My surveyor missed the Japanese knotweed – can I do anything about it? Paolo Martini is the lead solicitor for Knotweed Help and has over 30 years of experience in the field of Civil Litigation and is an expert on the legal issues faced by individuals dealing with Japanese knotweed on their land. Has your surveyor missed Japanese knotweed? You will not be seen to be breaking the law until Japanese knotweed from your land spreads into another’s property or onto public land. If you have knotweed or suspect it to be a problem, whether you have had treatment or not, contact us for free, no obligation advice. Some Japanese Knotweed News articles will say you can kill the roots of Japanese Knotweed with chemicals, however, you do need an NPTC qualified person to work with the required chemicals and knows the best process to follow as a result of new legislation which covers the management and removal of Japanese Knotweed. How Japanese Knotweed Affects House Insurance: Are You Covered? In this case, the defendant (Miss Line) was found to be preventing the claimants’ enjoyment of their land by not treating her knotweed infestation, she was ordered to treat the infestation on her own land and pay the claimants’ legal fees. Japanese knotweed-infested soil that has been treated can be reused for landscaping the site, but should not be taken off site, unless to landfill. The plant lies dormant in winter but once summer arrives it can grow a foot a week and suppress other plant life in the garden. Japanese knotweed is a resilient plant that can often persist through adverse conditions, so it’s imperative that your treatments are thorough and effective. This notice could require the recipient to make reasonable efforts to remove the knotweed from their property or prevent the knotweed from returning. In the event that you have discovered knotweed on a property that you have purchased after a survey or TA6 property form stated otherwise, then you may be able to claim against the property surveyor or the previous owner of the property for the costs of the knotweed treatment. What is Japanese Knotweed? The EPA 1990 is supported by the Wildlife and Countryside Act 1981 which states that ‘if any person plants or otherwise causes to grow in the wild any plant which is included in Part II of Schedule 9, he shall be guilty of an offence’. It was originally brought to Britain for its beauty and was named the “most interesting ornamental plant of the year” in 1847. If you’re a private landowner then you do not need to ask permission from the Environment Agency, but you might want to check with your local council that you’re allowed to go ahead with burning your knotweed. Related: What Does Japanese knotweed Really Do? No. Whilst removing Japanese knotweed yourself is legal, it is incredibly difficult to do so thoroughly. We provide the below summary, but please be aware this is interim guidance; the final report from Defra has been delayed by the election, so we will follow-up as soon as this is released in early January 2020*. Homeowners can often be placed in a difficult position where they’re aware that a knotweed infestation is close to their borders, but feel powerless to stop it spreading onto their own property. There is no legal stipulation to clear Japanese knotweed from one’s land however, if the plant is allowed to spread from your land onto a neighbouring property then you will be responsible for clearing that infestation. Failure to spot Japanese Knotweed can be negligent Print publication. In the event that you discover an infestation on your land, you are not legally required to declare Japanese knotweed to the authorities. Before you transfer any knotweed contaminated waste you must warn the waste site that you are about to transport an invasive plant and confirm that they have the correct permit to deal with the plant. This blog examines some of the latest developments in relation to the ongoing concerns over Japanese Knotweed and its hybrid forms. Those working with in-scope plants (full list here) need to be aware that the … May 09, 2019. relating to its release and disposal of waste). Talking to the person responsible for the land should be your first port of call before taking any further action. During the winter, these stems appear to die off, becoming brown and brittle. The invasive plant has reached emergency proportions there. There are a few proven methods of managing Japanese knotweed. Surveyors risk being liable in negligence for failing to notice or identify Japanese Knotweed. In addition, the study has recommended that the Law Society review its Property Information Forms, in particular to decide whether the need to declare previous Knotweed problems should expire if the plant has been treated by appropriate excavation and there has been no re-growth within a certain period. Steve Nixon reviews a recent case concerning this invasive species which continues to … To bring a successful claim, the claimant needs to demonstrate that the knotweed originated from the adjoining land, and that the knotweed is causing the claimant owner “nuisance”. In the event where you are granted permission to bury your Japanese knotweed waste on your own land then you must adhere to a handful of guidelines to ensure that the plant does not make a resurgence once more. The content of this website for information purposes only and does not