Japanese Knotweed, Legislation and Regulations
Wildlife and Countryside Act 1981
Schedule 9 of the WCA lists plant (and animal) species that are, “not ordinarily resident in and is not a regular visitor to Great Britain in a wild state”.
Section 14(2) of the Wildlife and Countryside Act (WCA) 1981 states that, “if any person plants or otherwise causes to grow in the wild any plant which is included in Part II of Schedule 9, he shall be guilty of an offence”. This could include spreading the plant through cuttings, mowing or digging up the roots and disposing of the waste in a bin. Interestingly, the statement “in the wild” refers to residential gardens and parks, not just open stretches of our countryside.
Guidance by Defra states that if, "a landowner who knowingly allows a Schedule 9 species that they did not introduce, to accumulate on his land and create a problem as it spreads to other areas of the wild, and who makes a conscious decision to do nothing about it, is 'causing it to grow' " under Section 14 of Schedule 9 of the WCA.
Penalties for a Section 14 offence have been modified by the Countryside and Rights of Way Act 2000 for England and Wales. A Magistrates’ Court can now impose a maximum fine of £5000 or a maximum prison sentence of six months, or both. A Crown Court can impose an unlimited fine or a maximum prison sentence of two years, or both.
Any materials containing or made up of Schedule 9 Invasive Weeds is considered to have the potential to cause ecological harm and is deemed "Controlled Waste? or "Directive Waste? (Waste Management Licensing Regulations 1994).
Under Section 33(1)(a) and (1)(b) of the Environment Protection Act 1990, it is an offence to deposit, treat, keep or dispose of controlled waste without a licence. Exemptions from licensing are available in certain circumstances as set out in Schedule 3 of the Waste Management Licensing Regulations 1994, as amended.
Section 33 (1)(c) of the Environmental Protection Act 1990 makes it an offence to keep, treat or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health. A magistrates? court can impose a maximum fine of £20,000 or a maximum prison sentence of 6 months, or both. A Crown Court can impose an unlimited fine or a maximum prison sentence of 2 years, or both.
Section 34 of the Environmental Protection Act 1990 places a duty of care on any person who imports, produces, carries, keeps, treats or disposes of controlled waste. Their duty is to ensure that:
- No-one else disposes of the waste unlawfully or in a manner likely to cause pollution of the environment or harm to human health
- Waste does not escape
- Waste is only transported by a carrier that is either registered or exempt from registration by the Controlled Waste Registration of Carriers and Seizure of Vehicle Regulations 1991
Breach of the duty of care under Section 34 of the Environmental Protection Act 1990 is a criminal offence. The Environment Agency is responsible for enforcement and a person found guilty of an offence under this section is liable to a fine not exceeding £5000 in the magistrates’ court and to a fine in the Crown Court.
The provisions concerning waste transfer notes are set out in the Environmental Protection (Duty of Care) Regulations 1991 as amended. Failure to comply with these provisions is an offence.
The Environmental Protection Act 1990
Because it is classified as Controlled Waste, invasive plant materials must be safely disposed of at an appropriately licensed landfill site in accordance with the Environmental Protection Act 1990 (Duty of Care) Regulations 1991. To ensure safe disposal, contaminated soils must be buried to a depth of at least 5 metres. Section 34 of the Environmental Protection Act 1990 also places a duty of care on all waste producers to ensure that a written description of the waste and any specific harmful properties is provided to the site operator.
Hazardous Waste England and Wales Regulations 2005
Untreated knotweed is not regarded as a "Hazardous Waste? but material containing knotweed that has been treated with certain herbicides (those that persist in soil for extended periods with the possibility of leaching and causing harm to the surrounding environment) could be. Additionally, excavated knotweed waste contaminated with high levels of heavy metals or other hazardous materials could be categorised as hazardous and must be disposed of at a licensed hazardous waste landfill site.
Control of Pesticides Regulations 1986
Treatments that use pesticides require that all persons follow The Control of Pesticides Regulations 1986 (amended 1997) and comply with Control of Substances Hazardous to Health Regulations 2002 (COSHH). All reasonable precautions should be taken to protect the health of human beings, creatures and plants, safeguard the environment and, in particular, avoid the pollution of water. Approval from the Environment Agency should be sought before application of pesticides in or near water. People applying herbicides should be trained and qualified to do so.
Community Protection Notices
The government has given both the Police and Local Authorities the power to impose Community Protection Notices on people who allow invasive weeds to negatively impact others. As part of the Antisocial Behaviour bill the government now recognise that invasive weeds and in particular Japanese knotweed are often the cause of disputes. The downside is that these powers are not mandatory so some authorities may opt out.
Community Protection Notices
Having had experience in working with Community Protection Notices the process start with an investigation by the authorities to establish who has invasive weeds within their property and to find out what they are doing about it. In these cases it is normal for there to be several properties in question with the dispute normally surrounding the fact that a property owner/s have allowed knotweed to spread to other property. The authorities would establish the facts and seek to issue an improvement notice. This would give landowners time implement appropriate act to avoid being put on notice [what does this mean affine? Who much]. In our experience an invasive weed specialist can take the pain out of these situations through the provision of a management plan that works for all parties having appropriate counter measures to deal with Community Protection Notices.
Allowing Invasive Species to spread onto neighbouring land could be considered to be a private nuisance but not a statutory nuisance. “Unreasonable interference with the enjoyment of land” could be claimed within UK courts.
Selling Property with Japanese Knotweed
Property vendors have to complete a Law Society Form (TA6) which legally requires them to honestly answer questions about their property. The form now requires vendors to disclose information relating to Japanese knotweed previously or currently present within or the curtilage of the property. Failure to correctly answer questions relating to Japanese knotweed would make the vendor liable to claims from the buyer if they subsequently find out the vendor misled them.
Japanese Knotweed and Valuation Surveys
Surveyors and valuers who complete surveys for mortgage lenders are also obliged by their professional membership to identify Japanese knotweed. The Royal Institute of Chartered Surveyors (RICS) make surveyors and valuers comply through their Red Book policy which states that they should be able to identify Japanese knotweed and bring it to the attention of both lenders and buyers.
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