North West council wins county court battle over cost of eradication of Japanese knotweed

His Honour Judge Pearce, sitting in the County Court, held in his judgment that the council was not liable for costs of treating the invasive weed at the property owned by the respondent/claimant.

The claimant sought damages and injunctive relief for nuisance from the weed and the £2,635 cost of eradication.

At an initial county court hearing Judge Powell found that the continued presence of the weed for several years after Wigan became aware of it was a continuing nuisance giving rise to a liability for remediation costs.

Wigan appealed on the grounds that Judge Powell was wrong both to find that the weed’s encroachment was a continuing nuisance and that the claimant was entitled to recover treatment costs.

HHJ Pearce said three factors pointed in favour of Wigan’s argument that to succeed the claimant must be able to point to evidence that it was Wigan’s breach of duty that led to the loss.

He said the presence of knotweed on Wigan’s land from 2018 may be its responsibility but this was not causing undue interference with the claimant’s use and enjoyment of her land.

That interference was caused by the presence of knotweed, which was on the claimant's own land.

“Thus, the cause of the loss lies outside of the scope of activity for which a neighbouring landowner such as [Wigan] can be liable”, the judge said.

He said that if the claimant were right “it would have a striking consequence for the nature of liability for the tort of private nuisance.

“Whilst tort law is generally concerned, as its name would suggest, with a liability that is fault-based, the liability here would be independent of fault, with the landowner liable to compensate for damage to a neighbour's land through an obligation to meet remedial costs that could not have been avoided by the landowner taking greater care since the damage which led to the need to incur remedial costs, namely the spread of [knotweed] onto the claimant's land, was caused before [Wigan] is to be blamed for not dealing with it.”

HHJ Pearce said if this had been accepted “the landowner's liability would arise at a time where the only way that he could effectively abate the nuisance would be to go onto the claimant's land to eradicate the [knotweed] that had already spread there; thus the focus would not be on the defendant's use of its own land but rather on the actions it was able to take on someone else's land.”

He said it was “perfectly possible” that Wigan would not know of the spread of knotweed to the neighbour's land and so did not know of any liability to eradicate.

The judge said it was “sadly the case that landowners sometimes have to fund remedial work that they could not have avoided but for which no one else is liable”.

Allowing the appeal, he said no losses arose after Wigan became in breach of duty by reason of its failure to act as a reasonable neighbour by eradicating knotweed of which it knew or ought to have known, with “the [knotweed having by then already spread to the claimant's land”.

Mark Smulian