Who knew there were legal responsibilities for invasive plants and injurious weeds!
The problem with these requirements is that it doesn’t matter whether you yourself brought it onto the land. If invasive plants, such as Japanese Knotweed are on your property, you must ensure that it does not spread off site; while it is not illegal to have the weed on your property, failure to manage it may expose you to legal liabilities.
This all sounds pretty straightforward, but the features of Japanese Knotweed are no joke and something that all homeowners and buyers should be aware of. It grows at an incredible speed making it near impossible to get rid of, and this is problematic as it has the potential of tampering with the value of your house.
What is Japanese Knotweed?
The Victorians initially introduced Japanese knotweed into the UK as an ornamental plant. The plant grows to look like bamboo stems with small white flowers and whilst looking like an ornamental flower, it is in fact an extremely aggressive and dangerous weed. The plant can grow more than 3 metres in ten weeks with an ability to grow in the smallest of places often overrunning road verges, gardens and hedgerows.
The plant seasons in spring and is not fussed about the quality of soil. It can grow up to 20 centimetres a day, protruding through even tough materials such as concrete or tarmac. And it’s no surprise that it spreads very easily; it can form dense clumps with its roots being up to 3 metres deep. It doesn’t produce seeds but instead spreads through rhizomes (an underground root-like stem) or a piece of the plant; it only requires 0.8g of a root to regrow. Although it dies between September and November, it still leaves its brown stem debris around a property.
How can I treat it?
Your property is not doomed for a life of attack by the persistent presence of the Japanese knotweed – there are a number of ways you can handle your Japanese knotweed problem. While its tendency to spread makes it very difficult to completely eradicate, it can be contained.
Japanese knotweed is considered as ‘controlled waste’ and it must be disposed of safely, and in accordance with the recommendations set out in the Environmental Protection Act (Duty of Care) Regulations 1991. The weed must be disposed of at a licensed landfill and those dealing with the weed or contaminated soil must act cautiously, as an escape of contaminated soil or plant material may result in a prosecution and/or a fine.
The main methods of containment include the following:
- Spraying invasive plants with herbicide: This is an effective method of treatment, however it can take at least 3 years until the plant is dormant.
- Digging up invasive plants: This can be a quicker method, however the weed and any contaminated soil must be disposed of according to the ‘controlled waste’ requirements above.
- Cutting and burning invasive plants: Cutting or burning the plant will contain the plant but not kill it. Any cut plant must also be disposed of according to the ‘controlled waste’ requirements. To burn the weed, you may require an environmental permit or registered waste exemption.
- Burying invasive plant material on site: Burying the weed and restricting sunlight will mean that the weed is prevented from germinating. However, the rhizomes of the weed can survive for up to 20 years and therefore the weed needs to be buried for several years.
- Disposing of invasive plants and contaminated soil off site: It must be in accordance with the ‘controlled waste’ requirements above.
So the weed is still very manageable, especially if you nip it in the bud, but homeowners and buyers still should watch out for what seems to be the cockroach of the plant kingdom. Legislation that regulates the weed requires specialist firms for destruction, which costs around £300 per visit, not to mention the fact that at least 2 to 3 visits are needed per year to keep the weed in check.
How can the Japanese knotweed affect my property?
The plant does not need to grow in the garden for it to affect the sale of a property. Because of its extensive roots, the plant can penetrate roads, concrete and damage foundations and drains. This in turn is leading to problems for homeowners trying to sell their properties. Even those who do not have the weed on their property but live near a cluster are facing problems in relation to the value of their homes.
Thousands of house sales are now being affected by the spread of Japanese Knotweed as purchasers are not prepared to buy properties affected by Japanese Knotweed. Furthermore, now even lenders are precarious about financing properties with Japanese knotweed as they are more aware of it as an issue. A mortgage lender will most certainly require that the treatment is on-going if it is to provide any lending facility to purchase a property.
Getting rid of the weed is a careful exercise as it is not always as simple as digging it out. The plant may be dug out as a last resort, as due to the depth of the rhizomes regrowth is very likely. If the weed is well established, to remove the plant can be expensive. Whilst homeowners are not legally obliged to remove it, its presence could completely stall the house selling/buying transaction. The cost of removal could reach a staggering £20,000.00 – an expense a buyer may not be able to cover when purchasing a property.
