Loss of Amenity From The Presence Of Japanese Knotweed – The Final Word In Davies v Bridgend County Borough Council (2023)
We recently reported on the case of Downing v Henderson (2023) where a buyer sued their previous seller for misrepresentation on the existence of Japanese Knotweed.
The Dangers Of Knotweed For All: The Lesson From Downing v Henderson (2023)
Not long after, we have now had another court decision about Japanese Knotweed, but this time concerning the encroachment from neighbouring land.
The Court of Appeal provided clarity on whether damages could be claimed for ‘residual diminution in value’ where Japanese Knotweed had been treated.
The Law on Nuisance
It is useful to remind ourselves that private nuisance is violation of real property rights from either
a) Physical damage to land,
c) Interference with the amenity of the land (right to use and enjoy)
Mr Davies had owned a property at 10 Dinam Street, Nant-y-moel, Bridgend, Wales since 2004. His property was next to land owned by Bridgend County Borough Council (BCBC).
The Japanese Knotweed had probably been present in the BCBC’s land for over 50 years.
Mr Davies started to have concerns in 2017 about the Japanese Knotweed which was spreading from the neighbouring land into his. He complained about this to BCBC in 2019, who had started treating the Japanese Knotweed from 2018.
Mr Davies bought a claim for nuisance against BCBC for a sum of £4,900 being the amount representing a residual diminution in value of the property – the ‘blight’ even after the Japanese Knotweed has been treated.
The First Instance Decision
In November 2021 District Judge Fouracre gave judgment at Swansea County Court.
He found that there was breach of duty by BCBC from 2013 to 2018. Although the Japanese Knotweed was present before this time, there was a continuing nuisance and breach of duty as a result of the persistent encroachment.
Clearly until BCBC treated the Japanese Knotweed (root cause) on their land, any attempts by Mr Davies to ‘eradicate’ the Japanese Knotweed on his own land would be ‘futile’.
However, despite finding there was breach, Mr Davies’ claim was dismissed as the judge decided all diminution in values damages were irrecoverable following the case of Williams v National Rail (2018) (Williams).
The First Appeal
Mr Davies appealed as he contended that the damage were losses consequential on the nuisance.
Circuit Judge HHJ Beard dismissed the appeal in May 2022.
Whilst he accepted that the damages for diminution in value claimed were consequential on the nuisance, he found that Williams meant that damages for diminution in value due to Japanese Knotweed are irrevocable in nuisance.
The relevant paragraph (19) from his judgment confirmed that:
“The only actual damage in this case, which is not physical, is diminution in value. However I consider Williams is authority that such economic damage is not recoverable. The phrase “the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset” could not be clearer. I accept [counsel for the appellant’s] argument that this is damage leading to a loss which is consequential on the nuisance found. However, it is not recoverable damage, it is pure economic loss.”
The Second Appeal
Mr Davies was given permission to bring a second appeal as the point of recoverability was important especially given the number of Japanese Knotweed cases on the rise.
The second appeal was heard by Lord Justice Baker, Lord Justice Birss and Lord Justice Snowden in the Court of Appeal in January 2023, with judgment handed down in February 2023.
They went to great lengths to explain the correct interpretation of Williams and the appeal was allowed as the original judge has misinterpreted the case.
Williams merely 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.
That phrase does not mean that in a case in which the elements of the tort of nuisance are satisfied, the claimant cannot recover for damage to their economic interests if the value of the claimant’s property is diminished as a result of an interference with the claimant’s quiet enjoyment or amenity, due to physical encroachment of knotweed from the defendant’s land into the claimant’s land, damages including diminution in value of the property will be available.
The reasoning at the end of paragraph 19 of the Circuit Judge’s judgment is flawed because once it is accepted that there was damage leading to a loss (the diminution in value) which was consequential on the nuisance, there is no authority that consequential damage to the claimant’s economic interests is irrecoverable
The case has been widely reported in the press including in The Guardian.
It has been reported that the barrister who represented Mr Davies has a large number of potential cases.
The general public are probably more informed about the dangers and implications from the presence of Japanese Knotweed on their land especially with more high profile claims coming into the press. Japanese Knotweed is a natural hazard and once you have established non trivial presence of Japanese Knotweed then Davies is now authority that consequential residual diminution in value (being the loss in amenity) may lead you to recover damages.
Environetuk has created a JP ‘Heatmap’ which shows sightings of Japanese Knotweed. Wales appears to have some of the worst cases, and both Davies and Williams were cases about land in Wales.
The Royal Institute of Chartered Surveyors provided an updated Guidance Note called ‘Japanese Knotweed and Residential Property’ to address public concerns and misunderstanding about Japanese Knotweed.
As to whether Davies will open the floodgates for claims, time will tell. You have to put in perspective diminution in value claims will be unlikely to be worth as much as claims where there is actual physical damage from Japanese Knotweed. Mr Davies’ claim was for less than £5,000 although legal costs rose to about £300,000 and was only permitted given the important point of law that needed to be decided. In most cases, legal costs could potentially be disproportionate.
It is imperative to have appropriate insurance, advice and treatment when dealing with Japanese Knotweed. If you would like to discuss this in more depth, contact our leading Property Dispute solicitors now on 0808 252 5231 or request a call back.