COMPANIES: LIABILITY FOR NUISANCE
Study Unit
COMPANIES: LIABILITY FOR NUISANCE ~26 min
The article below is by UK law firm Hodge Jones & Allen and deals with a recent development in the law on nuisance.
(A) A County Court judge, Recorder Grubb, gave a judgment in Waistell v Network Rail Infrastructure Limited (2017) in what is thought to be the first decided claim for damages arising from the existence of Japanese Knotweed on a neighbour’s land. Although it is not a binding decision, it could open the floodgates for a large number of other claims, if it is challenged in the higher courts and upheld.
(B) What is Japanese Knotweed? Japanese Knotweed (JKW) is a bamboo-like plant that is very strong and grows incredibly quickly. It can spread underground through its roots. As it grows, JKW can cause damage to drains, paths and walls. Many mortgage lenders will not agree to lend against a property that is located within seven metres of JKW. This makes it very difficult for existing owners to sell their property. The seven-metre radius was set down in a Royal Institution of Chartered Surveyors (RICS) Information Paper from 2012. Due to the speed at which it grows, and its potential to cause damage, there is legislation in place to manage JKW. The Wildlife and Countryside Act 1981 makes planting it a criminal offence. Further, the Environmental Protection Act 1990 and the subsequent Environmental Protection Act (Duty of Care) Regulations 1991 categorise JKW as “controlled waste” and provide that a licence is required to deal with, treat, and dispose of it. Failure to obtain such a licence is also an offence. As such, the removal of JKW should be undertaken by a licensed person or agency. Inevitably, this will be expensive.
(C) What damages can be claimed? Japanese Knotweed can cause physical damage to property and so any claim for damages is likely to include: • Costs of removing the JKW or an order requiring the defendant to remove it. • Costs of any remedial works to the claimant’s property. • Diminution in value due to the existence of JKW (due to the difficulty in selling). In relation to damages in most nuisance claims, the claimant must have suffered some actual physical damage or an unreasonable interference with their property rights, which has caused the loss of enjoyment of their property or proprietary interest. The judge’s decision in Waistell introduces the possibility that a claim can be pursued even where no actual damage has been sustained. The judge held that a claim based on an encroachment by the roots was not actionable unless actual damage had been caused. This re-affirmed the principle that a claimant needs to actually suffer some damage for a claim to be actionable. However, the judge did hold that the JKW interfered with Waistell’s property as he could not sell it for full market value; therefore, there was an actionable claim for nuisance. The judge explained that a nuisance could be proximate and did not require an actual encroachment from Network Rail Infrastructure Limited’s land onto Waistell’s land in order to succeed.
(D) What are the implications of the decision in Waistell? It could lead to a large number of other claims being pursued. Network Rail Infrastructure owns property all over the country. Mr Waistell was not the only person to bring a claim against them. His neighbour, Mr Williams, also sought damages against the company. There are likely to be numerous instances where land owned by Network Rail Infrastructure, or indeed other large landowners, has many properties abutting its boundaries. If JKW has been left untreated, as it had been in this case, it is easy to see how the number of potential claimants could grow.
A group of claimants could pool knowledge and resources in order to pursue a claim against such a common defendant. The issues are likely to be similar for each claimant. Each claimant would have to be within seven metres of JKW, and claims will likely include an allegation that physical damage has been caused by JKW. There could also be claims for diminution in value, due to proximity to the JKW. Such actions also have the benefit that all JKW could be addressed at once, rather than in a piecemeal fashion.
Read A and B opposite and find a word or phrase that matches the following definitions.
1. The title of a judge who has taken the first step onto the judicial ladder by sitting for just 30 days a year and handling less complex cases in one of the lower courts. 2. The idea that there is potentially a huge ‘wave’ of potential litigants with potential claims who would engulf the courts with cases if allowed to do so. 3. An appeal court has examined the decision of a lower court and confirmed that the original decision was correct. 4. To state how something should be done in an official set of rules or guidelines. 5. Highly qualified property specialists who can value buildings and assess them for any current defects and potential future problems. 6. UK law which has been created by the government in Acts of Parliament. 7. Carried out by someone who has accepted the job of fulfilling that specific task. 8. Certain to happen; unavoidably.
Read C and D opposite and above and complete the definitions below with one of the highlighted words or phrases.
1. ......... means the financial worth in something which has been lost due to the circumstance that caused that loss. 2. ......... means a legal right, either tangible or intangible, that an owner has in the thing that he or she owns. 3. ......... means an unlawful intrusion. 4. ......... means actions which are intended to correct something that is wrong. 5. ......... means the right not to be disturbed by certain things while on his or her own land, including mental disturbance or economic loss. 6. ......... means done little by little, over a period of time, instead of in one go. 7. ......... means the creation of an ongoing, annoying event that a reasonable neighbour would complain of. 8. ......... means sharing a common boundary with.
Answer the following questions using the information in B, C and D. 1. Why would a borrower find it difficult to obtain a loan to buy a house once the lender became
aware there was JKW growing nearby? 2. How does the law treat a person who deliberately plants JKW? 3. On what basis might a claim for encroachment of the roots of Japanese Knotweed onto a property fail? 4. What adjective did the judge in this case use to describe a nuisance that did not involve an actual encroachment? 5. As well as claims for the encroachment of JKW onto their property, what other grounds for a claim could property owners have if JKW is discovered nearby?
DISCUSSION POINTS • Judges are often cautious about making decisions that will ‘open the floodgates’ in certain situations. Do you think they are right to think in this way? • Do you think that Mr Waistell obtained a just outcome?
Speaking & Writing for this topic
Two short tasks scored against TOEFL rubrics. The prompt is generated for this topic — use the vocabulary you have just studied.