No “weed-ling” out of this one
Last year I wrote about a case where individuals whose land had been encroached upon by the invasive species known as Japanese Knotweed (“JKW”) were granted damages (www.cripps.co.uk/real-estate/knot-my-problem). This was on the basis there had been a diminution in value of the properties, although there had not yet been any physical damage.
On 3 July 2018, the Court of Appeal upheld the first instance decision, but on different grounds (Network Rail Infrastructure Ltd v (1) Williams (2) Waistell  EWCA Civ 1514).
Protection of the use and enjoyment of land
The Court of Appeal held that the first instance judge had been wrong in principle to find that the presence of JKW was an actionable nuisance on the basis it diminished the market value of the properties. It found the purpose of the tort of nuisance is to protect the use and enjoyment of land and the first instance decision extended it to cover pure economic loss, which would have represented a “radical reformulation of the purpose and scope of the tort”.
The Court still found that the claimants were entitled to damages but this time on the basis that JKW grows quickly and spreads through underground roots so it posed a risk of future physical damage and its presence would diminish the ability of the landowners to enjoy the amenity and utility of the land. The claimants would have an increased difficulty and cost in developing the land (even though there was no evidence of any development here), which was an immediate burden and their use and enjoyment of land was affected. Coupled with National Rail’s knowledge of the presence and risk of JKW, there was an actionable nuisance.
The Court of Appeal then went a step further, stating that a claimant should be able to obtain a final mandatory injunction to compel treatment of JKW even where there has been no physical damage to the property. The presence of the roots alone was sufficient for this.
Impact of this decision
Permission to appeal was refused by the Court of Appeal but Network Rail can still petition the Supreme Court directly, so this may not be over yet.
In the meantime, this is an important ruling as potentially thousands of property owners will now have an actionable claim for nuisance, resulting in an award for damages and an injunction against neighbours that have knowledge of JKW originating on their land and fail to deal with it, even when no physical damage has been caused.