Japanese claims against assemblers being on the rise, the results of Network Rail’s appeal against the lower court’s decision in the case brought by two owners, MM. Williams and Waistell were eagerly awaited.
Unfortunately, nothing in the recent judgment offers comfort crumbs to real estate professionals and their PI insurers. Instead, some of their lords’ observations about the threat of this long-lasting invasion may stir up the flames for those who wish to complain wherever the plant rests. This can simply be seen as professional negligence claims. Real estate agents and surveyors must be careful and ensure that there are adequate systems to minimize the risk of exposure to these types of claims.
- The applicants, Mr Williams and Mr Waistell, own two adjacent bungalows in Maesteg, South Wales, and the bungalows back onto a railway cutting which is a property of Network Rail Infrastructure (“NRI”). The Japanese court gave up their properties and, after unsuccessful attempts to eliminate the problem, the Claimants sued the NRI.
- The plaintiffs sought a court order directing NRI (Network Rail Infrastructure v Williams) to treat and eliminate knotweed on their lands, as well as damage caused to varying levels of losses.
The annoying complaint was presented on two alternative bases:
- Encroachment: claiming that the NRI was responsible for occupying the territory where the knotweed was present for its invasion of the plaintiffs land;
- Loss of Amenity/ Quiet environment: Affirming that the presence of the knotweed around the plaintiffs’ lands constituted a sufficiently serious interference with the peaceful enjoyment and enjoyment of their properties to constitute a nuisance that could give rise to legal action since its presence has affected the ability to sell properties at market value.
In the first case, the encroachment claim was rejected because to constitute a nuisance liable to prosecution, there must be real physical damage and none has been established. However, the silent claim of pleasure/loss of amenity was successful because the loss of convenience could include the decrease resulting from the Claimants’ inability to dispose of their property at an appropriate value.
As a result, the Court of Appeal realized that NRI violated this obligation, which caused unrest and permanent damage. Although he found it inappropriate to grant a court order for NRI to treat the knotweed, he attributed the following damages:
- £ 4,320 for each claimant to cover an insured treatment package;
- £ 300 to Mr Waistell for the costs of a survey of knotweed;
- General damage of £ 350 per year (£ 1,400 total in the case for loss of convenience and interference with quiet enjoyment);
- £ 10,500 for Mr Williams and £ 10,000 for Mr Waistell for residual impairment after treatment
The NRI appealed for two reasons:
- To challenge the Court’s conclusion that the mere presence of knotweed on lands adjacent to the applicants’ properties was an undesirable nuisance simply because the market value of their properties had decreased; and
- Challenge to the Court’s finding that there was a causal link between a breach of NRI’s obligation and the residual decrease in the value of the properties.
The Court of Appeal clarified that the purpose of the crime was not to protect the value of the property as a financial asset, but to protect the owner in its use and enjoyment of the land. The County Court’s decision was erroneous in that it extended the unlawful act for purely economic damages.
However, in admitting this part of the appeal, the Court of Appeal concluded that the result of the first instance was justified for reasons other than those originally filed.
NRI was fully aware of the presence of knotweed on their lands behind the applicants’ properties in 2013 and was (or should have been aware) of the risk of damage and loss of amenities to adjacent properties, caused by the proximity of knotweeds at most late in 2012 and did not reasonably prevent any interference with the enjoyment of the assets of the claims. In short, professional negligence claims can be seen as right.
As a result, this was ok to create a cause of action in circumstances where, in addition to the risk of future property damage to the buildings, the presence of knotweed posed an immediate stress/ burden to the applicants. Since such a charge clearly affected applicants’ ability to use and fully enjoy their property. It was a classic example of interference in the value of the land.
This result on Network Rail Infrastructure v Williams and Waistell meant that the second ground of appeal had disappeared and that the lordship was not willing to admit any new evidence regarding the precise impact on the amount that had not been produced at the first hearing.