JAPANESE KNOTWEED UK LAW.

— THE LAW IN ENGLAND AND WALES

Knotweed Services (UK) Ltd has been a distinguished leader and specialist in Japanese Knotweed removal for over 10 years. As the go-to authority on Japanese Knotweed matters, our expertise and industry recognition often see us provide expert opinions in legal proceedings. This guide has been designed to give you a thorough understanding of your legal responsibilities related to Japanese Knotweed.

A common concern raised by our clients is whether they are breaking the law by having Japanese Knotweed growing on their property. We can inform you that simply having Japanese Knotweed on your land does not constitute a legal offence. However, if you allow its uncontrolled growth to spread and encroach on neighbouring properties, you may expose yourself to civil litigation, potentially incurring prohibitive costs.

There are multiple legislations established to regulate and control the disposal and planting of Japanese Knotweed. Interestingly, many people are taken aback when they realize that having Japanese Knotweed on their land is not an illegal act and that it is not categorized as a notifiable weed. As such, there is no requirement to inform local authorities about its presence on your property.

Our PCA-certified team at Knotweed Services (UK) Ltd is dedicated to offering clear, concise, and timely information regarding Japanese Knotweed removal services. With our tailored approach and commitment to adhere to industry standards, we endeavour to address each client’s unique requirements and concerns. We provide valuable tips on identifying Japanese Knotweed and emphasize the importance of professional removal services to efficiently and effectively manage this invasive plant.

We take pride in our success stories and aspire to provide customer satisfaction by showcasing our role as a trusted industry leader. Let us be your reliable partner in navigating the legal aspects of Japanese Knotweed, all while ensuring a stress-free and confidence-inspiring experience.

SCHEDULE 9 WILDLIFE AND COUNTRYSIDE ACT OF 1981

The wildlife and Countryside Act, deems it’s an offence to plant or otherwise cause to grow Schedule 9 species (Japanese Knotweed is classed as a Schedule 9 species) in the wild, punishable by fines or imprisonment.
If it can be shown that a Schedule 9 plant has spread from a landowner’s property onto another property, then the landowner could be considered responsible for any damage caused and the costs of control.
However, if landowners take all reasonable steps and exercise all due diligence to avoid spreading the plant, then they will be better protected against prosecution.
In order to reduce the potential of fines/prosecution, landowners should have a management plan for schedule 9 species on their property and be able to show that they are following it.

THE ENVIRONMENTAL PROTECTION ACT OF 1990

Waste containing any part of a Schedule 9 plant that could facilitate the spread of the species is classified as controlled waste. It should be disposed of at a suitable waste facility, accompanied by appropriate Waste Transfer documentation!
You cannot just dispose of Japanese Knotweed by putting it in the bin, nor can you take it to the local waste management site.
All producers, carriers and waste facilities have a duty of care to ensure that the waste is handled and treated properly.
Knotweed Services (UK) Ltd can legally and correctly dispose of your Japanese Knotweed during the treatment and control process. This takes all the pressure away from the landowner.

The Town & Country Planning Act
1974

Dealing with invasive species like Japanese Knotweed is not just a matter of safeguarding property value, but it also has a critical legal dimension to it. In this context, the Town & Country Planning Act (TCPA), specifically section 215, plays a significant role.

Under the TCPA section 215, local authorities are vested with powers to compel landowners to clean up their land, particularly if it has become detrimental to local amenities – this includes land infested with Japanese Knotweed. Therefore, landowners have a legal responsibility to handle the Japanese Knotweed problem, ensuring their land does not negatively impact the local environment or devalue neighbouring properties.

Furthermore, the TCPA is an imperative regulatory tool for Local Planning Authorities during development activities. They often incorporate clauses from the Act into planning conditions to mandate developers to engage in proper remediation of sites plagued with Japanese Knotweed.

What developers should note here is the emphasis on ‘proper’ remediation. Merely excavating the topsoil is not sufficient, as Japanese Knotweed can regenerate from fragments as small as 0.7 grams. It is essential to have a comprehensive approach that includes detecting and treating all traces of the plant adhering to the best practices outlined by reputable and certified bodies such as the PCA.

Navigating these responsibilities can be complicated for landowners and developers. However, being aware of the legal requirements surrounding Japanese Knotweed infestation is a good starting point. Taking advice from a certified and PCA-accredited Japanese Knotweed removal service provider, such as Knotweed Services (UK) Ltd, can undoubtedly make the task easier. Our team of experts understands the industry standards and regulations. It can provide effective, tailored solutions to remediate your land efficiently and legally, helping maintain local property values and the integrity of your investment.

