Lauren Parsons, Senior Associate at Berry Smith, considers the story so far following the recent ruling in Davies -v- Bridgend County Borough Council.
The beginning.
It is well established that Japanese Knotweed can have a significant impact on the value (as well as marketability and insurability) of land. This is because it can be very difficult and expensive to get rid of.
There have been numerous cases regarding Japanese Knotweed that confirm it is possible for someone to bring a claim in nuisance should a landowner allow it to encroach onto neighbouring land.
What is not certain is the outcome of any nuisance claim. The law on nuisance is continuing to develop and there have been some recent cases (Tate Modern Case and Jalla -v- Shell) that have confirmed developments are still occurring.
This has resulted in numerous cases being appealed and, in the matter of Davies, taken to the Supreme Court.
The middle.
In Davies -v- Bridgend, the Court of Appeal awarded the Claimant damages for nuisance as a result of Japanese Knotweed encroaching onto his land. The Japanese Knotweed originated on land owned by the Defendant.
It is accepted, following the decision in Williams -v- Network Rail, that 2013 is the date of knowledge for a foreseeable risk of harm in respect of Japanese Knotweed. As such, from 2013, the Defendant should have been treating the Knotweed, yet it failed to do so until 2018, despite the evidence showing it knew Knotweed was present.
The Claimant argued that the mere fact Japanese Knotweed had once been present would result in a residual diminution in value to his property, meaning he had suffered a loss in this respect.
The Defendant argued that, on the evidence available, the Japanese Knotweed rhizomes had spread to the Claimant’s land by 2004. It argued that the Knotweed was present before any breach (2013) and that any loss which predated the breach could not be recoverable, it such loss could not be as a result of the breach, given it already existed.
The CoA rejected the Defendant’s argument, with Birss LJ saying “The fact the encroachment was historic was no answer when there was a continuing breach of duty as a result of persistent encroachment.”
The Defendant appealed to the Supreme Court.
At its heart, the argument forwarded by the Defendant was simple: if a loss occurred before (2004) breach (2013) then such loss cannot have been caused by that breach. Even if the breach had not occurred, the Claimant would have been left with a property that required treatment for Japanese Knotweed, meaning the Claimant was in the same position before the breach as he was after.
The Supreme Court agreed with the Defendant’s argument. The SC determined that the Knotweed had been present since at least 2004 and the residual loss was caused by the initial encroachment, which was before the Defendant’s breach of duty.
As such, the Defendant was not liable for the Claimant’s residual loss of diminution in value to his property.
The end….?
The Supreme Court did not overturn the CoA’s findings in respect of pure economic loss or ongoing blight, which the Defendant had also attempted to argue. The CoA had determined that a property affected by Japanese Knotweed will have a residual diminution in value, even once the Knotweed has been treated.
This, along with the CoA’s finding that a loss related to ongoing blight is recoverable in nuisance claims, were endorsed by the SC.
However, what the decision of the SC does do is leave open the possibility that other environmental contaminations, which have been remedied, but may have a residual blight, can now be subject to nuisance claims.
The decision also supports the position in respect of limitation arguments in that, if Japanese Knotweed encroached more than 6 years before a claim is issued, then, even if it is a continuing nuisance, there is an argument that any residual loss claim would be statute barred.
As such, whilst the headlines may make it seem like the SC’s decision was a win for Defendants, it is still vital that any landowner who has land on which Japanese Knotweed may be present, takes steps to limit risks of being party to a nuisance claim.
Berry Smith’s Dispute Resolution team is more than happy to assist with any property dispute you may have and is regularly instructed on such matters, for both Claimants and Defendants. Please do not hesitate to contact us on 02920 345 511 or dispute@berrysmith.com.
