Asbos for gardens?
ith Japanese Knotweed season in full force, many unlucky home owners are finding the plant appearing in gardens across the country. Due to the damaging nature of Japanese Knotweed, house owners and landlords may find that thousands of pounds are knocked off the value of their land and properties as a result of its presence. But whose responsibility is it to remove it? Does it lie with the property owner, the landowner or maybe even the developer who carried out the development?
Essentially, it is not an offence to have Japanese Knotweed on your land and there is no legal obligation to notify anybody if the plant is found. However, landowners may find themselves on the wrong side of the law if there are no attempts to control, remove or report the presence of Japanese Knotweed should it grow into neighbouring land and cause loss and damage. Furthermore, under the Environmental Protection Act 1990, Japanese Knotweed is considered to be a “controlled waste” and landowners can face hefty fines if it is not disposed of correctly.
It is also important to note that a recent change in legislation has now made it an offence to allow Japanese Knotweed to grow within your land ownership if it is not controlled and encroaches upon land other than your own. Landowners who ignore the presence of the plant have in some cases been given an Anti Social Behaviour Order (“ASBO”) and issued a fine of up to £2,500, should it start damaging neighbouring properties. The Home Office states that individuals, businesses or organisations have a legal responsibility to prevent certain invasive non-native plants or injurious weeds on their premises spreading into the wild. This demonstrates that it is the responsibility of landowners to control and remove Japanese Knotweed if it is found on their land.
In the case of housing developments, if a home owner can prove that the developer has breached a Species Control Order by failing to undertake any remedial steps in line with the Environmental Protection Act, any costs associated with removal of the plants can be recovered and reimbursed.
However, it can be difficult to identify Japanese Knotweed when carrying out surveys and land checks prior to building a development, as it can lie dormant for several years. If a developer can prove that they have carried out all of the relevant searches and enquires, they may be able to escape liability if Japanese Knotweed is discovered further down the line. The most important consideration for landowners is to ensure it carries out the appropriate checks prior to redevelopment and prior to a purchase. In the event the plant is found to be present, it should be reported and disposes of correctly and within the legal guidelines set out by statute and Government guidelines.