Japanese Knotweed in the news again

Previously there was no actionable claim in nuisance for any loss in property value caused by the presence of Japanese Knotweed on land belonging to someone else.

However, earlier this month, the Court of Appeal, changed that.

In the case of Davies v Bridgend County Borough Council, the Court determined that if the value of a property was lowered due to Japanese Knotweed encroaching, and being an interference with quiet enjoyment or amenity, then a claim for damages is now available.

Liz Shaw, director and property litigation solicitor looks at two different cases on the issue – one regarding seller’s duties regarding the plant and the other regarding failure to remove it.

This article covers:

• What is Japanese Knotweed?
• Seller’s duties with Japanese Knotweed - Downing v Henderson case
• Failure to remove it - Davies v Bridgend County Borough Council 2023
• What to do next?

What is Japanese Knotweed?

Japanese knotweed (Knotweed) is an invasive non-native plant which can cause damage to buildings and biodiversity. It can be difficult, and costly, to remove and affects the value and insurability of property.

Seller’s duties Japanese Knotweed – the Downing v Henderson case

It can be an expensive mistake not to check if you have Japanese Knotweed growing in your garden when selling a property.

Sellers have duties on sale to give the correct information otherwise it can be misrepresentation.

When completing the Sellers Property Information Form (TA6), if a Seller is unsure whether or not the property is, or has ever been, affected by Japanese Knotweed, they should tick “Not known”.

A Seller should only answer “No” if they are certain there is no Japanese Knotweed on the property.  And if the situation changes during the conveyancing transaction, then Sellers should inform their Solicitors, so the Buyer can be updated at all points.

In the case of Downing v Henderson, Jonathan Downing bought a £700,000 house in London from Jeremy Henderson.  After moving in, Mr Downing discovered Japanese Knotweed growing in the rear garden, and brought proceedings against Mr Henderson saying he had misrepresented whether there was Japanese Knotweed at the property, when he sold it.

Mr Henderson had answered “no” in the TA6 to “Is the property affected by Japanese Knotweed?” Mr Downing said this was a misrepresentation. Mr Henderson defended the claim saying he reasonably believed he was telling the truth when he filled in the form, because he couldn’t see the Japanese Knotweed.

Expert evidence at the trial suggested the weed had previously stood two metres tall and had been treated with herbicide.

After hearing all the evidence, the Judge found that Mr Henderson did not genuinely believe the property was unaffected by Japanese Knotweed.

 

Mr Henderson was ordered to pay £32,000 in damages to Mr Downing for the cost of investigating and excavating the plant, and the diminution in value to the property caused by the presence of the Japanese Knotweed. Mr Downing’s legal costs also had to be paid which were £95,000. Mr Henderson was also responsible for his own legal costs.

Failure to remove it – the latest case - Davies v Bridgend County Borough Council (2023)

On 3 February this year, the Court of Appeal gave its decision in the case of Davies v Bridgend County Borough Council. 

It found if the value of the neighbouring property was diminished as a result of an interference with quiet enjoyment or amenity due to physical encroachment of Japanese Knotweed from the Defendant’s land onto the Claimant’s land, damages in nuisance for diminution in value of the property would be available.

The Local Authority had breached its duty for five years by failing to treat the knotweed on its own land, thus allowing it to encroach on the neighbouring land. This was harm to the neighbours quiet enjoyment and amenity, and was a continuing nuisance.

The District Judge found whilst the Local Authority had breached its duty, it dismissed the claim, and relied on an earlier case being Network Rail Infrastructure Limited v Williams, where the Court of Appeal found the County Court had erred in finding that the presence of Japanese Knotweed was an actionable nuisance, because it simply diminished the marketing value of the neighbouring properties.

The policy decision was that such a claim was one of pure economic loss. In relying on that case, the District Judge at first instance, which was upheld by the Circuit Judge on Appeal, was that the only actual damage suffered by the Appellant was diminution in the value of his property, which was pure economic loss. 

The Court of Appeal allowed the Appeal on the basis that once it was accepted that there was damage leading to diminution in value that was consequential to nuisance, there was no authority that consequential damage to the Claimant’s economic interests was irrecoverable.

It rejected the Respondent’s argument that a Claimant had to prove that the knotweed was a risk to structures on the land, or that there was a prospect of altering the property that the knotweed interfered with.

The Court of Appeal did say that a trivial or de minimis encroachment of knotweed would not be actionable, but once it had been established that it was present on a Claimant’s land to a non-trivial extent, the land’s amenity value had been diminished.

The neighbour was successful and was awarded £4,900 for residual diminution in value.

What to do next?

Professional advice should always be sought before taking any action. 

For further advice on property disputes contact Elizabeth Shaw, Director at Wake Smith Solicitors on 0114 224 2041 or email [email protected] 

Published 07/03/2023

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