Japanese knotweed can pose a risk for farmers, due to its uncontrollable growth and the difficulty in removing it, writes Karen Walsh.
Here, we discuss potential legal implications for farmers having Japanese knotweed on their land.
The legislative position is that under the Noxious Weeds Act 1936, it is an offence to allow noxious weeds as defined by the Minister for Agriculture, to grow on your land.
An Garda Síochána possess investigative powers under Section 4, and can serve a notice for destruction of weeds.
On failure to comply with this notice, one may be at risk of an offence and liable to pay a fine of up to €1,000.
However, Japanese Knotweed is not presently classified a noxious weed by the Minister, and it appears the legislation does not presently apply to it.
Under Regulation 49(2), any person who plants, disperses, allows or causes to disperse, spreads or otherwise causes to grow Japanese knotweed or any of the other invasive plants listed in the Third Schedule of the European Communities (Birds and Natural Habitats) Regulations, 2011 (S.I. No. 477 of 2011) shall be guilty of an offence.
Furthermore, Sections 52(7) and (8) of the Wildlife Act, 1976, as amended, make it an offence to plant or otherwise cause to grow in a wild state exotic species of plants.
However, local authorities have no direct enforcement role in relation to invasive alien species.
The National Parks and Wildlife Service is the primary regulatory and enforcement authority, but due to limited resources, they tend not to investigate reports of invasive species on private land.
Budgets have been allocated to County Councils to deal with Knotweed control, but tend to involve educating landowners, including providing courses and literature.
Japanese knotweed can be disposed at a deep-fill licenced landfill site.
But it is advised that you first check with the landfill if they can and will accept the waste.
You may need to apply for a licence from the National Parks and Wildlife Service to move Japanese knotweed material or infested soil or spoil off site.
Only a licenced waste carrier can legally transport the waste to the landfill.
The landowner is responsible to ensure that they are not causing or allowing it to be dispersed or spread, and should take action to control it.
It is an offence for anyone to cause or allow it to be dispersed or spread, under Regulation 49(2) of the European Communities (Birds and Natural Habitats) Regulations, 2011 (S.I. No. 477 of 2011).
One of the key issues landowners should be aware of is the law of private nuisance in respect of Japanese Knotweed.
Two recent English court decisions dealt with this in the context of private nuisance claims by neighbouring landowners.
The first case is Waistell v Network Rail Infrastructure Ltd.
In this case, two house owners sued for nuisance against Network Rail who owned an active railway line and embankment behind the houses.
Japanese Knotweed had existed on the embankment for 50 years and, it was alleged, had encroached on the house owners’ lands.
They were looking for damages because the value of their lands was reduced by presence of Japanese Knotweed.
The Court held they had succeeded in establishing that the presence of the Japanese Knotweed on Network Rail’s land had unlawfully interfered with the claimants’ quiet enjoyment or use and enjoyment of their land where:
– The value of the land was reduced by the presence of Japanese Knotweed on Network Rail’s land, even if treated.
– Network Rail had breached the measured duty of care it owed its neighbours to take reasonable steps to minimise a known hazard.
In the second case, Smith and another v Line, the defendant owned a large tract of beachside land.
She sold a house on it in 2002 for £200,000, retaining most of the land for grazing and, in summer, public car parking.
The purchaser of the house discovered Japanese Knotweed on the land in 2003 and complained to Ms Line who suggested that, in fact, it had encroached from the claimants’ land onto hers.
They sued for nuisance and the court granted a mandatory injunction requiring Ms Line to enter into a contract with a reputable contractor to treat the knotweed on her land, and ordered her to pay the claimants’ costs.
Based on the above two cases, it is important to note you may be liable under the law of private nuisance if Japanese Knotweed is encroaching onto neighbouring land from yours.
If you are affected by Japanese Knotweed, we would advise you to firstly take advice from your local council or National Parks and Wildlife Service.
If there has been damage to your land from Japanese Knotweed encroaching from neighbouring land, we would advise you to take legal advice.
Japanese knotweed can pose a risk for farmers, due to its uncontrollable growth and the difficulty in removing it.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.