- Home
- About Ashfords
- Services
- International
- Our partners
- Deals Done
- Careers
- Online Services
- Articles & Publications
- Accidents and Injuries
- Construction
- Commerial Contracts
- Corporate
- Crime
- Employment
- Family
- Housing & Property Litigation
- Insolvency & Debt Recovery
- Intellectual Property and Technology
- Litigation
- Marine & Transport
- PFI / Projects
- Planning and Environment
- Planning Reform Bill - Nationally significant infrastructure projects
- Planning Reform Bill - Changes to existing provisions
- Planning Reform Bill - The Community Infrastructure Levy
- Anticipating the Planning Gain Supplement
- Japanese Knotweed on Development Sites
- Statutory enforcement notices - the importance of proper service
- Village Greens: a developers nightmare
- Recent Case Law Developments in Contaminated Land
- Property
- Trusts & Estates
- Articles & Publications
- Press & Events
- Offices
Japanese Knotweed on Development Sites
Introduction
Japanese Knotweed is an invasive, non-native plant which can cause extensive damage to building foundations, roads and other constructions. It can also choke and damage riverbanks and is a litter trap. The Environment Agency has now published a code of practice on managing Japanese Knotweed on developments sites, "The Knotweed Code of Practice".
Developers need to be aware of the potential risks and liabilities involved in developing sites contaminated by Japanese Knotweed. The responsibility for the control of Japanese Knotweed generally lies with the owner or occupier of land. Japanese Knotweed (as yet) does not fall within the contaminated land regime, so local authorities and the Environment Agency have no duty to remediate land contaminated with it.
Liability and offences
The Wildlife and Countryside Act 1981 (s.14) creates an offence of planting Japanese Knotweed or otherwise causing it to grow in the wild. Developers and owners will need to show that they took all reasonable steps and exercised all due diligence if they are to mount a successful defence. Currently the penalty is up to £5,000 or six months' imprisonment on summary conviction in the magistrates' courts, or an unlimited fine and up to two years' imprisonment on conviction on indictment in the Crown Court.
Part II of the Environmental Protection Act 1990 deals with controlled waste and waste soil infested or contaminated with Japanese Knotweed is classified as controlled waste and the various duties apply under that regime. A waste management licence will be needed and various offences of failing to keep, treat or dispose of controlled waste safely and appropriately exist.
Preventing the spread of Japanese Knotweed
Japanese Knotweed generally spreads from one site to another by soil excavation and disturbance – parts of the stem, crown or rhizome may be moved around the site, imported on to the site in soil and rubble (including fly-tipping of garden waste) or exported off-site in waste containers and on vehicles. The Code contains guidance on preventing the spread within development sites already infested with Japanese Knotweed and identifies useful measures to prevent infestation of clean sites.
On-site treatment and disposal of Japanese Knotweed
The Code offers guidance on the various methods of treating and disposing of Japanese Knotweed at site. The key point is keeping any excavation to a minimum and as a last resort and taking steps to prevent the spread within the site. However, where it is necessary to disturb areas of Japanese Knotweed, there are various measures which, depending on the circumstances, may be used individually or in combination. These include cutting, burning, pesticides (refer to the Code), burial and creating a bund.
Off-site disposal of Japanese Knotweed
Off-site disposal should be a last resort, given the risk of further spread and escape, particularly in transit. Soil and materials contaminated with Japanese Knotweed can only be disposed of at a suitably licensed or permitted disposal facility – not all landfill operators are licensed to receive it and not all will agree to accept it. The site operator must be informed of the presence (or risk) of living Japanese Knotweed in the waste consignment. Even when licensed, it is best to contact the facility well in advance to check that they have a suitable area.
Waste hauliers need to check for Japanese Knotweed unless they know it is present already. The Code offers further guidance on measures to prevent inadvertent escape, including the inspection, brushing down and washing of vehicles.
Long-term management
The Japanese Knotweed rhizome has apparently been known to survive for at least 20 years. The likelihood of regrowth will depend on the effectiveness of the treatment undertaken. It is important that owners have a record of the location of Japanese Knotweed including where it has been buried and other treatment methods used. Apart from the risk of regrowth and future damage, without such a record, further development, excavation or disturbance could rekindle or spread the infestation.
Useful tools in the Code
The Code contains a useful guide to identifying Japanese Knotweed, including pictures and details of plants sometimes mistaken for it. There is also a comprehensive model management plan which developers and site owners might find helpful.
What should developers and site owners do?
The following steps will help to avoid the spread of Japanese Knotweed and liability for related offences.
- Check for Japanese Knotweed prior to purchase and regularly thereafter
- Train workers and employees to identify Japanese Knotweed
- Minimise excavation of Japanese Knotweed and areas nearby
- Protect the site from imported contamination – topsoil, waste and fly-tipping.
- Infested soil is controlled waste and must go to suitable landfill sites.
- Have a Japanese Knotweed Management Plan and a person to oversee it.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
|
