How a Welsh homeowner won the first Japanese Knotweed claim of its kind

The Court of Appeal has overturned a decision by the lower courts that diminution in value caused by Japanese knotweed is an irrecoverable economic loss.

In this article, Scott Cable, partner in our real estate dispute resolution team, explains how the Claimant was able to appeal twice, and recover damages after Japanese knotweed affected his property in Wales.

Background

A property owner, Mr Davies, purchased his property in Nant-y-Moel, a village in Wales, in 2004 as an investment property.

He later discovered that Japanese knotweed had spread to his property from a neighbouring site owned by Bridgend County Borough Council.

Mr Davies issued a claim for damages for diminution in value to his property that the presence of Japanese knotweed had on the same which was rejected at first instance.

In February 2023 however, the Court of Appeal overturned the decision and awarded Mr Davies damages for diminution in value.

What is Japanese knotweed?

Japanese knotweed is native to Japan, Taiwan and northern China and was originally introduced to the UK in the early nineteenth century as an ornamental plant.

It can however cause significant problems as it can cause physical damage to buildings and land through spreading its roots. This, as Mr Davies found out, adversely affects the value of property as well as its insurability and marketability.

Note it is not an offence for a landowner to have Japanese knotweed growing on their land and there is no requirement to report its presence which can unknowingly cause damage and loss.

The facts of the case

In 2017, Mr Davies had concerns about Japanese knotweed spreading onto his land from a neighbouring land owner being Bridgend County Borough Council. He complained to the Council in 2019 about the problem who had incidentally started treating the present Japanese knotweed the year before in 2018.

He brought a claim for nuisance against the Council in the sum for £4,900 being the amount representing the diminution in value of his property.

First instance decision

In November 2021 the matter was dealt with at Swansea County Court. The District Judge hearing the matter found that there was a breach of duty from the Council from 2013 to 2018.

Although it was accepted the Japanese knotweed was present before 2013, there was a continuing nuisance and a breach of duty as a result of the persistent encroachment.  

It was accepted that until the Council treated the Japanese knotweed on their land, being the source of the same, any attempt by Mr Davies to eradicate it from his land would be futile.

Despite finding there was a breach, the claim was dismissed as the District Judge decided all diminution in value claims were irrecoverable following the case of Williams v Network Rail (2018).

Williams v. Network Rail

Briefly, Williams concerned a claim by two homeowners Mr Williams and Mr Waistell, who owned two adjacent bungalows which backed onto a railway owned by Network Rail where Japanese Knotweed was present and encroached onto their land.

Both brought a claim in private nuisance for diminution in value. Whilst the Judge in the first instance awarded damages for diminution in value, this was overturned by the Court of Appeal who stated that the purpose of the tort of nuisance is not to protect the value of the property as a financial asset.

They confirmed that the County Court’s decision was wrong in so far as it effectively extended the tort of nuisance to a claim for pure economic loss i.e. diminution.

First Appeal

Mr Davies appealed and contended that the damages were losses as a result of nuisance.

Whilst the Circuit Judge accepted that the damages for diminution in value claimed were consequential on the nuisance, he agreed with the first instance Judge that Williams meant that damages for diminution in value due to Japanese knotweed are irrecoverable in nuisance.

He accordingly dismissed the appeal in May 2022.

Second Appeal

Given the number of Japanese knotweed cases on the rise, Mr Davies was given permission to bring a second appeal on the point of recoverability. This was heard in the Court of Appeal earlier this year.

The Judges hearing the matter went to great lengths to explain the correct interpretation of Williams v Network Rail and how the original judge had misinterpreted the case.

They explained that Williams simply confirmed that there is no actionable nuisance caused by Japanese knotweed on a defendant’s land ‘simply’ because it diminishes the market value of the claimant’s land.

The Judges went on to explain that where the presence of Japanese knotweed adversely affects the landowner’s economic interests  in the value of the property as a result of an interference with the Claimant’s quiet enjoyment or amenity, damages including diminution in value will be and are available.

Mr Davies was accordingly awarded judgment in the sum of £4,900.

This case is likely to give rise to a number of claims for diminution in value as a result of the presence of Japanese knotweed.

For more information or for advice on a similar matter, please contact our real estate dispute resolution team or get in touch with Scott Cable directly using 0191 211 7890 or [email protected].