constitute legal advice. Under s. 14 (2) WCA it is an offence to plant Knotweed or “cause it to grow” in the wild (and arguably this provision would catch allowing knotweed to spread over boundaries beyond an individual’s property). Japanese knotweed is frequently discussed in the media in the context of property Unfortunately, it’s unlikely that your home insurance will cover Japanese knotweed, so you will not be able to rely on it to financially support the removal of the Japanese knotweed or any damage caused to your home. How and who do I report Japanese knotweed to? Bohemian Knotweed, like its infamous parent, Japanese Knotweed, is a non-native invasive species known to cause damage to concrete, buildings and foundations if left untreated and capable of spreading over 7 metres laterally from the plant. All Rights Reserved. Evidence from a recent government report suggests that if a knotweed infestation remains untreated then losses of up to 10% can be incurred. You do not need to report the presence of Japanese knotweed on your land, however, should you wish to voluntarily declare your Japanese knotweed or report an infestation on public land, then you can do so by visiting the Non-native Species Secretariat website. Before you begin treatment you should ensure that the person spraying holds a certificate of competence for herbicide use, or works under the supervision of someone who has one. The Act makes it an offence to deposit any contaminated soil in an irresponsible fashion. Understanding your legal responsibilities in regards to the knotweed growing on your land is crucial should you wish to avoid an unexpected date in court, or a run in with your local council. These may sound like heavy penalties, but it serves to demonstrate how seriously the law treats the spread of Japanese knotweed and is intended to deter citizens from giving this plant free reign to grow on their land. Published 18 September 2019. This conclusion is supported by the experience of some experts in this area and data from Knotweed contractors. Usually, you will be advised to take your waste to a landfill that has the requisite permit to deal with the plant. And how to make a. According to the Government, anyone seeking to get rid of their Japanese knotweed must use a registered waste carrier and a suitable disposal site. Full list of resources related to Japanese knotweed legal advice: Anti-social Behaviour Crime and Policing Act 2014, Wildlife and Countryside Act 1981 section 114 (2) (WCA 1981), selling a property with Japanese knotweed, seller who has lied about Japanese knotweed, What to do if you’ve found Japanese knotweed on your property, home insurance will cover Japanese knotweed, What to do if you’ve bought a property with Japanese knotweed. You can report those not abiding by these practices to your local authority. Here’s What to Do. Disputes surrounding the spread of Japanese Knotweed from one property to another are considered a civil matter between landowners. A depth of 2 metres is acceptable, but in this case you must wrap the remains completely in the membrane layer. Related: What to do if you’ve found Japanese knotweed on your property. Copyright © 2020, Squire Patton Boggs. Can You Build On Land With Japanese knotweed? Related: How To Identify Japanese Knotweed. Similarly, if you have bought an infested property with the understanding that no Japanese knotweed should be present on the land, you may be able to seek legal recourse against a seller who has lied about Japanese knotweed. This case highlights the duty of care on surveyors and other consultants carrying out surveys in relation to the presence of Knotweed on a site. Read our Japanese Knotweed advice based around questions that we are frequently asked by our clients, answered by our Japanese Knotweed specialists. They have strict laws and legislation regarding invasive weeds like Japanese knotweed. If you’ve discovered Japanese knotweed on your own property then you’ll have a few options open to you regarding remunerations, depending on the context of your discovery of the infestation. You are legally required to prevent Japanese knotweed on your land spreading into the wild, or onto neighbouring land. Allowing Japanese knotweed or soil contaminated with the plant to spread into the wild is an offence and could result in a fine of up to £5000, or a prison sentence of up to 2 years. The Invasive Alien Species (Enforcement and Permitting) Order 2019 (“The Order”), which came into force on December 1 st 2019 and applies in England and Wales, is part of the UK’s implementation of EU Regulation 1143/2014. The next step is to determine where the plant came from and the extent to which the plant affects the property. It’s important that plant is taken into consideration in the planning process, and that every effort is made to remove the plant and prevent it from further spreading. The presence of Japanese knotweed can lead to a home being devalued by up to 5% which can be a difference of thousands of pounds for homeowners. Wildlife & Countryside Act 1981. Using herbicide sprays to remove Japanese knotweed is not an instant fix, depending on the size of the infestation it may take up to 3 years for the treatment to soak down into the rhizomes underground. Both of their bungalows abutted a Network Rail railway embankment and access path which were infested with Japanese