An update on land contamination

Since our original article (Land Remediation Relief) there has been a landmark ruling against Network Rail in relation to Japanese Knotweed ("knotweed"). This may have far-reaching implications for major landowners and developers alike and should act as a good incentive to deal with contamination (including knotweed) at the earliest opportunity.

Two adjoining landowners, Mr. Williams and Mr. Waistell, sued Network Rail Infrastructure Limited ("Network Rail") in the tort of private nuisance for the presence of knotweed on Network Rail land immediately behind their properties which prevented them from selling their properties for proper market value. They sought an injunction to require Network Rail to treat and eliminate the knotweed on its land and damages for the diminution in value of their respective properties. They also sought damages for consequential loss including (as an alternative to an injunction) the cost of treating the knotweed and an insurance-backed guarantee.

Interestingly the Court rejected the argument that Network Rail were liable as the occupier of the land where the knotweed is present for its encroachment upon the adjoining land. This is because there was no evidence of damage to the properties from the encroachment of knotweed. Based on previous case law the Court found that evidence of damage was a necessary requirement for encroachment cases.

The claimants were successful in their argument that the presence of knotweed in close proximity to the boundary of their respective properties represented a sufficiently serious interference with the quiet enjoyment of their land so as to constitute an actionable nuisance. Network Rail were found to be in breach of this duty for the following reasons:

  1. Network Rail had constructive knowledge of the risk of spread and consequential damage to the claimants' property from around 2012 / 2013;

  2. Network Rail had failed to carry out its obligations as a reasonable landowner to eliminate and prevent the interference with the quiet enjoyment of both claimants of their land.

The Court had no problem in finding a causal connection between Network Rail's breach of duty and the unlawful interference with the claimants' quiet enjoyment of their respective land. This had the effect of reducing the market value of the properties.

The above finding is particularly serious in that the knotweed was merely "within close proximity" of the claimants' properties. In this case, evidence was presented to the Court that lenders would not agree to lend on the security of a property within 7 metres of knotweed.

The claimants were not entitled to a mandatory injunction compelling Network Rail to abate the nuisance and adequately treat the knotweed but they were instead entitled to recover damages in respect of a treatment programme and insurance backed guarantee and in respect of a residual diminution in value of their respective properties. The Court found that, even if the knotweed was treated and supported by an insurance-backed guarantee there would still be a diminution to the amenity value due to the stigma surrounding knotweed.

This ruling is particularly significant as the knotweed was an actionable nuisance before it caused actual damage to the neighbouring properties, simply because of its effect on the amenity value and the consequential diminution in value.

If you would like more information or advice on this issue, please contact Amy O'Gorman in our Real Estate team.