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Japanese knotweed: untangling the law around fallopia japonica

Growing up to ten centimetres a day during summer, Japanese knotweed is one of the most invasive plants in the United Kingdom and is considered one of the world’s 100 worst invasive species. Brought over to the UK by the Victorians to bind together the earth on railway embankments, more and more people are finding this weed spreading from the rail lines and onto their property. The presence of knotweed on or even just near a property can be a blight on saleability; some mortgage companies will refuse to lend against properties at risk.

Knotweed removal

Knotweed can be difficult to remove and often causes damage to tarmac, concrete and building walls. Knotweed removal can also be a time-consuming process involving repeated treatments and check-ups continuing for years after the original invasion. Unsurprisingly, the process is often expensive as well, with treatment for even relatively small infestations costing tens of thousands of pounds. If left to grow onto another person’s land – and if the owner of the contaminated land refuses to act – the neighbouring party could seek redress through their local authority or the courts.

Invasive species

A victim of Japanese knotweed that originates from somebody else’s land can ask their local authority to provide assistance with removing the plant. Under various statutory legislation, local authorities have the power to serve a ‘notice to remedy’ on an occupier of land, which requires them to remove the source of the invasive non-native species (also known as an ‘INNS’). The local authority usually exercises this ability as a priority when it is spreading onto adjoining land and, if the liable individual does not comply with the notice, they may be prosecuted in the magistrates’ court.

Notice to remedy

The notice itself must give the individual concerned 28 days to remove the knotweed. However, because of this long period, the affected party may consider a notice to remedy inappropriate. If the local authority becomes involved, that might serve to abate the knotweed, but the local authority will not become involved in playing a part in getting the damaged property reinstated. Therefore it may be more appropriate to seek the assistance of a law firm with experience not just of the legal remedies but also the practicalities of treatment using different methods, as well as the commercial realities.

Lyons Davidson recently acted on a case where an infestation from railway land interfered with the planned sale of a large plot of commercial land, as well as having significant implications for the possible uses of that land in the future.

If you do look to settle a claim without legal advice, you should be open to the possibility that the problem may reoccur. For this reason, we recommend that you take formal legal advice to ensure you do not prevent your right to claim for any future events.

For more information on any of the issues raised in this article and how they might affect you or your business, please contact Adam Coumis by emailing acoumis@lyonsdavidson.co.uk or calling 0117 904 5818

 

Posted on Aug 25th, 2016 by Lyons Davidson