Anti-Social Behaviour, Crime and Policing Act 2014

Part 4 of the Anti-social Behaviour, Crime and Policing Act introduced two vital components that relate directly to controlling invasive plants like Japanese Knotweed – Community Protection Notices and Remedial Orders.

A Community Protection Notice (CPN) is an authoritative tool that may be used against people behaving unreasonably. Such conduct must be of a persistent or continual nature that detrimentally impacts the quality of life of those residing in that particular vicinity.

The Anti-social Behaviour, Crime and Policing Act of 2014 does not mention Japanese Knotweed or similar invasive non-native plants directly. The omission is intentional, conferring flexible powers to the Act, enabling it to address a broad range of issues significantly affecting community life.

However, this lack of explicit mention does not mean Japanese Knotweed and other troublesome plants fall outside the scope of the Act. On the contrary, the Act empowers frontline professionals to curb or prevent any conduct – inclusive of the growth and spread of such invasive plants – that meets the legal test and adversely affects communities.

Accordingly, a CPN can be issued to obligate a person to control or inhibit the growth of Japanese Knotweed or other likely problematic plants. The criteria for issuing the CPN includes unreasonable conduct that persistently or continually degrades residents’ quality of life.

Crucially, the Act’s section 57 specifies that “conduct” encompasses both active and passive behaviour. In other words, a “failure to act” – such as neglecting the responsibility to control invasive plants like Japanese Knotweed – can be grounds for the issuance of a CPN.

WE WORK EXCLUSIVELY WITH THE FOLLOWING SOLICITORS

Civil Law and Japanese Knotweed: Understanding the Legal Implications

The presence of Japanese Knotweed on a property brings with it a host of legal implications and potential consequences that may impact various parties associated with the land and buildings, such as neighbours, landlords, tenants, buyers, and sellers. Knotweed Services (UK) Ltd is here to provide you with comprehensive information and highlight the importance of addressing the issue professionally.

encroachment

If Japanese Knotweed were to proliferate from a property owner’s land to an adjacent one, it could potentially result in a legal challenge by the affected neighbour. This is rooted in the nuisance principle in common law, which mandates that an owner must take judicious measures to avert any nuisance originating from his premises that could cause damage to surrounding properties.

Generally speaking, an owner’s liability is typically invoked once they have been informed, or reasonably should have been informed, about the issue. However, a pertinent legal discourse suggests that if a landowner knowingly introduces Japanese Knotweed to their property which subsequently invades neighbouring premises, he may bear strict liability towards his neighbour. This holds true irrespective of the reasonableness of the actions he has taken to hinder its proliferation.

In any scenario, the claim would likely seek monetary damages to cover the costs needed for remediation on the neighbour’s premises and/or a court injunction necessitating the landowner to initiate remedial efforts.

The relationship between landlords and tenants adds another layer to this situation. Depending on the lease wording and if the Japanese Knotweed existed when entering the lease, a tenant could inadvertently find themselves liable to their landlord for treating or removing Japanese Knotweed from the said leased property.

A case that underscores the severity of this issue is the precedent-setting Waistell vs. Network Rail ruling in February 2016. The presiding judge, Recorder Grubb, concluded that Mr. Waistell had rightly claimed private nuisance against Network Rail. The ruling established that not only had Mr Waistell’s property experienced intrusion, but the simple existence of Knotweed on Network Rail’s land constituted as actionable interference with Mr Waistell’s ability to use and enjoy his property. Consequently, Mr. Waistell was compensated for the treatment costs and any residual decrease in his property value post-remediation.

This landmark case serves as a reminder to large landowners about their responsibility. It imposes upon them an explicit duty to ensure their property’s Knotweed does not impede neighbouring landowners in fetching market value for their properties. Non-compliance risks costly damages claims for treating Knotweed and for any residual property value depreciation.

misrepresentation

In this scenario, let us consider the concept of a misrepresentation. This can be defined as a deceptive statement of truth (concerning the existence of Japanese Knotweed) shared by the property seller with the prospective buyer. This information needs to be corrected for the buyer’s decision to purchase the property, leading them to incur losses. Notably, misrepresentation can be one of the factors convincing the buyer to proceed with the transaction.

An essential reference in this matter is ‘The Law Society’s Property Information Form’ (TA6). Specifically, question 7.8 mandates the seller to disclose whether Japanese Knotweed infests the property for sale.

The exact query is:

“Is the property affected by Japanese knotweed?”

And the seller has three available responses to choose from: ‘Yes’, ‘No’ or ‘Not known’.

Suppose the seller marks either ‘No’ or ‘Not known’ while being aware of the Knotweed infestation; in that case, they could likely be held accountable for fraudulent misrepresentation.

