Landmark Ruling on Japanese Knotweed Encroachment Case
Robin Waistell v Network Rail Infrastructure Limited
There have been many cases of adjoining landowners settling Japanese knotweed encroachment cases out of court. With the exception of Flanagan v Wigan Metropolitan Borough Council, there has been an absence of any cases tested in the courts, until the recent case brought by two landowners in South Wales against Network Rail Infrastructure Ltd.
This case has helped to clarify what constitutes “nuisance”, and that damages for cost of the knotweed treatment and diminution in property value can be successfully claimed from the defendant.
Environet UK Ltd works closely with Rodger Burnett, from law firm Charles Lyndon, who acted for claimant Mr Waistall in the landmark Network Rail case.
We asked Rodger to summarise and comment:
“Mr Waistell had bought a property in Maesteg, South Wales, in 2012 shortly after his wife died, but deciding that he wished to see out his final years in Spain, attempted to sell the property in 2013. It was during the course of trying to sell his property that Mr Waistell discovered that there was over 600 square metres of knotweed on the railway embankment to the back of his bungalow and that no lender would lend against the property. This, in effect, meant that Mr Waistell was unable to sell his property.
“In order to sell his property at market value, Network Rail would need to instruct a competent contractor to treat the knotweed and ensure that the treatment programme was supported by an insurance-backed guarantee. Despite asking Network Rail to comply with this requirement, they failed to assist Mr Waistell, having only treated the knotweed 3 times since 2012, and at inappropriate times of the year.
“Having no joy on his own Mr Waistell turned to Charles Lyndon to assist him. The case was heard in Cardiff between 28-30th November 2016 and judgment was handed down on 2 February 2016. Recorder Grubb found that Mr Waistell had successfully made out his claim in private nuisance against Network Rail. It was found that not only had Mr Waistell’s property suffered from encroachment, but also that the mere presence of knotweed on Network Rail’s land was an actionable interference with the use and enjoyment of Mr Waistell’s land. As a result, Mr Waistell was awarded damages for the cost of treatment and the residual diminution in value of his property after the treatment had been carried out.
“The case is significant as it holds big landowners to account and imposes a positive duty on them to ensure that any knotweed that is on their property is not preventing neighbouring landowners from being able to sell their property for market value. Failing to comply with this obligation will result in awards for damage for the cost of treatment of the knotweed and any residual diminution of value.
If you would like any further information please contact us or visit Charles Lyndon Lawyers.