Knotweed and which had spread to the claimants land. If you do not remove every last trace of knotweed, it can grow back and spread even further. The costs of knotweed treatment and removal are significant, with the government estimating that the costs of eradicating it from the UK would be £2.6 billion. Failure to meet the requirements of this notice, without a reasonable excuse, could be treated as a criminal offence making the recipient liable to a fixed penalty notice or prosecution, which could lead to a further hefty fine. Interestingly, home owners wishing to sell their property must fill out a property information form, called a TA6, declaring whether the property or garden is, or has been, affected by Knotweed, but developers and builders are not obliged to complete the form, which was introduced in 2013. You’ll also need to ensure that you keep in mind the Control of Pesticides Regulations 1986. It must be proved that the knotweed originated on your land in order for you to be held responsible for clearing it, as in the case of Smith v Line. In order for a landowner to be considered to be persistently acting in a way that is detrimental to the quality of life to those in the locality (as it’s laid out in the Anti-social Behaviour Crime and Policing Act 2014) it must be proved that the individual has not taken reasonable steps to remove the infestation. Because Japanese knotweed became such a problem over such a short period of time – legislation was introduced via the ‘Wildlife and Countryside Act’- this legislative document began the process of opening the eyes of land owners and giving power … It is a rhizomatous (produces underground stems) perennial plant with distinctive, branching, hollow, bamboo-like stems, covered in purple speckles, often reaching 2-3 metres high. The government has recently confimed that the Invasive Alien Species (Enforcement and Permitting) Order 2019 will bring EU legislation into UK law on 1 December 2019. Deciding who is responsible for clearing the Japanese knotweed should be the first step to take after the positive identification of the plant. If you’ve more questions about Japanese knotweed legislation or are seeking further legal advice in regards to a Knotweed infestation then please don’t hesitate in calling us on 07595 653 226 or sending us a message using the contact form. Business owners should give the Environment Agency a week’s notice before burning knotweed and should also inform the environmental health officer at their local council. Due to its destructive nature, Japanese knotweed in residential areas is now legislated under the Anti-Social Behaviour Act. You are only allowed to bury your Japanese knotweed waste on your land if you have permission from the Environment Agency; you should leave at least a week’s notice to inform them. Legislation regarding Japanese Knotweed. Japanese Knotweed is also commonly knotweed spreading onto your land from adjoining land, neighbour has allowed Japanese knotweed knotweed to spread into your garden, appeal for a Community Protection Notice from your local authority, In early 2018 Adam and Eleanor Smith successfully sued their neighbour, Invasive Non-Native Specialists Association. There are serious legal risks inherent with having Japanese knotweed growing on your land so it’s best to get a handle on it sooner rather than later, otherwise you may find yourself at the receiving end of a fine. These notices are only reserved for those who persistently or continually act in a way that has a detrimental effect on the quality of life of those in the locality. Should you wish to legally build on land with Japanese knotweed then you will need to follow a few steps, to ensure that you’re not held liable years down the line. In the eventuality where an informal conversation has not yielded any results, you can start to take the necessary steps to report Japanese knotweed infestations to your local authority. Japanese knotweed (Fallopia japonica) belongs to the plant family Polgonaceae. The UK Government’s latest report on Knotweed published on 16 May 2019 states that “a significant industry is built around controlling Japanese Knotweed, but we were told that mortgage lenders in other countries do not treat the plant with the same degree of caution. 633045. They were able to claim for the costs of removing the knotweed and their neighbour had to commit to a 5-year treatment plan, to ensure that the infestation would not return. Think You’ve Found Knotweed On Your Property? S14(2) states that “if any person plants or otherwise causes to grow in the wild any plant which is included in Part II of Schedule 9, he shall be guilty of an offence.”  A defence under s.14(3) is that the accused took all reasonable steps and exercised due diligence to avoid committing an offence. I’ve bought a house with Japanese knotweed. Allowing Japanese knotweed to spread to neighbouring properties may be viewed as a private nuisance under common law, but this would be a civil matter. 