On the other hand, if the seller was expected to be aware of the Knotweed’s presence or strived to confirm their suspicion but didn’t, or if they indicated ‘No’ without any feasible basis to deny Japanese Knotweed’s existence on the property, then they could likely be found guilty of negligent misrepresentation. A negligent misrepresentation example could be a situation where the seller knew about vegetative growth on the property but did not take measures to correctly identify it before completing the TA6 form.

At Knotweed Services (UK) Ltd, we emphasise aiding our clients in traversing these intricacies with our PCA-certified expertise. We stress the significance of professional action when it comes to Japanese Knotweed and ensure our clients receive comprehensive, tailored solutions.

By providing information to understand and identify Japanese Knotweed and offering reliable removal services, we aim to instil confidence in property owners, buyers, and tenants. We put our client’s unique concerns first, and their satisfaction is our ultimate goal. Be it clarifications relating to Japanese Knotweed or sharing our successful removal stories, we uphold our position as a trusted industry leader.

But what if I don’t know if there is Japanese Knotweed?

Don’t worry, we can conduct a site survey to find out.

We would highly recommend that anybody buying or selling property has a Japanese Knotweed survey. It prevents later compensation or misrepresentation claims for sellers and ensures the sale goes through fairly swiftly.

Not declaring Japanese Knotweed has, in our experience, only caused problems. We have seen cases where purchases have been seriously delayed and in some cases, even cancelled.

DEAL WITH IT EARLY AND YOU WILL FAIR BETTER!

THE LAW: BUYING AND SELLING PROPERTY

The presence of Japanese Knotweed on, or in, close proximity to a property can create difficulties for those wishing to sell their property; and for buyers wishing to secure mortgage finances.

SELLERS

It is your legal responsibility to declare if your property is affected by Japanese Knotweed on the TA6 form. You will also be asked to enclose a copy of a management plan should you have one in place. In instances where Knotweed is not declared many lenders will still request a site survey and report.

The TA6 form should be filled in accurately as inaccurate answers can lead to the buyer seeking compensation for misrepresentation. If you are unsure if the property has Japanese Knotweed, we would always advise a Japanese Knotweed Survey is conducted.

BUYERS

The known presence of Japanese Knotweed should be declared on the TA6 form. Mortgage lenders require a professional management plan with an Insurance Backed Guarantee before they will lend.

If you think the seller has given inaccurate information on their TA6 we recommend seeking legal advice as you may have a claim for misrepresentation.

NEIGHBOURS

All home owners have a legal responsibility to stop JKW encroaching onto neighbouring property. And as such, the Local Authority have it in their power to issue a Community Protection Notice (CPN) to those home owners refusing to do anything about the JKW on their property, which ultimately threatens court proceedings if no action is taken.

If Japanese Knotweed is identified on neighbouring property, we would always advise discussing the situation in the first instance and addressing the legalities before taking action with the local authority.

OTHER QUESTIONS

What should I do if my neighbour has Japanese knotweed?

While housing Japanese knotweed on your property is not a criminal offence in itself, some scenarios can potentially cross into the realm of criminal acts, making it a serious matter that deserves your full attention. At Knotweed Services (UK) Ltd, we understand that this might seem overwhelming. As a trusted authority on these matters, we aim to equip you with the facts, demystifying the intricacies of Japanese knotweed and the legal landscape surrounding it.

One frequent question we encounter: Can I sue my neighbour for Japanese knotweed? To put it simply, if Japanese knotweed has spread to your land from your neighbour’s property, you could have a case under civil nuisance law. This type of claim requires the claimant to prove two primary aspects: first, the knotweed emanated from the neighbouring land, and second, the knotweed is causing a “nuisance” to the property owner.

However, here’s where things get complex. Pinpointing the origin of Japanese knotweed can be challenging. In such cases, an expert can assist by providing an opinion based on the “balance of probabilities” standard, which is the proof test applied in civil law. A site survey from a PCA-certified specialist can effectively establish this claim.

Importantly, even if these conditions are met, the claim can potentially fail if the owner of the adjoining land (the defendant) can demonstrate that they are taking reasonable and timely measures to mitigate the nuisance. However, some methods are deemed unreasonable, such as prolonged treatment programmes that restrict property usage over extended periods.

In addition, a common omission in many discussions around Japanese knotweed encroachment is the potential impact on property value and insurability. The presence of Japanese knotweed can make properties harder to sell, and insure and may affect mortgage eligibility. Therefore, swift and professional management of the issue is of paramount importance to safeguard your investment.

