A court ruling regarding Japanese knotweed has been described as "landmark" by the Property Care Association (PCA), but will it drive an upturn in weed-control contracts?
Network Rail has been ordered to pay £15,000 compensation for loss of value on the price of a house after Japanese knotweed spread from its land to two neighbours'. Homeowners Robin Waistell and Stephen Williams, whose homes in Maesteg, south Wales, adjoined railway land, won a four-year legal fight for compensation from Network Rail in Cardiff Civil Court in February after telling the court they could not sell their home because of the knotweed problem.
They brought the case under the law of private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a (claimant's) land or his use or enjoyment of that land".
They were not entirely successful, having asked for the drop in property value but being awarded £4,320 each to pay for knotweed treatment and £10,000 each in compensation. Network Rail has said is now reviewing the judgement but has declined to say whether it will appeal.
However, trade body the PCA, which represents weed-control contractors, says the case has the potential to alter the legal landscape for owners of public land, although it is too early to tell whether it will set a legal precedent. That depends on the result of any potential appeal by Network Rail.
PCA chief executive Steve Hodgson says: "We're not actually that much further forward until an appeal has been heard. In any event, what this judgement will do is empower people with similar situations to bring action against their neighbours. It's bound to interest solicitors and potentially put wind in the sails of the home and landowners that feel they have a grievance. The implications of doing nothing are that there is something out there that looks pretty similar that found for a claimant against an inactive landowner. It brings the issue to the fore. It makes some more nervous about defending or doing nothing."
According to experts, Network Rail has a particularly severe problem with Japanese knotweed because the plant was purposely planted alongside many of our railways by 19th century engineers. Ironically, it was exactly the same trait that causes landowners so many problems today that made it ideal for the engineers' purposes. They used it to stabilise embankments because its massive and robust root system was perfect for holding the soil together. The company has declined to comment on this. The invasive species was also used by riverside authorities to stabilise embankments before they realised the implications, say experts.
More work for contractors
Japanese Knotweed Solutions chief executive Mike Clough says: "I think the case should result in a lot more work for Japanese Knotweed contractors." He adds: "What will actually happen is Network Rail will appeal against this case. I would imagine it's not all over yet - there is going to be some continued argument."
A Network Rail spokesperson said: "All Japanese knotweed sites reported to us by our lineside neighbours are included in our chemical control programme and sprayed on an ongoing basis. We are continually reviewing our processes for controlling Japanese knotweed. This includes working closely with experts within Network Rail and with third-party organisations."
Clough suggests that it is in Network Rail's interests to launch a successful appeal because the cost of fighting hundreds of similar cases up and down the country could be crippling. "It's that big a problem. There will be some very nervous people sat around Network Rail. I think their longer-term response might be they will put a management programme in place."
Mapping the infestations across its entire network is a key priority, says David Layland, joint managing director of Japanese Knotweed Control. Network Rail should then "categorise areas as low, medium and high risk, especially with potential threat to property or cross contamination". He adds: "The problem is not insurmountable if the correct herbicide is applied correctly by the right method and at the right time of year."
It is thought that there have been other cases but they have been settled out of court. "I do think this is a landmark case because it's public," says Clough. "Other landowners will be having very nervous moments."
Network Rail is not alone in having vast tracts of land that could be infected with Japanese knotweed. Waterways and highways authorities, local authorities, housing associations, property developers and Government departments are among those likely to have issues due to the success of the invasive species, says Hodgson.
The Government looked into a national eradication programme but in 2015 ministers accepted that the cost of £1.5bn would be "prohibitively expensive".
Clough says landowners' response to the problem is "massively varied". He adds: "Some are very good and some very responsible, some have plans, some are reactive and some do nothing at all. Let's face it, even those large landowners that are well motivated and want to operate within the law, they have a huge uphill battle. They don't know where all the problems are and they don't know where their next claim is going to come from. It would take a monumental effort even they knew where it all was to programme treatments on that scale."
He says similar claims against local authorities could be particularly challenging, given the local authority financial situation at the moment. "The money's got to come from somewhere."
According to Knotweed Control Swansea director Jo Mullett, whose business operates not far from Maesteg, the case is "potentially huge for Network Rail or any landowner. It's the first case that I've heard of. There isn't much in case law.
She adds: "I don't know whether there will be more work but there will be more awareness. It's good that there are more people getting qualified in knotweed control. For me it's going to get busier. I'm that step ahead than some other contractors because I'm certified and a member of the PCA, and that has the TrustMark."
Hodgson agrees that those who are properly qualified are in a good position to capitalise on any business opportunities that come up, and that landowners should be careful to follow best practice and choose professional contractors. "We have the means of really targeting, combating and controlling Japanese knotweed in the environment," he says. "The professional sector has invested time and money doing that. This should be the opportunity to reap the rewards."
Standards - Codes of practice
Trade body INSSA and the PCA's invasive weed group have their own codes of practice upholding standards and membership is dependent on them. Both are also members of the Amenity Forum, which expects members to follow its code of practice and "Ten Golden Rules". The PCA was also a founder operative member of the Government-backed TrustMark scheme, for which its members are assessed. Mortgage lenders often look for a knotweed removal contractor to be covered by an insurance backed guarantee (IBG) so that if there is regrowth during the IBG period the contractor provides further treatment for free.