Laying down the law - dealing with some knotty problems

4th May 2017

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Simon Colvin looks at cases involving knoteweed and dual regulation.

Knotweed was introduced into the UK from Japan in 1825 as an ornamental plant. Since then it has gone on to spread aggressively and is now recognised as the most invasive plant in the country.

The Wildlife and Countryside Act 1981 classes it as an invasive non-native species. It is an offence under the act to plant or to cause knotweed to grow in the wild. New controls on invasive non-native species were introduced by the Infrastructure Act 2015, including species control agreements and orders. These have yet to start to bite because the supporting code of practice has yet to be finalised.

Meanwhile, a recent court case involving Network Rail has highlighted the civil – as opposed to the regulatory – risks associated with knotweed.

No longer good neighbours

The unreported case at Cardiff County Court involved Network Rail and two people – Mr Waistell and Mr Williams – whose properties backed on to land owned by the railway infrastructure company. It is believed to be the first such case to have been considered by courts in the UK.

It is understood that, historically, Network Rail had sought to settle cases outside court but, because of the scale of the problem across the UK on its land holdings, it decided to contest this one to determine how the courts would assess the issue.

Liable for damages

The case has confirmed that a landowner whose land is invaded by knotweed can be liable for damages that relate to the decrease in the value of a neighbouring property as well as the cost of treating the plant. Waistell and Williams were awarded £4,320 each to treat the knotweed on their own land. They also received £10,000 each for the decrease in the value of their properties. Although the actual fall in the value of the houses was larger, the judge said the claimants could return to court to recover the additional amounts if Network Rail did not successfully treat the knotweed on its land.

Network Rail has not yet confirmed whether it will appeal against the decision of the court.

A case in point

The case is a very significant for landowners such as Network Rail because it confirms the long-held view that the spread of knotweed should be considered a legal ‘nuisance’ and that those affected should be able to claim damages.

Historically, knotweed was used as an earth stabiliser for railway embankments. Passengers looking out of a train window during the summer will see dense stands of knotweed lining railway embankments. Households adjoining those railway lines will now be considering their options in relation to the treatment of knotweed and whether to post a claim for the impact of its presence on the value of their homes.

Landowners must consider the risks associated with stands of knotweed on their land and whether they should try to eradicate them before they face any claims. Owners of adjoining sites should now consider whether they ought to engage with the landowners on whose sites knotweed can be found and request action to remove the plant. They may also consider seeking damages for any resulting decrease in the value of their own land.

Duplication of regulation

The case of R v Recycled Material Supplies Ltd concerned the duplication of regulation by a local authority the London Borough of Newham and the Environment Agency.

Recycled Material Supplies operated a site in east London under two environmental permits: one for mobile plant, granted by the council, and the other for the operation of site, which was granted by the agency.

A condition of the local authority permit included a requirement that vehicles moving materials be ‘enclosed’. However, council officers observed vehicles that were not enclosed and took enforcement action against the company. RMS was convicted. It appealed against the judgment on several grounds, including that it was inappropriate for the council to regulate it and that the agency should be the sole regulator.

The Court of Appeal accepted this argument. It said the activities regulated by the permits were not separate and distinct; there was a blurring of the lines. The so-called mobile plant regulated by the local authority permit was in fact mostly stationary. Also, it was used as part of the process regulated by the agency permit. It concluded that the council should not have issued a separate permit and the conviction was overturned.

Mixed message

The message from the case that regulators must take care when issuing permits for sites that are already permitted. Does the activity need a new permit? Is it already covered by the existing one, or is it best dealt with by way of a variation?

The whole purpose of the regime under the Environmental Permitting Regulations 2007 (now 2010 (as amended)) was to have a single regime to regulate of activities that posed a risk to the environment.

What we have seen in recent years is the steady creep back towards the application of multiple regimes and multiple regulators. Defra had planned a wholesale review of the environmental permitting regime before last year’s referendum. No doubt that is now some way off.

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