A victory in court regarding Japanese Knotweed has been overturned, after Bridgend Council repealed a decision last week that saw a UK homeowner win his case against the local authority, after the invasive plant infiltrated his land.
In February Mark Davies won a case against his local council after his property was ravaged by the hazardous plant Japanese Knotweed. Davies was awarded £4,900 from Bridgend Council in South Wales after his lawyer pointed out that ‘stigma’ associated with the non-native plant species would lower the value of his property.
Bridgend Council have sought to appeal the outcome, after saying they do not think Davies should be awarded damages. They also claim that the issues Davies faced after his property was overrun by Japanese Knotweed were before their breach of duty.
Last week, on May 8th, the dispute was seen back in court. Both parties were in agreement that the knotweed was on Davies property prior to 2004 and had caused issues between that time and 2018. Bridgend Council also admitted that they had not taken ‘preventative action’ during this time.
At the latest trial the council contended that the claim for residual diminution in value of property from Davies was fatally flawed as any residual diminution in value was caused by the non-actionable presence of Japanese Knotweed on Davies land which occurred ‘well before 2004’. Bridgend Council said their breach of duty had occurred in 2013, but as the rhizomes had been present almost a decade before this. They also said the ‘stigma’ associated with the plant had been caused before their breach of duty.
Davies’ lawyer Tom Carter stated in the court of appeal that homeowners affected by knotweed could be ‘out of pocket’ after paying for treatment, which can take five to seven years. The damaging plant can grow to up to four meters in 10 weeks and its rhizomes (roots) can spread seven metres horizontally underground.
Carter said:“The importance of Davies is that it has confirmed beyond doubt that that loss can be recovered and that’s really the crucial issue.
“If the court of appeal had said no on that point, then anyone affected by knotweed could get the treatment costs but then they’d be left out of pocket for this loss of value of their home. And if they were to sell their home a year, five years later or whenever, they’d still suffer a loss at that point they wouldn’t have been able to recover.”
Chun Wong, partner at Hodge, Jones & Allen solicitors, said Davies’ case could encourage more knotweed claimants.
She said: “It’s talking about what happens after the knotweed has been treated so it’s been found in the garden, hasn’t caused physical damage per se, but just having its presence because of the stigma attached … means somebody is going to pay less for this house than if the house had no knotweed at all.”
The issue as to whether Davies was entitled to £4,900 for residual diminution in value of his home has now reached the Supreme Court on a third appeal. The main issue is one of causation, namely whether the residual diminution in value was caused
by the council’s breach of duty in private nuisance.
Lord Evershed, who spoke at the trail, made clear that the same result would have been reached had the earlier damage been brought about by Davies. The Court heard how ‘it also follows that the same result would have been reached had the damage first been brought about by a natural event’. In conclusion the judge decided not to award Davies £4,900 and the council’s appeal should be allowed.
The court used a case from 1898 – Kerry V England, to prove their point regarding breach of duty but a Privy Council. The 19th Century case was an example of how the same result could indeed occur in nature. The defence said:
‘A druggist had negligently supplied tartar emetic, a fatal poison, instead of bismuth, to a fatally sick patient for an attack of
influenza. Damages for the deceased’s husband and child were reduced to nil by the Privy Council on the basis that the tartar emetic had not accelerated to any appreciable extent an already imminent death. In other words, applying the “but for” test, the breach of duty had not caused the loss from the death because the deceased would have died at much the same time irrespective of the breach of duty.’
The court also heard that Bridgend Council would have been liable for the stigma and damage on Davies land in certain circumstances:
‘In respect of a natural hazard, such as Japanese Knotweed, it has been held, or indicated, that, in general, the defendant is liable in the tort of private nuisance only where it is at fault taking into account the defendant’s individual circumstances, including financial resources.
‘The Court of Appeal held that the claimant was entitled to recover damages for that residual diminution in value and awarded damages for it of £4,900. The defendant now appeals arguing that, as a matter of causation, the decision of the Court of Appeal is incorrect and no damages should have been awarded.’
Japanese Knotweed is commonly found along rivers, it can also grow on roadsides and waste grounds – the plant, which can cause structural damage to buildings by infiltrating the framework, is not poisonous to animals or humans. Knotweed has a rapidly growing root system and has damaged house foundations, flood defences and pavements.
The weed, which looks similar to the poisonous Giant Hogweed can be disposed of in several ways, including burning, spraying chemicals on the weed or burying it. A homeowner must notify the Environment Agency at least one month before they bury the knotweed.
Botanists introduced the plant into the country in the Victorian era as an ornamental plant. Reports claim that 19th century engineers used the knotweed to stabilise railway embankments. Today, Network Rail has found itself as the defendant in a large number of Japanese Knotweed cases.
Carter was also present in a 2018 knotweed case, where the principle that owners adjoined to properties invaded by the plant could sue if their own home had been encroached, the cases involved two bungalow owners against Network Rail.
The Guardian reported that last month, a house seller was ordered to pay £32,000 in damages plus legal costs for misrepresenting to the buyer whether there was Japanese knotweed at the property. Surveyors have also been sued for professional negligence for failing to identify its presence.
The government recommends that homeowners must stop Japanese knotweed on their land from spreading off the property. Soil or plant material contaminated with invasive plants can cause ecological damage and may be classified as controlled waste.
Homeowners do not legally have to remove Japanese knotweed from their land unless it’s causing a nuisance, but can be prosecuted for causing it to spread into the wild.
This article was originally published in good faith with information from the trial dated February 2024, this version has been updated to reflect the events after May 8th 2024, where the council sought to appeal the judge’s conclusion.
