. And there's some discussion as to whether it's treatment versus excavation and removal — physical removal — of the Japanese Knotweed.
Andrew: When you're looking at treatment, invariably there'll be a need for more than one course of treatment, adding to the cost.
Andrew: In the alternative, the excavation of the area will generally be more expensive because it's so invasive and it can also cause issues on that person's land due to the simple fact that the plan would be to remove so much soil and parts of that garden.
Andrew: One of the largest elements of the claim is the diminution in value of a property affected by Japanese Knotweed, and claimants will produce an expert surveying report in order to demonstrate the difference in value to that property before the Japanese Knotweed and with the Japanese Knotweed present.
Andrew: In relation to individual items for special damages, you'll quite often see claims for damaged patio, fencing, walls, possibly furniture as well in a garden.
Andrew: Finally, looking at general damages, claimants are entitled for two general damages, for distress and inconvenience, and that's assessed on an annual basis until the nuisance ends.
Andrew: As a rough guide, that will be approximately £200 to £500 per claimant per annum.
Rachael: So are there any time restrictions for people bringing claims for Japanese Knotweed?
Andrew: Yeah, there are. So generally there's a six year limitation period to bring a claim for Japanese Knotweed and that's assessed from date of encroachment. But they can be a continuing nuisance, thereby extending the limitation clock. But if it is a continuing nuisance, then it's only the damage within a rolling six year period that would be recoverable here.
Rachael: So there's a lot of press coverage at the moment in terms of Japanese Knotweed and certainly we can look back over the years and it is something that does receive quite sensationalist headlines and there is an element of potential scaremongering in terms of what essentially is a plant. What do you make of the press coverage and claims? Are we seeing more claims? Are we expecting more claims? Is this more of a problem now than it has been previously?
Andrew: I think due to the publicity, we are seeing more claims as a result of that because there's much greater knowledge and understanding on the part of the general public about their property rights and what they can do if there is Japanese Knotweed.
Andrew: So it's clearly a growing area of concern for many owners of properties around the UK.
Andrew: That concerns probably not helped and perhaps is being driven to a large extent by the mainstream media and their somewhat sensationalist headlines. Ultimately, going back to these cases, these are nuisance cases and can be approached by applying the same legal principles that we would do in a normal nuisance type claim.
Andrew: Of course, Japanese Knotweed cases do have their own peculiarities and will be directed to a large extent by expert evidence. However, by understanding the Japanese Knotweed itself and the legal principles that underlie this area of law, you should be in the best position to deal with the claim in the event you're faced with one.
Rachael: That's great. Thank you so much for your time today, Andrew.
Andrew: Thank you.