August EWJ 24 - Flipbook - Page 31
Japanese Knotweed Who Caused the Loss?
by Matthew Anderson & Katrina Davies - www.dacbeachcroft.com
Position after the Court of Appeal.
The lower courts had found that the council should
have instigated treatment on their land from 2013,
and that by failing to take steps until 2018, they were
in breach of duty for that five year period.
Overview
The Supreme Court has today, 8 May 2024,
unanimously approved the appeal of Davies v Bridgend
County Borough Council [UKSC 2023/0028] and decided that whilst the council were in breach of duty
for a period of five years, this was not causative of any
of the claimant's alleged loss.
The 2013 date was determined as being a reasonable
period of time after the 2012 publication by the Royal
Institute of Chartered Surveyors (RICS) of their guidance paper that detailed the risk of damage that it was
thought JKW posed to buildings and the need to treat
and or control JKW.
DAC Beachcroft were instructed on behalf of Network
Rail Infrastructure as intervener in the case, and arguments put forward on behalf of NRI were accepted
by the Supreme Court.
Factual Background
In 2004 Marc Davies, the claimant, purchased 10
Dinam Street, Bridgend. In 2017 the claimant became
aware of Japanese Knotweed "JKW" on his land.
Shortly thereafter he sought damages from the council alleging that, as a result of their breach of duty, the
JKW had encroached onto his land and that its very
presence caused damage. The claimant sought the
cost of the treatment required to control the JKW as
well as £4,900 to reflect the alleged reduction in the
value of his property caused by the stigma associated
with JKW.
The Court Of Appeal found in favour of the claimant
and determined that as the council were perpetrating
a continuing nuisance they could recover their residual diminution as this ongoing breach was the cause of
the harm persisting.
The issue in front of the Supreme Court
The appeal focused on the narrow issue of causation
and the question of "was the residual diminution in value
caused by the defendant's breach of duty in private nuisance."
It was accepted that JKW had existed on 10 Dinam
Street before 2004 and that the council were only in
breach between 2013 and 2018.
In advance of the trial, the claimant accepted that
treatment was required before 2004 and therefore
dropped this aspect of his claim.
The council argued that any residual diminution was
caused by the first encroachment of JKW as this was
the cause of any stigma; the stigma arose from the fact
there had been any JKW on the site and it was a
binary consideration.
The inconsistency between the claimant's position as to
the recoverability of treatment costs and residual
diminution caused some consternation, and the matter proceeded through a number of lower court appeals before being heard in front of the Court of
Appeal and latterly the Supreme Court.
EXPERT WITNESS JOURNAL
It was the council's position that as the first encroach29
AUGUST 2024