What are the legal obligations on the proprietor of a property if the weed is found?
It is not illegal to have Japanese knotweed on your land; however, as it falls under the category of an ‘invasive plant’, you must maintain the legal requirements in order to avoid penalties.
Section 34 of the Environmental Protection Act 1990 imposes a duty of care on anyone who produces, disposes or treats controlled wastes, and as a result there are requirements that need to be followed when disposing controlled waste. Japanese knotweed and the infected soils fall under this category and therefore must comply with all the duty of care requirements.
The Wildlife and Countryside Act 1981 makes it an offence to cause or allow Japanese Knotweed to grow in the ‘wild.’ The introduction of the weed in the wild must be caused by your actions or omissions to act. Homes with the weed should be careful that it does not spread to any adjoining environment as it may become beyond your control.
The Town & Country Planning Act section endows Local Authorities with a power to require landowners to clear up the weed if it interferes with local amenities. This means that the local planning authorities may impose conditions of Japanese knotweed removal before planning consents are granted.
Under civil law, if the weed spreads onto the adjacent land, causing nuisance, the owner of the adjacent land may have a cause of action.
Due to the fact that Japanese knotweed is so destructive, it also has additional legislation under the Anti-Social Behaviour Act.
Penalties for breach of the above can involve a fine for up to £20,000 for businesses, and £5,000 for private individuals. It can also involve imprisonment for up to 2 years. So while it is not illegal to have the weed on your property, it’s fair to say you’re better safe than sorry when it comes to Japanese knotweed.
Are there any possible remedies/ways around it to avoid a transaction falling through?
The thing to remember is that the Japanese knotweed is not the spawn of the devil. Think of it more akin to that one very high maintenance friend that you need a break from, but just won’t go away. Try a spin of optimism and treat it as a free, but compulsory, therapeutic gardening session that you can spend reflecting on yourself.
The bottom line is that if the problem is recognised early, it is a very manageable plant. Sellers and buyers should familiarise themselves with the weed and make sure that if found, they are proactive in the treatment.
The Royal Institution of Chartered Surveyors have introduced four risk categories on Japanese knotweed and it is recommended for properties falling within category 3 and 4 to hire a management specialist with a management plan that is to the satisfaction of both the seller and the buyer of the property.
If the problem is still in its infancy the seller should be proactive in the treatment and have it underway, so it doesn’t take the buyer by surprise. If it is dealt with effectively, any associated risks will be minor and manageable, meaning that there is a lesser chance of a transaction falling through because of the weed.
The Japanese knotweed problem is a prevalent one and not something you should try to hide when selling your property. The law has recognised this position by asking a specific question relating to Japanese knotweed in the Law Society Property Information Form. If the answer is untruthful, the seller could be exposed to a claim for misrepresentation. It is better to have a plan to effectively contain and kill the plant than dismiss the problem. Your progress in managing the weed may be the thing that helps you avoid a transaction from falling through.
If a Lender takes it on, will it affect a mortgage offer being issued?
Whenever a mortgage is being taken out, the lender will require the presence of Japanese Knotweed to be noted on the bank’s valuation report.
Currently, there is no blanket policy preventing lenders from lending on properties where the presence of Japanese Knotweed has been noted. However, there are a small proportion of lenders that will not lend if Japanese Knotweed has been found.
Each lender will need to take into account a number of factors when deciding to lend on a property or not. Most lenders now require an insurance backed treatment guarantee as a minimum condition. It will require that remedial action be put into place for the removal of the plant and an assurance that this will be an ongoing treatment programme. Most of the time, a knotweed specialist will provide the treatment programme with a guarantee backed by insurance in case the specialist is unable to honour their guarantee obligations.
If purchasing without a mortgage, it is always best to have a survey carried out to establish whether there is presence of Japanese Knotweed at the property as failure to do so at the outset could result in thousands of pounds being spent to remedy the problem after completion.
Japanese Knotweed could really be the root problem for “knot” selling your house, but only if you leave it untamed. The trick is for homeowners and buyers to be informed so that they have the ability to recognise and remedy the problem before it becomes a barrier to a property transaction.
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