Network Rail Infrastructure Ltd v Williams & Anor, Court of Appeal - Civil Division, July 03, 2018, [2018] EWCA Civ 1514

Resolution Date:July 03, 2018
Issuing Organization:Civil Division
Actores:Network Rail Infrastructure Ltd v Williams & Anor
 
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Neutral Citation Number: [2018] EWCA Civ 1514

Case No: B2/2017/1470

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CARDIFF COUNTY COURT

Mr Recorder Grubb

B20YX969, B34YJ849

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 3 July 2018

Before :

THE MASTER OF THE ROLLS

LADY JUSTICE SHARP

and

LORD JUSTICE LEGGATT

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Between :

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David Hart QC and Jessica Elliott (instructed by BLM) for the Appellant

Tom Carter (instructed by JMP Solicitors) for the First Respondent

Stephen Tromans QC and Nicola Atkins (instructed by Charles Lyndon) for the Second Respondent

Hearing dates : 12 and 13 June 2018

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Sir Terence Etherton MR :

  1. This is an appeal from the order dated 2 February 2017 of Mr Recorder Grubb, sitting in the Cardiff County Court, in which he found in favour of both respondents, Mr Stephen Williams and Mr Robin Waistell, in respect of their claims in private nuisance for the effects of Japanese knotweed on their properties which the appellant, Network Rail (``NR''), had allowed to grow on its adjacent land. This appeal raises a range of issues, most of which can be grouped under the overarching question of what kinds of damage give rise to an actionable claim in the tort of private nuisance.

    Japanese Knotweed

  2. In order properly to understand the effects of Japanese knotweed, it is necessary to set out some background as to its nature. The Royal Institution of Chartered Surveyors (``RICS'') published an ``information paper'' in 2012 (``the RICS paper'') on ``Japanese Knotweed and Residential Property''. This provides information on ``The Japanese Knotweed problem'', ``The scale of the problem'', ``Effective treatment of Japanese Knotweed'' and ``An assessment framework for Japanese Knotweed''. The contents of the RICS paper, so far as relevant, are not challenged by NR.

  3. The RICS paper describes Japanese knotweed as a hardy bamboo-like perennial plant which grows quickly and strongly and spreads through its underground roots or rhizomes. Rhizomes are similar in their effects to roots, being underground stems which themselves produce fine, white, hair-like roots. Its thick clumps and stands can quickly grow to a height of over two metres (at para 2.1.1). The roots can extend up to seven metres horizontally and three metres vertically (at para 5.5.1). The most severe category of risk presented by knotweed is where the knotweed is within seven metres of a habitable space. The RICS paper states that knotweed can affect drains, patios, paths, drives, boundary walls, retaining walls, outbuildings, conservatories and gardens. It can block drains; disrupt drain runs; grow between slabs of concrete drives; disrupt brick paving; undermine garden walls; and overwhelm poorly built outbuildings and conservatories (at para 3.2.1)

  4. The RICS paper observes that the Environmental Protection Act 1990 (``the EPA 1990'') designates Japanese knotweed as `controlled waste' that can only be removed and disposed of by licensed organisations (at para 3.2.2)

  5. It states that, once it is established, ``eradication requires steely determination''. Treatment methods include excavation and disposal of knotweed affected soils, installation of a root barrier membrane to encapsulate the knotweed and chemical spraying, although spraying can take more than 3 years to be effective (see Section 4).

  6. The Environment Agency have published a knotweed code of practice. This was originally published in 2006 and was amended in 2013 (``the EA code of practice''). This states that greenhouse trials have shown that as little as 0.7 grams of rhizome material (10mm in length) can produce a new, regenerated plant within 10 days. It states that rhizome material may remain dormant for long periods, possibly as long as 20 years (at Section 1.3).

  7. The EA code of practice advises that heat treatment cannot be relied upon to kill the knotweed completely. It gives advice on burying on site soil containing Japanese knotweed material and the burnt remains of Japanese knotweed. It says that in such circumstances it is advisable to apply a non-persistent herbicide to reduce the growth of infective material and that the material must (unless impossible) be buried at least 5m deep and be covered with a root barrier membrane before infilling it with inert filler or topsoil. It advises that there should be expert supervision when the membrane is installed, and that a manufacturer's guarantee of at least 50 years is obtained.

