Room with a view: Japanese Knotweed: new regulations make this more than just an inconvenience

03 June 2015

Japanese Knotweed is the most commonly encountered member of a group of organisms known as ‘non-native species’.

Japanese Knotweed is the most commonly encountered member of a group of organisms known as ‘non-native species’. These include a group of plants and animals known to cause damage to property and ecosystems. For the purpose of this article, we will refer to Japanese Knotweed (Knotweed for short) for convenience, but the rules apply equally to any of these non-native species. Knotweed is classified as controlled waste under the Environmental Protection Act 1990, and so must be disposed of accordingly.

Some may also be familiar with the recent (and somewhat controversial) provisions contained in the Anti-social Behaviour, Crime and Policing Act 2014, creating community protection notices (the new form of ASBO), which can be issued against occupiers who fail to clear Knotweed. With effect from 12 April 2015, provisions in the Infrastructure Act 2015 introduce two key new measures to tackle Knotweed, namely, the power for environmental authorities to enter into species control agreements (SCAs) with landowners and, if necessary, to impose species control orders (SCOs). An ‘environmental authority’, for this purpose (in England), is the Secretary of State, Natural England, the Environment Agency, and the Forestry Commissioners.

What are SCAs and SCOs?

The Act encourages environmental authorities to seek to agree a voluntary arrangement (an SCA) with landowners, in which the owner takes particular steps to control Knotweed present on the land. Where the terms of an SCA are breached by the owner, where the owner refuses to enter into an SCA, or in cases where urgent action is required, an environmental authority can impose an SCO on the owner unilaterally.

An SCO will compel the owner to take particular steps to control the Knotweed, or alternatively, will compel the owner to allow the environmental authority to enter onto the land and undertake such steps. Where the environmental authority opts to perform the works itself, the Act enables authorities to recover their reasonable costs from the owner.

The new regulations are somewhat similar to the existing local authority powers to require landowners to remedy a Knotweed infestation under the Town and Country Planning Act 1990 (or allow the local authority to do so). One of the key differences, however, is that in order for those provisions to apply, the local authority had to establish that Knotweed was affecting the amenity of the area (as opposed to simply being present on land). The new regulations, on the other hand, only require environmental authorities to be satisfied that the provisions of an SCA/SCO are “proportionate to the objective”. No specific guidance has been given in this regard. Given, however, that the underlying policy objective is to eradicate Knotweed from the UK, the test of proportionality is likely to be applied rather liberally.

Who will be affected?

The ‘owner’ of premises (who could be subject to an SCA or SCO) is defined widely so as to include the freeholder, leaseholder, and any person who exercises control over the premises. This has particularly serious implications for developers owning land blighted by Knotweed. Development sites provide a fertile environment (in all senses) for invasive plants such as Knotweed, so it is important that those in the industry are up-to-date with the new regulations.

The costs of complying an SCA or SCO are likely to be considerable, and there are criminal sanctions for failures to comply (including custodial sentences of up to six months’ imprisonment and fines up to £40,000). Purchasers, developers and contractors should all take steps to make sure they are fully aware of the situation on site before entering into contractual arrangements.

What else can be done?

If Knotweed on neighbouring land has encroached (or is about to encroach) onto the development site, it may be possible to obtain a court order requiring the neighbouring landowner to remove the infestation at their cost. It is also possible that there will be more 'whistleblowing' style reporting being made to environmental authorities to encourage them to serve notices so that the costs burden of pursuing clean up is shifted away from adjoining owners. 

Liability for Knotweed is not always straightforward, however, and further advice should be obtained in order to assess the liabilities of the various landowners and parties involved in any problem site.

For further information on this topic, please contact Laura Tanguay.

This article provides only a general summary and is not intended to be comprehensive. Specific legal advice should be taken in any individual application. Law covered as at June 2015.