Defending yourself from potential encroachment requires a good understanding of these matters and, more importantly, the right assistance. When you work with Knotweed Services (UK) Ltd, you’ll have access to Japanese knotweed expert witness services in accordance with the Civil Procedure Rules (CPR 35). We can also connect you with lawyers who specialize in Japanese knotweed disputes.

Remember, Japanese knotweed is not just a neighbourhood annoyance—when not properly managed, its ramifications can extend to legal implications. Do you think you are a victim of encroachment? We’re here to help. Our success stories testify to our unwavering dedication to customer satisfaction. Let our PCA-certified expertise and industry-leading services provide the solution you need.

How to report sightings of Japanese knotweed

Once a specialist has identified the presence of Japanese Knotweed, it then becomes important to ensure that all other relevant parties are notified of the problem — for example, any neighbouring properties or land.

For an in-depth guide and answer – read our How To Report Japanese Knotweed guide.

Environmental Protection (Duty of Care) Regulations 1991

The Environmental Protection (Duty of Care) Regulations 1991 imposes specific duties related to waste management, which have relevance to the handling and disposal of Japanese Knotweed.

Japanese Knotweed is classified as a ‘controlled waste,’ and thus, when dealing with its disposal, one must comply with the obligations under the Environmental Protection (Duty of Care) Regulations 1991. It highlights that Japanese Knotweed materials and the soil contaminated with it must be disposed of safely at a licensed landfill site. When these materials are being transported for disposal, it must be covered with Waste Transfer notes describing the waste.

Notably, soil containing the rhizome of Japanese Knotweed is considered contaminated, and when moved off-site, it should be treated accordingly within the EPA standards. In cases of non-compliance with these obligations, such as improper transport of the ‘controlled waste’ by an unregistered carrier, it might lead to a criminal offence.

In summary, the Environmental Protection (Duty of Care) Regulations 1991 stipulates the correct practices in place regarding the treatment, management, and disposal of controlled waste like Japanese Knotweed to mitigate its damaging effects on the environment.

What laws govern spraying Japanese knotweed with chemicals?

At Knotweed Services (UK) Ltd, we understand that addressing Japanese Knotweed concerns is of utmost importance to property owners. To ensure that the process is conducted safely and responsibly, it is essential to be well-informed about the regulations governing the treatment and disposal of this invasive plant. Our team of PCA-certified experts are committed to The Environmental Protection Act 1990 outlines guidelines for the off-site disposal of Japanese Knotweed. As specified in the Waste Regulations 2011, waste carriers must be licensed, and waste disposal must occur at a licensed facility. Appropriate transfer notes documenting the disposal process need to be completed and retained for future reference.

If Japanese Knotweed is removed without prior chemical treatment, it is not classified as hazardous waste. However, when certain pesticides are used, the waste is categorised as hazardous and requires a consignment note in accordance with the Hazardous Waste Regulations 2005. Our knowledgeable team can help you navigate these complex regulations to ensure full compliance.

It is critical to note that in 2013, the UK government announced that individuals who fail to control Japanese Knotweed or other invasive weeds could face an Anti-Social Behaviour Order (ASBO). Fines may be imposed, ranging from £100 on-the-spot penalties to £2,500 if prosecuted. In cases where companies are found guilty, fines may be as high as £20,000.

Is Japanese knotweed illegal?

In short – no, it’s not illegal to have Japanese Knotweed on your land. However, the scenarios presented below call for legal obligation adherence and depict instances where criminal offences could occur:

Unrestricted Propagation: Deliberately enabling Japanese knotweed to diffuse into wild areas or adjacent properties could land you in legal trouble. According to the Wildlife and Countryside Act 1981, inducing the growth of Japanese knotweed in the wild is considered a criminal offence. To avoid this, it’s essential to manage Japanese Knotweed infestations promptly, safeguarding both your and the public interest.
Improper Disposal: Japanese knotweed is considered controlled waste, necessitating proper disposal via a registered waste carrier to a licensed landfill site. Not honouring this legal obligation of appropriate disposal could result in a violation of the Environment Protection Act 1990, which advocates a “duty of care” concept for controlled waste handling.
This duty of care extends beyond merely transporting the waste safely. It advocates for a systematic approach to storage, treatment before disposal, and its eventual disposal in a licenced landfill site. An important factor often overlooked is that the infested soils around Japanese Knotweed are also classified as controlled waste, requiring identical care and adherence to disposal standards.

It’s important to delve deeper into Japanese Knotweed’s consideration as “controlled waste”. Contradictory to popular belief, this does not exclusively pertain to the plant’s viable components. It also extends to any contaminated soil or garden waste tainted with this invasive species. Hence, effective and comprehensive removal isn’t limited to the visible parts of the plant but must include a thorough decontamination of the affected areas.