Invasive Weeds & Law
The Spread of native invasive weeds
- BE AWARE: Causing the spread of Japanese knotweed has the potential to make you liable for prosecution.
- It is the RESPONSIBILITY of the owner of a site or property to manage Japanese knotweed.
Wildlife and Countryside Act 1981
For those plants listed on Schedule 9 part II of the Wildlife and Countryside Act 1981 It is an offence under section 14 (2) (a) of the act to “plant or otherwise cause Japanese knotweed to grow in the wild.”
Prosecution - Local authorities and even the police have enforcement functions under the act. Should an offence be committed, a magistrate’s court could impose a maximum fine of £500, a prison sentence of up to 6 months or even both as modified in the Countryside and Rights of Way Act 2000 for England and Wales.
Nuisance - A term used to describe the invasive weed however the spread of Japanese knotweed onto neighbouring land could be considered a private nuisance NOT a statutory nuisance.
Statutory nuisance - defined as “any premises in such state as to be prejudicial to health or a nuisance”, under part III of the environmental Protection Act 1990, the nuisance has to be a disease or health related matter, not physical risk of injury or damage, therefore Japanese knotweed can definitely not be a statutory nuisance.
Private nuisance - defined as “unlawful interference with a persons use or enjoyment of land, or some right over, or in connection with it. [Read v Lyons & Co Ltd, (1945) K.B.216] This principle allows landowners or tenants of leasehold properties who have a right to the land affected to bring an action against the person responsible. In addition, the rule of Rylands v Fletcher (1868) relates to strict liability for foreseeable damage caused by escapes resulting from non natural uses of land.
The Environmental Protection Act 1990
Soil and waste containing Japanese knotweed 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 license. 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 could 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, caries, 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.
Japanese knotweed 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. 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.
Hazardous Waste England and Wales Regulations 2005 Untreated knotweed is not regarded as ‘Hazardous Waste’ but material containing knotweed that has been treated with certain herbicides that persist in soil for extended periods with the possibility of leaching and causing harm to the surrounding environment could be.
Control of Pesticides Regulations 1986
Treatment of knotweed using pesticides requires that all persons follow The Control of Pesticides Regulations 1986 and comply with Control of Substances Hazardous to Health Regulations 2002. Persons should take all reasonable precautions 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.
Codes of Practice
In addition, to existing legislation there are codes of practice which provide guidance concerning Japanese knotweed. For more information you may wish to refer to the below;