In the case of Davies v Bridgend County Borough Council [2023] the Court of Appeal found that where the value of a neighbouring property was diminished by the encroachment of Japanese Knotweed, damages in nuisance for diminution in value of the property would be available. The case concerned a property in Wales which was acquired by Mr Davies in 2004 which backed on to an embankment leading down to an old railway line owned by the local council. It was established that Japanese Knotweed had been present on the council’s land for more than 50 years and had likely spread onto Mr Davies’ land prior to his acquisition. The council did not begin to treat the knotweed until 2013 when it enacted a treatment programme that ran until 2018. Mr Davies claimed damages for diminution in value of his property, including the cost of treatment and a sum for disturbance and inconvenience in the sum of £4,900.
The County Court found that there was no dispute that Bridgend County Borough Council had breached its duty owed in nuisance to Mr Davies through persistent encroachment of Japanese Knotweed between 2013 and 2018, but the issue concerned whether it owed a continuing duty after 2018, following the steps taken to deal with the problem. The District Judge found that the council had breached its duty but dismissed the claim. Relying on the decision in Network Rail Infrastructure Ltd v Williams and another [2018] EWCA Civ 1514, the District Judge held that damages for diminution in the value of Mr Davies’ property was irrecoverable.
The Circuit Judge upheld that decision on appeal, finding that the only actual damage suffered by Mr Davies was diminution of the value of the property, which was pure economic loss and as such, not recoverable. The Circuit Judge also rejected causation.
On appeal, the Court of Appeal held the Circuit Judge’s logic was flawed in the sense that once it was accepted that there was damage leading to diminution in value that was consequential on the nuisance, there was no authority that consequential damage to Mr Davies’ economic interests was irrecoverable. Nor was the council correct to argue that Mr Davies had to prove that the Japanese Knotweed was a risk to structures on his land, or that there was a prospect of improving or altering his property, or something similar. So, where a trivial encroachment of knotweed would not be actionable, once substantially present on Mr Davies’ land, the land’s amenity value had been diminished and Mr Davies was entitled to recover damages of £4,900.
The case has been reported in the media and no doubt there will be more cases to come given that landowners are probably more informed about the dangers of Japanese Knotweed. It is important to obtain proper advice on the cause and treatment of Japanese Knotweed and the implications this will have for landowners and any insurance cover. If you would like to discuss this further, contact 020 7725 8000 or our Head of Real Estate Dispute Resolution, Leon Golstein, at [email protected].