Tackling some knotty issues
Amy Sevier considers several recent cases, including a welcome decision regarding Japanese knotweed and a ruling affecting tenants advertising their properties on Airbnb
The case of Williams v Network Rail Infrastructure  UK CC (2 February 2017) has been a welcome and long-awaited decision for people who have suffered from Japanese knotweed infestations caused by neighbouring landowners.
The presence of knotweed can cause physical damage to buildings owing to its long spreading roots. It is also expensive and difficult to eradicate. It can result in people being unable to sell, purchase, or insure property where it is evidently present.
Mr Williams and Mr Waistell, two neighbouring owners of semi-detached bungalows in South Wales, brought claims against Network Rail in private common law nuisance after one of the neighbours found that he was unable to sell his home due to the presence of knotweed. The knotweed originated from the railway embankment to the rear of the properties, where it had been present for over 50 years.
The court found that, on the evidence, the roots had spread underneath the bungalows but they had not actually caused any damage to the buildings themselves or to the surrounding subsoil. In order to establish their claim, the neighbours needed to show that Network Rail had caused an unlawful interference with the use and enjoyment of their respective land, and further, that the nuisance was substantial or unreasonable.
The judge found Network Rail had ‘constructive knowledge’ of the potential impact of Japanese knotweed owing to a RICS and Property Care Association publication from 2012/13 which highlighted the potential damage that knotweed could cause.
Network Rail was liable in common law nuisance to compensate Williams and Waistell for:
The cost of a guarantee-backed treatment programme to eradicate the knotweed;
Residual diminution in value of their respective properties (i.e. post treatment); and
General damages (loss of amenity and quiet enjoyment).
While Williams is only a county court judgment, it remains significant as it confirms that knotweed can be an actionable nuisance before it has caused physical damage on someone’s land owing to its effect on amenity value. The case is good news for individuals who find their properties blighted by knotweed originating from neighbouring land and worrying news for major landowners like Network Rail which have, until now, been able to give scant regard to requests to treat or remove knotweed.
Interference with a right of way
The case of Kingsgate Development Projects Limited v Jordan and another  EWHC 343 (TCC) considered the interference with a right of way.
Mr and Mrs Jordan had purchased a property, Ferndown, in 2012. There was a right of way over a track on their land to the adjacent Kingsgate Farm. The right of way had been granted in 1960 when the property was a poultry farm. Kingsgate Farm had been purchased by the claimant in 2014 and there was no dispute about the existence of the right of way, but Kingsgate alleged that the Jordans had reduced the right of way and interfered with its use.
When the Jordans purchased the property there were already two gates along the right of way: the first was at the entrance to the track from the main road (an electric gate, which opened at the push of a button and also closed automatically); the second was unlocked and was positioned at the entry to Kingsgate’s land. The Jordans had erected a third gate which was located between the two (the three gates were all located within a 100-metre stretch).
It is generally accepted that the presence of a gate is not necessarily an interference with a private right of way. To be actionable the interference must be substantial and the facts of each case will have to be considered in order to come to a conclusion.
There can be no substantial interference if, despite the obstruction, the right of way can be used substantially as conveniently as when it was originally granted.
It was argued that the first gate narrowed the original right of way at that point along the track to 4.5 metres. However, the narrowest point along the entirety of the right of way was in fact only 2.67 metres. The judge found that it was the narrowest part of the right of way which would determine the size of vehicle that would be able to use it, as any vehicle that could pass through the narrowest point of the right of way could necessarily pass through the first gate as well. The fact that the first gate reduced the width at one point along the right of way did not constitute a substantial interference.
The judge also found that the gate at the entry to Kingsgate’s land did not constitute a substantial interference. However, the judge was concerned about the fact that there were three gates within less than 100 metres of one another and found that this proximity amounted to a substantial interference. He ordered that the middle gate, installed by the Jordans, be removed.
Excessive helicopter noise
The case of Peires v Bickerton’s Aerodrome  EWCA Civ 273 reached the Court of Appeal in April 2017.
The claimant’s home, a substantial dwelling with six receptions and staff accommodation, was located next to an aerodrome. The aerodrome had conducted helicopter training, including landing and taking off from slopes near to the property, for at least 20 years.
The claimant brought a claim that the aerodrome had wrongfully caused or permitted excessive noise, causing her and her tenants nuisance and annoyance. At first instance, the judge concluded that the noise from helicopters interfered with the enjoyment of the claimant’s land.
The court ordered an injunction which limited the times and specified the location at which the defendant could carry out the particular operations which were complained of.
Since 1920 there has been statutory immunity against action in trespass or nuisance caused by aircraft which are ‘in flight’. At first instance the court held the immunity did not apply since the nuisance complained of was to do with training operations and did not involve a ‘flight’ within the meaning of the Civil Aviation Act 1982.
On appeal, the aerodrome was successful in overturning the injunction. The Court of Appeal held that the judge’s interpretation of the statute could not be justified and that ‘flight’ necessarily included helicopters manoeuvring to perform standard training activities.
Towards the end of 2016 the case of Nemcova v Fairfield Rents Ltd  UKUT 303 (LC) caused a stir among users of websites such as Airbnb. The case concluded that short-term lets constituted a breach of the user covenant which required the flat to be used only as a private residence. While all leases are different, this is a common covenant, and some leases would have greater restrictions than those in Nemcova. The upshot is that advertising a flat on websites such as this could result in a landlord being entitled to forfeit the leasehold interest.
Since then, there have been a few more cases that have come before the tribunal and county court on similar facts and the courts have been taking a robust approach against delinquent leaseholders. The most recent case, heard in Central London County Court, was brought by Ashley Gardens Freeholds Limited, the landlord of an elderly poet, Ms Linda Marinelli Landor.
The landlord sought to forfeit the long lease for breach of the user covenant. This was not the first time that action had been taken against Ms Landor for running a B&B business from her flat. Over the years she had upset several neighbours with the constant comings and goings and all the noise that this entailed. Ms Landor claimed that guests were friends and family but the evidence showed that she had advertised rooms on websites such as Airbnb.
The judge found that she was in breach of the lease and ordered forfeiture. Somewhat compassionately, the order was subject to a six-month delay so as to give Ms Landor an opportunity to sell the flat. It will be interesting to see how this line of case law develops over the coming months: I am sure that there will be a few more twists and turns in the road ahead.
Amy Sevier is an associate at SA Law