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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Network Rail Infrastructure Ltd v Williams & Anor  EWCA Civ 1514 (03 July 2018)
Cite as:  Env LR 35,  EWCA Civ 1514,  3 WLR 1105,  WLR(D) 557,  BLR 684,  QB 601
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ON APPEAL FROM CARDIFF COUNTY COURT
Mr Recorder Grubb
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SHARP
LORD JUSTICE LEGGATT
| NETWORK RAIL INFRASTRUCTURE LIMITED
|- and -
|Stephen WILLIAMS (1)
Robin WAISTELL (2)
Tom Carter (instructed by JMP Solicitors) for the First Respondent
Stephen Tromans QC and Nicola Atkins (instructed by Charles Lyndon) for the Second Respondent
Hearing dates : 12 and 13 June 2018
Crown Copyright ©
Sir Terence Etherton MR :
The factual background
Judgment under appeal
"108. Ms Creer [counsel for NR] submitted that the only reason that there is a diminution in the value of each of the claimants' properties is because of the position taken by mortgage lenders which, since around 2012, have limited or refused to provide mortgages where [Japanese knotweed] is within seven metres of the property's boundary. The difficulty with this argument is, as both the claimants' and defendant's valuation experts recognise, even when treated there is a diminution in the value of the property. In those circumstances, even though with a treatment-backed guarantee, a loan may be obtained, there remains a residual diminution in value. The only rational explanation of that is that a 'stigma' continues to affect the property's amenity value. The position is no different, in my judgement, from a case where a building has been damaged by a nuisance but, despite its repair, it nevertheless cannot be sold for the same price as would have been obtained if it had never been damaged. There may be many situations in which the amenity value of a property remains affected simply because others do not value the property as highly as might otherwise be anticipated. That, in my judgment, is not a basis for rejecting the claimants' case under this head of nuisance. In any event, it pays no regard to the more intangible effect on the amenity value due to a landowner's 'fix' of having to live on a property that is blighted by the presence of [Japanese knotweed] on adjoining land".
Breach of duty
Grounds of appeal
Appeal Ground (1)
The Claimants' Grounds (1) and (2)
"96. As I have already indicated, in order to succeed under this head of private nuisance, the claimants must each establish that they have suffered damage to their property. Neither expert identifies any damage to the property of [the claimants], although Dr Beckett [expert for the claimants] considered that there is a risk of damage to the properties. I did not understand counsel for either claimant to put a case on the basis of risk of damage. Both Mr Carter and Ms Atkins' [counsel for the claimants] submissions were firmly rooted in liability being based upon there being no need to prove damage in encroachment cases but, if damage was a requirement, each of the claimants had suffered actual physical damage to their property.
97. It is, however, common ground between the parties that the presence of the [Japanese knotweed] has resulted in a diminution in the value of the claimants' properties (although the quantification is not accepted). The latter, however, does not constitute "damage" for the purposes of these claims. There must be physical damage to the property. As I have already said, neither expert identified any damage to the foundations or bungalows. There is no evidence that the roots have affected the soil below the surface of either claimant's property. There is, for example, no evidence as there was in the Delaware Mansions case where the tree roots dehydrated the soil affecting its load-bearing qualities. There is simply no evidence of that in these claims.
98. There is no evidence, therefore, of any change in the soil structure (other than the mere presence of the rhizomes) which could amount to the alteration or adverse changes of the kind present in the Delaware Mansions case and also as contemplated in the Blue Circle Industries case or by Pill LJ in Hunter when that case was in the Court of Appeal.
99. For these reasons, therefore, I find that neither [of the claimants] have established that, even though the [Japanese Knotweed] rhizomes have encroached upon their respective properties, that as a consequence they have suffered damage to their land so as to give rise to a claim in private nuisance under this head of liability."
"The underlying policy of the law is to protect a claimant against what Markesinis and Deakin in their book on Tort Law (4th ed, 1999) describe at p.422 as 'unreasonable interference with the claimant's interest.' Phrases such as 'physical damage to land' are portmanteau phrases which embrace the concept of land being affected and this resulting in damage to the economic interests of another".
Appeal Ground (2)
"The claimants' expert, Mr Hardie and Mr Inman do not agree upon the respective market values of the properties if JKW had never been present and the respective values of their properties after the treatment has been carried out."
Lady Justice Sharp :
Lord Justice Leggatt :