Knotweed Legal Issues
A variety of laws have been put in place to regulate Japanese knotweed growth in the UK. A brief summary of the pertinent legal mechanisms are outlined in the following video, which was produced by Groundsure to support their innovative remote sensing technology.
Allowing any Japanese knotweed to escape from your land could attract third party litigation action and/or civil proceedings against you. If you allow knotweed to spread onto an adjacent property an order could be served under nuisance legislation. Not taking appropriate measures to dispose of Japanese knotweed could easily result in spreading knotweed and therefore breaking the law.
3rd party litigation is by far the most active area of law in terms of action taken against people who allow knotweed to cause problems for others. In comparison with other legislation, the fines and costs associated with litigation are often much greater.
At Phlorum we have significant experience in providing expert witness services in legal cases involving Japanese knotweed. This includes attendance at court, the Lands Tribunal and at Public Inquiries. We also have a partnership with a specialist practice in this area (further information here).
Anti Social Behaviour Law
The Police, Environment Agency and Local Authorities are not obliged to control Japanese knotweed on behalf of a landowner. Responsibility usually rests on the landlord or tenant of the land.
However, recently reformed powers under the Anti-social Behaviour, Crime and Policing Act 2014 can now be used against a property owner if it can be proven that their Japanese knotweed is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those nearby.
Additionally, in early 2014, the Law Commission issued guidance for the introduction of Species Control Agreements and Species Control Orders to encourage, or force, landowners to take action to stop invasive non-native species that arise on their property from affecting their neighbours. Such legislation is already in place in Scotland.
The Wildlife and Countryside Act
Section 14(2) of the Wildlife and Countryside Act 1981 states that:
“if any person plants or otherwise causes to grow in the wild any plant which is included in Part 2 of Schedule 9, he shall be guilty of an offence”.
Japanese knotweed is a Schedule 9 listed plant, as are Himalayan balsam, rhododendron, giant hogweed and numerous other plants.
Knotweed Waste Legislation
According to the Environmental Protection Act (EPA) 1990, controlled waste must be disposed of at appropriately licensed waste facilities. Japanese knotweed plant material and/or any knotweed contaminated soil that is discarded, or is intended to be discarded, is likely to be classified as controlled waste.
Section 34 of the EPA imposes a duty of care on persons who produce, import, dispose of, or treat controlled wastes. The movement off site of controlled waste must be covered by waste transfer notes. The transfer notes must be completed and signed; giving a written description of the waste, a European Waste Catalogue (EWC) code, a Standard Industrial Classification (SIC) code, and confirmation that the client has discharged their duty in relation to the waste hierarchy. This description must be comprehensive enough to allow the receiver of the waste to handle it in accordance with their own duty of care. These provisions are set up in The Waste (England and Wales) Regulations 2011, and the Environmental Protection (Duty of Care) Regulations 1991 in Scotland.
Japanese knotweed waste must be transferred offsite by an authorised person, in other words a person who is either a registered carrier or who is exempt from registration by the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991.
Section 33 of the EPA states that it is an offence to deposit, treat, keep or dispose of controlled waste without an environmental permit in England and Wales, or a waste management licence in Scotland. There are exemptions to environmental permits stated in the Environmental Permitting (England and Wales) Regulations 2007, and exemptions to waste management licences in the Waste Management Licensing Regulations 1994 for Scotland. The Environment Agency Code of Practice 2006 states in accordance with their Enforcement and Prosecution Policy that failure to have a waste management licence or environmental permit, when dealing with knotweed on a site, would not normally lead to prosecution if the Agency’s Code of Practice is followed.
The Control of Pesticides Regulations 1986 requires any person who uses pesticides to take all reasonable precautions to protect the health of human beings, creatures and plants, to safeguard the environment and to avoid contaminating water. For application of pesticides in or near water, approval from the Environment Agency should be sought before any pesticide is used.