International Invasive Weed Conference: Risk, Roots & Research. Some Legal Considerations by Leo Charalambides 1

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1 Property Care Association, London, 22 nd November, 2016 International Invasive Weed Conference: Risk, Roots & Research Some Legal Considerations by Leo Charalambides 1 Session 1, Risk: an examination of the legal landscape around controlling and managing non-native species. In this session I will give an overview of the established principles of private nuisance in respect of trees, hedges and roots and ask how these principles might be applied in the context of controlling and managing Japanese Knotweed. Secondly I will briefly introduce the species control agreements and order introduced by the Infrastructure Act 2015 and also the role of the Community Protection Notice pursuant to the Anti-social Behaviour, Crime and Policing Act Due to the limited time I have setout the background information in this Briefing Note Nuisance (Private Nuisance) 1. A nuisance occurs where a landowner uses his land in a way that causes an unreasonable interference with the land of another usually (but not essentially) an adjoining neighbour. The importance of the law of nuisance in regulating the conduct of neighbours is immediately apparent. A person whose neighbour interferes with his quality of life by carrying out some noxious activity on his property may succeed in putting a stop to the unreasonable conduct by suing in the tort of nuisance and seeking an injunction within the proceedings. 2. The right of an action in nuisance is closely allied to other causes of action such as trespass, negligence and the so-called rule in Rylands v Fletcher (1868) LR 3 HL 330, which concerns a particular form of nuisance. The rule in Rylands v Fletcher may be invoked to formulate a cause of action where a person, for his own purposes, brings onto his land and keeps there anything likely to cause 1 Barrister, Francis Taylor Building. Leo.charalambides@ftb.eu.com leo.charalambides@ftbchambers.co.uk 2 Cf: Robin Payne, Non-native specialist. 1

2 damage if it escapes. If it does escape, the owner is liable for all damage naturally flowing therefrom. 3. Where the nuisance does not cause any actual physical damage, but affects a neighbour s enjoyment of his land, it is an actionable nuisance only if, when judged by the standards of the average person, it can be said to be a real interference with the comfort and convenience of living and using the land. 4. In nuisance that cause damage to land, as opposed to interfering with the use and enjoyment of land, it is necessary to prove actual physical damage to establish the cause of action. Anticipated damage is insufficient, but if the actual damage is imminent, an injunction may be obtained to prevent the damage from occurring. 5. Where the nuisance consists of encroachment, such as overhanging tree branches, no actual damage is necessary. In such cases damage will be presumed by the law. In nuisance which affects the enjoyment of land, damages are awarded to compensate for the discomfort which has been inflicted on the claimant. 6. Where nuisance causes damage to property, the measure of damages is the diminution in value of the property brought about by the nuisance, rather than the cost of rectifying the damage. Trees & Hedges 7. It is well known that at common law a landowner may lop the branches if his neighbour s tree of they grow over the boundary onto his land; the same principle applies to hedges. Strictly speaking, the person who lops his neighbour s brnaches should the return the lopped pieces of branch to his neighbour s land [*]. This freedom to lop overhanging branches arises from a landowners right at common law to take reasonable steps to abate a nuisance. 8. Encroaching roots are treated in the same way as overhanging branches. So a landowner is entitled to cut encroaching roots If the overhanging branches are poisonous, the owner of the tree is liable in nuisance if his neighbour s cattle or horses eat the branches (Crowhurst v Amersham Burial Board (1878) 4 Ex D 5 at 10). 10. The Wildlife and Countryside Act 1981 makes it an offence to plant or otherwise encourage the growth of Japanese knotweed, and so cutting the plant 3 For a recent authority see: Hurst v Hampshire County Council [1997] 2 EGLR 164 (CA). 2

3 or roots or disturbing the soil where it is growing could constitute an offence if not carried out correctly, (s 14(2)). 11. Further, Japanese knotweed plants, and the soil in which ther have grown, are classified as controlled waste, and a landowner who seeks to dispose of any such plants or polluted soil must comply with the Environmental Protection Act 1990, the Waste (England and Wales) Regulations Roots 12. Tree roots rarely cause damage by physically penetrating a building or its foundations. Damage is more likely to be the result of moisture being taken from the soil by tree roots during dry periods, causing foundations to move. This in turn may result in the walls of a building cracking by means of subsidence. At other times of the year the subsoil may recover and swell back up, causing what is known as heave, as opposed to subsidence. A building so affected may require its foundations to be underpinned; it may also be necessary for the tree to be removed, although this may also cause extreme heave to take place. 13. Where actual damage is being casued to a neighbouring property by branches or roots encroaching from trees on the adjoining owner s property, an action in nuisance may be brought. Damage and an injunction may be sought, provided the tree owner has, or ought ot have, knowledge of the problem and the consequent danger (see Smith v Giddy [1904] 2 KB 448, and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55). In the Delaware Mansions case the House of Lords, Lord Cooke [38] said that the law could be: summed up in the proposition that, where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it. 14. Thus a landowner is not liable in nuisance if he is unawares of the nuisance and has not been given an opportunity to abate it. 15. Encroaching roots are treated in the same way as overhanging branches. So a landowner is entitled to cut encroaching roots. This is because an affected owner has a common law right to abate the nuisance. There are limits to the self-help remedy: if a party has alternative ways of abating a nuisance, the less damaging method must be adopted (see Dayani v Bromley London Borough Council (no 2) [2001] BLR 503 (QBD)). 4 4 For example, where the neighbour s Virginia Creeper spreads onto an adjoining owners brickwork and causes damage to the brick work, the affected owner would be in order to remove and cut back the plant to the boundary of the two houses. 3