02/08/2019. You may also need to get permission from Natural England, in cases where the land you’re treating is protected. A number of recent court cases reveal just how costly leaving knotweed to its own devices can be. The Environment Agency is responsible for regulating waste. Ensure that any waste is also covered or enclosed within the vehicles that you’re using for the task. Related: What to do if you’ve bought a property with Japanese knotweed. The case law and the publicity surrounding Knotweed continues, however the latest research suggests that the physical damage to property from Knotweed is no greater than that of other disruptive plants and trees (such as buddleia) that are not subject to the same controls. If it is not a species of Union concern, then the Wildlife & Countryside Act (WAC; Section 14, Schedule 9) still applies 2. Legislation knotweed-wales 2019-10-21T21:00:06+00:00. As a result, a property affected by Japanese knotweed, whether it is in their boundary or within 7 meters, loses value. Related: Has your surveyor missed Japanese knotweed? It’s important that you either supervise the disposal of the infestation yourself, or hire a specialist to take responsibility for it. Japanese knotweed is classed as ‘controlled waste’ and as such must be disposed of safely at a licensed landfill site according to the Environmental Protection Act (Duty of Care) Regulations 1991. Trustworthy firms that you can rely on will belong to trade bodies such as the Property Care Association (PCA) or the Invasive Non-Native Specialists Association. VAT Number 477 2974 93. The report goes on to recommend that a study of international approaches to Knotweed in the context of property sales is commissioned. This precedent has been set in cases involving both individuals and large organisations, so whether you’re dealing with Japanese knotweed on council land or from a next door neighbour, you should be able to claim for the treatment of the infestation. 1143/2014, 2014). ... Japanese Knotweed Legislation and Your Rights. If you’re planning on digging up and removing your knotweed manually then you’ll need to adhere to the aforementioned waste legislations laid out in the Environment Protection Act 1990 and the Wildlife and Countryside Act 1984. You’ll need an environmental permit or registered waste exemption before you start burning your Japanese knotweed waste. New Japanese knotweed legislation was introduced in 2014, including fines of up to £2,500 for homeowners who fail to control Japanese knotweed on their property. In addition, the Government has confirmed that: These new Japanese knotweed laws have been added to pre-existing laws relating to Anti-Social Behaviour Orders, and join older legislation such as the Environmental Protection Act 1990 and Wildlife and Countryside Act 1981. It is not an offence to have Japanese knotweed on your land and it is not a notifiable weed. Under the powers of this act police and local council authorities have the power to issue individuals and businesses with Community Protection Notices. The Court awarded each Claimant £10,000 for diminution in value and £4,320 for treating the Knotweed on their land. Japanese knotweed arrived in the UK in 1850, Japanese knotweed anti-social behaviour law, Environmental Protection Act 1990 (EPA 1990), How to tell if you have Japanese knotweed. Note: Only verified records appear on the map. 11 Soil containing rhizome material can be regarded as contaminated and, if taken off a site, must be disposed of at a suitably licensed landfill site and buried to a depth of at least 5 metres. If you find Japanese knotweed on your land then you should take care to isolate the area and establish how much of your property has been affected by the plant. In early 2018 Adam and Eleanor Smith successfully sued their neighbour after they discovered a serious knotweed infestation on their land which had entered from an adjacent property. What should I do? Japanese knotweed is not listed in the EU List of Invasive Alien Species of Union concern since there is insufficient evidence that it meets the listing criteria (Reg. Our blog provides observations on significant environmental, safety and health developments from around the world. Even when removed, if a small piece of root or stem is left in the ground it can re-infest the land. Read more. Although it’s possible to confuse Japanese knotweed with a number of other common plants found in England, there are a handful of tell-tale signs that should tell you if you’re dealing with an infestation or not. Similar to here, in England and Wales it is not illegal to have Japanese Knotweed on your land, and owners disposing of it illegally may be prosecuted through waste duty of care legislation. Normally, documented treatment with herbicide is … This gives us reason to believe that the UK has taken an overly cautious approach to this plant, and that a more measured and … In Ireland Japanese knotweed is a non-native, alien invasive plant species, orginally from Japan & Northern China. Taking appropriate steps to treat the Knotweed is likely to constitute a defence. If you have pictures of your suspected knotweed problem, upload them here. These registered carriers are still bound by the law in regards to disposing Japanese knotweed and must not dispose of waste along with surplus soil, or sell any contaminated soil. Case law recognises the civil wrongs of nuisance, both private and public and these are particularly relevant in Knotweed cases. Japanese knotweed, scientific names Fallopia japonica is a member of the dock family (Polygonaceae). How to legally prevent the spread of Japanese knotweed. Posted on 20th March 2015 1st March 2019 by John. Property surveyors are not infallible, their mistakes