Japanese Knotweed and the Law - Legal Issues

The landlord or legal occupier of infested land is responsible for the treatment and control of Japanese Knotweed. Although a highly invasive weed, there are no statutory requirements on control or reporting to authorities.

However, it is advisable to bring the infestation under control as quickly as possible. You risk prosecution if you allow it to spread to neighbouring land. You will also find it impossible to sell property with an untreated knotweed problem - no bank or building society will approve a mortgage application. The presence of Japanese Knotweed will also have a devastating impact on the value of any property.

Wildlife and Countryside Act 1981

Japanese knotweed is listed on Schedule 9, Part II of the Wildlife and Countryside Act 1981 making it an offence Under Section 14 (2) (a) of the Act to “plant or otherwise cause Japanese knotweed to grow in the wild”.

Both the Police and local authorities have enforcement functions under the Act. Penalties for a Section 14 offence have been modified by the Countryside and Rights of Way Act 2000 for England and Wales.

A magistrates court can impose a maximum fine of £5000 or a maximum prison sentence of six months, or both. A Crown Court can impose an unlimited fine or a maximum prison sentence of two years, or both

Causing Nuisance - The Legal Implications

Allowing Japanese Knotweed to infest adjacent land is not a statutory nuisance. However, it can be considered to be a private nuisance and civil action can be enforced against you.

The common law of private nuisance defines nuisance as the “unlawful interference with a person‟s use or enjoyment of land, or some right over, or in connection with it” [Read v Lyons and Co. Ltd, (1945) K.B.216]. This principle allows landowners or tenants of leasehold properties who have a right to the land affected to bring an action against the person responsible. In addition, the rule of Rylands v Fletcher (1868) relates to strict liability for foreseeable damage caused by escapes resulting from non natural uses of land.

Duty of Care Obligations

A duty of care exists between all neighbouring landowners not to do anything that would cause an encroachment and/or physical damage to their neighbour’s land or building or vegetation grown upon it. This includes a positive duty to intervene where such encroachment has occurred or is likely to occur.

Town and Country Planning Act

There are also powers under the Town and Country Planning Act which empower local authorities to require landowners to treat the land if it detracts from local amenities and that could include situations where Knotweed is present on the land. The Town and Country Planning Act is often used by local planning authorities by way of planning conditions to force developers to treat sites infested with Knotweed.

The Environmental Protection Act 1990

Soil and waste containing Japanese knotweed is considered to have the potential to cause ecological harm and is deemed "Controlled Waste‟ or "Directive Waste‟ (Waste Management Licensing Regulations 1994).

Under Section 33(1)(a) and (1)(b) of the Environment Protection Act 1990, it is an offence to deposit, treat, keep or dispose of controlled waste without a licence. Exemptions from licensing are available in certain circumstances as set out in Schedule 3 of the Waste Management Licensing Regulations 1994, as amended.

Section 33 (1)(c) of the Environmental Protection Act 1990 makes it an offence to keep, treat or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health. A magistrates‟ court can impose a maximum fine of £20,000 or a maximum prison sentence of 6 months, or both. A Crown Court can impose an unlimited fine or a maximum prison sentence of 2 years, or both.

Section 34 of the Environmental Protection Act 1990 places a duty of care on any person who imports, produces, carries, keeps, treats or disposes of controlled waste. Their duty is to ensure that:

No-one else disposes of the waste unlawfully or in a manner likely to cause pollution of the environment or harm to human health.
Waste does not escape.
Waste is only transported by a carrier that is either registered or exempt from registration by the Controlled Waste Registration of Carriers and Seizure of Vehicle Regulations 1991.

Breach of the duty of care under Section 34 of the Environmental Protection Act 1990 is a criminal offence. The Environment Agency is responsible for enforcement and a person found guilty of an offence under this section is liable to a fine not exceeding £5000 in the magistrates‟ court and to a fine in the Crown Court.

Japanese knotweed must be safely disposed of at an appropriately licensed landfill site in accordance with the Environmental Protection Act 1990 (Duty of Care) Regulations 1991. To ensure safe disposal, contaminated soils must be buried to a depth of at least 5 metres.

Section 34 of the Environmental Protection Act 1990 also places a duty of care on all waste producers to ensure that a written description of the waste and any specific harmful properties is provided to the site operator. The provisions concerning waste transfer notes are set out in the Environmental Protection (Duty of Care) Regulations 1991 as amended. Failure to comply with these provisions is an offence.

Hazardous Waste England and Wales Regulations 2005

Untreated knotweed is not regarded as a „Hazardous Waste‟ but material containing knotweed that has been treated with certain herbicides that persist in soil for extended periods with the possibility of leaching and causing harm to the surrounding environment could be.

Additionally, excavated knotweed waste contaminated with high levels of heavy metals or other hazardous materials could be categorised as hazardous and must be disposed of at a licensed hazardous waste landfill site.

Control of Pesticides Regulations 1986

Treatment of knotweed using pesticides requires that all persons follow The Control of Pesticides Regulations 1986 and comply with Control of Substances Hazardous to Health Regulations 2002. Persons should take all reasonable precautions to protect the health of human beings, creatures and plants, safeguard the environment and, in particular, avoid the pollution of water. Approval from the Environment Agency should be sought before application of pesticides in or near water.

Essential Knotweed Reading

Guide to Japanese Knotweed for Developers produced by the Environment Agency
Japanese Knotweed Code of Practice produced by the Environment Agency
JK Guidance ID and Control produced by the Cornwall Knotweed Forum were JK is rife.

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