Japanese Knotweed – A Gordian Knot?

This will be of particular note to conveyancers:- it is important to ensure that clients are fully aware of the necessity to inform of the presence of knotweed, and also that they are fully aware of the possible implications for failing to do so.

Due to its rapid rate of growth and the expense and difficulty in removing it, Japanese knotweed can notably affect the value of a property.

There is no general requirement to inform anyone of the presence of Japanese knotweed on one’s property.

However, this change when it comes to conveyancing. The Law Society’s TA6 form requires a seller to notify a buyer of the presence of Japanese knotweed at the property. Failure to knowingly do so, by answering either “no” or “don’t know” can leave the door open for the buyer to rescind the contract or claim compensation in the form of damages.

Its presence can also have future implications from a buyer’s prospective. The aforementioned recent Court of Appeal decision concerned 2 landowners who sought compensation for a neighbour’s failure to prevent the spread of the invasive perennial onto their land.

Network Rail v Williams & Waistell was heard at first instance in the Cardiff County Court, where Mr Recorder Grubb awarded Mr Williams and Mr Waistell damages to the value of £10,500 and £10,000 respectively. This was on the grounds that Network Rail had known about the presence of Japanese Knotweed within 7 metres of the boundary on their adjacent land but had “failed reasonably to prevent the interference with the claimants’ enjoyment of their properties”.

The decision in the lower court was upheld in the Court of Appeal, for other reasons:~- the lower court decision was described as being “wrong in principle”.

The Court of Appeal rejected the argument that a “nuisance” could include a claim for “pure economic loss”, instead ruling that the underlying ingredient of nuisance was to protect the owner of land…. “In their use and enjoyment of the land”. Thus, the damages award by the lower court was upheld on the grounds that future enjoyment of the land, such as through development or sale, would likely be affected by the presence of the knotweed. Network Rail were thus liable for damages in this regard.

This ruling comes at an interesting time for the subject as a whole. Two recent contradictory studies have cast doubt over the impact of Japanese Knotweed on land, and thus the future of this area of the law is by no means certain.

It was reported in April this year that a 3 year study conducted by the University of Swansea into methods of removing Japanese knotweed found that “eradication was not possible”. However, a study conducted by the University of Leeds reported in July that ecologists found “no evidence Japanese knotweed causes significant structural damage” and that “Automatically refusing mortgages on properties where Japanese knotweed is found is out of proportion to the risk posed by this invasive species”.

To some extent therefore, these different studies leave the law in limbo. Should the findings of the University of Swansea study transpire to be the case, then it is likely that claims involving the presence of Japanese knotweed will increase, and its presence will become a more significant consideration in future conveyancing.

Conversely however, should the University of Leeds’s conclusion be further supported, then this could lead to a very abrupt end for litigation on the issue of Japanese knotweed. After all, if there is no problem caused by its presence, there is no harm from a structural and conveyancing point of view. Whether this particular line of litigation grows like the weed itself, or withers and dies, is one where we must “wait and see”.

What is clear, is that for buyers and sellers alike, Japanese knotweed is now a very real issue that needs close attention and some thought. In the preliminary stages of any purchase or sale, answers need to be given with thought and the answers need to be considered carefully, together with the need to consider asking further questions; or even, engage a specialist to inspect and report.

Our Property team has extensive experience of assisting buyers and sellers in relation to queries concerning Japanese knotweed. If you would like advice surrounding this issue please contact us on hello@cookco.co.uk or 0117 317 9719.