can lead to buyers purchasing properties under the impression that their home is free of faults, when in fact the opposite is true. If a property is found to have an infestation of Japanese knotweed on their land or Japanese knotweed within 7 meters, it is extremely difficult to secure a mortgage against the property. Who is liable when Japanese Knotweed spreads from someone else’s land? Japanese knotweed Legislation in Urban areas. Mr Ryb claimed that his surveyors were negligent in failing to spot signs of the Knotweed despite carrying out a top-grade survey, and claimed damages from the firm. ... Trafford will still use glyphosate on the toughest weeds, including Japanese knotweed. Even if the knotweed is treated and removed, losses can still be between 6-9%. Central and Eastern Europe Legal News and Views, UK Finance Disputes & Regulatory Investigations Blog. If you choose to not answer truthfully on this questionnaire then a prospective buyer could sue you under the Misrepresentation Act. Invasive Plant Solutions support and encourage full compliance with all Irish and EU environmental legislation and industry Codes of Practice Japanese Knotweed and Invasive Plant Control Specialists Phone: 086-2621443 | Email : info@knotweed.ie Although it is illegal to allow the plant to spread outside of your land, you are not required to declare the presence of Japanese knotweed to your neighbours or the local authorities. A professional evaluation and survey will be able to answer the questions that you have and give you an idea of the actions that you’ll need to take to get rid of the infestation. By Paolo Martini on 11th February 2019 (updated: 14th July 2020) in News. Here’s What To Do. Managing Japanese Knotweed Legislation Legislation covering the handling and disposal of Japanese knotweed includes the following: The Control of Pesticides Regulations 1986 require any person who uses a pesticide to take all reasonable precautions to protect the health of human beings, If you are selling a property with Japanese knotweed then you should declare its presence openly with any prospective buyers and your estate agent. Guide To Selling A Property With Japanese Knotweed. The Court held that “damage” (an essential requirement for a common law nuisance case) was an elastic concept and included Knotweed rhizome contamination, and in addition, that nuisance could be caused by inaction or omission as well as by positive activity. Open up a discussion with your neighbour, letting them know that knotweed is present on their property. Designating a clerk of works to oversee the Japanese knotweed management plan is a good way of ensuring that contractors treat Japanese knotweed in an appropriate manner. Legislation. Japanese knotweed crown and rhizomes (which make up the roots of the plant) can survive burning. Knotweed Help is a trading style of Cobleys Solicitors Ltd. A Guide To Getting Rid Of Japanese Knotweed, Japanese Knotweed Growing In Neighbour’s Garden: Legal Implications, Has Your Property Seller Lied About Japanese Knotweed? The surveyor reported that the property was in excellent condition with very few defects, but missed the actively growing mature Knotweed in the garden, which was subsequently identified by Mr Ryb’s gardener. The law on Japanese Knotweed (“Knotweed”), which will equally apply to Bohemian Knotweed, is now well established. Japanese knotweed spreads via the transferral of contaminated soil, or the unlawful tipping of cuttings. What is Japanese knotweed? The EPA 1990 sets out the appropriate methods of removing, transporting and disposing of ‘controlled waste’, defining this as any soil or plant materials contaminated with Japanese knotweed that you discard, or are planning on discarding. Japanese knotweed arrived in the UK in 1850, and since then has spread throughout most of the country. Japanese knotweed is classed as a controlled plant under the Wildlife and Countryside Act 1981 section 114 (2) (WCA 1981). Japanese Knotweed: How to spot it and deal with it Japanese knotweed is an infamous plant that can wreak havoc for many homeowners. Look for broad, green, shield-shaped leaves during the summer, attached to reddish hollow stems, similar to bamboo. In 2014, a decision was made to include the negligent cultivation of invasive plants such as Japanese Knotweed into the remit of the Anti-social Behaviour Crime and Policing Act 2014. Getting A Mortgage With Japanese Knotweed, Dormant Japanese Knotweed: Your Questions Answered. You will need proof that you’ve formally notified the land owner of the infestation (a letter or an email) before you can appeal to your local council for a Community Protection Notice. Can you spray Japanese knotweed with chemicals? A Japanese knotweed specific question is included on most pre-contract enquiry questionnaires, which are based on the Law Society’s TA6 Form. It will be interesting to see if these studies lead to any shift in approach away from the “menace to homeowners” that Knotweed is currently considered to be. This Order is similar to existing legislation, but there are a number of changes that apply to regulated species: 1. What to do if there is Japanese knotweed encroaching from adjoining land, What to do if a neighbour has Japanese Knotweed. No liability shall be accepted by the Directors of Cobleys Solicitors Ltd. 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