  8. The EA code of practice says that, if Japanese knotweed cannot be killed by burying infested excavated soil on site, it must be disposed of at a suitably licensed or permitted disposal facility, but this should be regarded as a last resort. It says that disposing of soil contaminated with Japanese knotweed to landfill uses up valuable landfill capacity, involves large-scale haulage and can be very expensive.

  9. The RICS paper states that the restrictions on the disposal of Japanese knotweed contaminated soil, as ``controlled'' waste under the EPA 1990, which may only be removed from the property by licensed organisations and taken to appropriately licensed waste facilities, can have serious implications for property owners who wish to develop their property. It observes that large amounts of contaminated soil are likely to result from activities such as adding an extension to the main building, redesigning the garden, and maintaining and repairing the property following a knotweed infestation (for example, re-laying paths and drains); and the need for licensed removal of such contaminated soil and any dead plant material will obviously add to the cost of the work.

  10. The pernicious ramifications of the presence of Japanese knotweed have prompted a specific published policy of the Council of Mortgage Lenders (``the CML''), which states that the presence of Japanese knotweed might affect the valuation of a property and might be an issue for customers whose property is affected but who find it difficult to afford treatment costs. It states that valuers who inspect property for mortgage purposes are instructed to report to lenders where knotweed is present, that there are legal restrictions on Japanese knotweed and that lenders and customers are therefore likely to need professional help with remedial work.

  11. The CML published policy notes that the pre-contract enquiries that conveyancers seek as part of the legal process ask whether Japanese knotweed is present. The Law Society Property Information Form TA6, which is required to be completed by the seller of a residential property, particularly where the parties' solicitors adopt the Law Society's Conveyancing Protocol, has a specific enquiry relating to Japanese knotweed. Enquiry 7.8 asks whether ``the property is affected by Japanese knotweed'' and, if it is, whether there is a Japanese knotweed management plan in place; it requests a copy of any such management plan to be supplied.

  12. We were also shown policies by two lending institutions, Barclays and Nationwide, containing their lending criteria for properties. If Japanese knotweed is within seven metres of a habitable space, in accordance with the RICS paper, Barclays requires that: this is noted in the valuation report together with a valuation of the property; further investigation is undertaken by a registered Property Care Association or similarly qualified firm; and all recommended remedial works must be covered by an insurance backed guarantee which is for a minimum of 10 years, is property specific and is transferable to subsequent owners. Similarly, in such a situation, Nationwide requires a specialist report in respect of eradicating the knotweed, including an insurance backed 5 year warranty against re-appearance of the plant.

    The factual background

  13. Mr Williams and Mr Waistell (together ``the claimants'') are the respective freehold owners of two adjoining semi-detached bungalows located on Llwydarth Road in Maesteg, South Wales. Mr Williams owns bungalow No 1 known as ``St Anne's'' which he purchased in 2003. Mr Waistell owns bungalow No 2, known as ``St Anthony's'' which he purchased in 2012.

  14. NR owns the land immediately behind the claimants' properties comprising an access path bordered by a post and wire fence leading to an embankment which drops down to an active train line. The rear walls of each of the claimants' properties immediately abut the access path owned by NR.

  15. On the embankment is a large stand of Japanese knotweed, which all parties accept has been present on NR's land at this location for at least 50 years.

    The proceedings

  16. The claimants issued claim forms on 7 May 2015 and 23 February 2015 respectively, in which they brought claims in private nuisance on the basis that Japanese knotweed growing on NR's land had caused damage to their properties. Each sought an injunction to require NR to treat and eliminate the knotweed on its land and damages under various heads of loss. By way of defence, NR alleged that both claimants had failed to establish that the necessary elements of a cause of action in private nuisance were made out on the facts.

  17. The proceedings were tried before the Recorder in the Cardiff County Court for three days between 28 and 30 November 2016. The Recorder handed down a substantial, detailed and careful judgment on 2 February 2017.

    Judgment under appeal

    Private nuisance

  18. The Recorder in his judgment noted (at [45]) that the claimants' claims in private nuisance were presented in two alternative ways.

  19. First, the Recorder addressed the claimants' ``Encroachment Claim'', in which they argued that NR was liable as the occupier of the land where Japanese knotweed was present for its encroachment upon their own land without them needing to prove any damage to their properties. He rejected (at [45] and...

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