4 Weeds 16. The Weeds Act 1959 makes it an offence to allow certain types of weed to spread from a piece of land, if the department or the local authority, acting on behalf of the Minister, has served a notice requiring the recipient to prevent the weeds from spreading the weeds concerned are designated injurious weeds 5 (s 1 (2)). Japanese Knotweed is not a designated injurious weed under the Weeds Act Practically[*] the provisions of the Weeds Act 1959 have been replaced by the Anti-social Behaviour. Crime and Policing Act 2014 (see below). 18. An adjoining owner may bring an action in nuisance and/or negligence against the offending neighbour, provided he can prove that he has suffered damage as a result of the spread of injurious weeds from his neighbour s property this is not limited to the injurious weeds designated under the 1959 Act but may encompass any damage causing weeds. This is a conclusion drawn from the case of Leaky v National Trust [1980] QB 485, where a landowner was held liable for the fall of earth due to natural causes from a steep bank causing damage on his neighbour s land. Thus in my view a landowner may be liable for the natural spread of Japanese Knotweed from his land to that of his neighbour. 19. Presumably liability does not lie until the offending landowner has notice of the damage being caused by the spread of weeds from his land, and has been given the opportunity to remedy the situation (cf encroaching tree roots). The issue of actual versus constructive notice is a matter that has not been addressed to what extent ought laypersons and professionals be aware of Japanese Knotweed? 20. Presumably where the injurious weeds have yet to spread across the boundary but the prospect of an imminent or likely spread arises an injunction may be obtained from the spread occurring to prevent imminent damage. 21. In the New Zealand case of French v Auckland City Council [1974] 1 NZLR 340, the defendant was found liable for damage caused by thistles growing from seed which had blown fro neighbouring land. 6 All the circumstances had to be taken into account, including: 5 Spear thistle, creeping or field thistle, cured dock, broadleaved dock and ragwort are prescribed injurious weeds. 6 See also, Tutton V A D Walter [1986] QB 61 where it was held that a farmer can owe a duty of care to neighbouring bee keepers when spraying crops. 4

5 The extent of the spread of weeds; The damage likely to be caused; The location of the properties; and The cost and practicality of preventing the spread. 22. Note the Scotts case of Cumbusmore Estate Trustees v Little [1991] SLT (land Ct) 33 where a failure to eradicate weeds has helped to found a claim against a tenant farmer for a certificate of bad husbandry. Further Causes of Action 23. Additionally regard may be had to Professional Negligence, where, for example, a surveyor has failed to identify and address Japanese Knotweed on a particular site. 7 See: o RICS, Japanese Knotweed and residential property, Information Paper (2012) o Property Care Association, Japanese knotweed. A guide to the problems caused by Japanese knotweed and how to deal with them (2014) o Environment Agency, Managing Japanese knotweed on development sites: the knotweed code of practice (2013) WITHDRAWN. 24. Also, Misrepresentation, where, for example, the vendor of a property has not identified and addressed the presence of Japanese Knotweed on a particular site. Statute Law 26. [1] The Wildlife and Countryside Act 1981, s 14(2) makes it an offence for any person to plant or otherwise cause to grow in the wild any plant included in Part II, Sch 9 of the Act Japanese Knotweed is included in the schedule. 27. The Infrastructure Act 2015 has amended the WCA 1981 to include a new s 14(4A) and Sch 9A to enable species control agreements and order to be made by environmental authorities to ensure that landowners take action on invasive non-native species, or permit others to enter the land and carry out those operations, to prevent their establishment or spread. 7 Cf: James Ginley, Head of Professional Risk, Legal & general Surveying Services. 5

6 28. Some commentary has suggested that these new powers are appropriate for use in response to remove newly arrived non-native species, or to deal with those of a restricted distribution, and not deal with invasive non-native species that have become widespread. I do not agree. This is not the view taken by the Home Office (see below). 29. [2] The Anti-social Behaviour, Crime and Policing Act 2014, the Act allows for Community Protection Notices to be issued by a local authority or the Police against individuals or businesses who are acting unreasonably and who persistently or continually act in a way that has a detrimental effect on the quality of life of those in the locality (ss 43 58). 30. The Home Office has advised: Invasive non-native plants are those species which have been introduced to areas outside their normal range by humans and have the ability to spread and pose serious threats to biodiversity, the economy and human health. The invasive non-native plants that cause serious problems include Japanese knotweed 31. The Home Office further advises that the Community Protection Notice can be used to require someone to control or prevent growth of Japanese knotweed or other plants that are capable of causing serious problems to communities. The test is that the conduct or the individual or body having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality, and that the conduct is unreasonable. Under section 57 of the Act, conduct includes a failure to act. Leo Charalambides Francis Taylor Building Inner Temple 25 th October,