Q&As

In circumstances where a company has been selling product which is contaminated with Japanese knotweed, what potential liability could the company face and could the directors be personally liable?

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Published on LexisPSL on 06/02/2018

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • In circumstances where a company has been selling product which is contaminated with Japanese knotweed, what potential liability could the company face and could the directors be personally liable?
  • Environmental liability
  • Potential liability under the Wildlife and Countryside Act 1981
  • Potential liability in respect of waste under the Environmental Protection Act 1990, Pt II
  • Potential liability under the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154
  • Potential liability under the Contaminated Land regime in the Environmental Protection Act 1990, Pt IIA
  • Other potential liability as an owner or occupier
  • Local authority notice
  • Community protection notice
  • Civil liability
  • More...

In circumstances where a company has been selling product which is contaminated with Japanese knotweed, what potential liability could the company face and could the directors be personally liable?

Environmental liability

The company could be liable under a number of environmental regimes, including criminal liability under the:

  1. Wildlife and Countryside Act 1981 (as amended) (WCA 1981)

  2. Environmental Protection Act 1990 (EPA 1990)

  3. Environmental Permitting (England and Wales) Regulations 2016 (EPR 2016), SI 2016/1154

Civil and other liability may also arise as set out below.

Potential liability under the Wildlife and Countryside Act 1981

Offence

Japanese knotweed (Polygonum cuspidatum) is an invasive non-native species (INNS). It is an offence under WCA 1981, s 14(2) if any person ‘plants or otherwise causes to grow in the wild' a plant listed in WCA 1981, Sch 9 Pt II (eg Japanese knotweed).

Whether or not the company has committed an offence is likely to depend on how and where its customers have used the product and whether this has caused it to grow in the wild. Defra and the Welsh Assembly have published guidance on section 14 of WCA 1981. Paragraphs [4]–[6] provide guidance on the meaning of ‘the wild’ and paragraphs [21]–[25] provide guidance on the meaning of ‘planting in the wild’ and ‘causing to grow in the wild’. In particular, see paragraph [25] in relation to negligent or reckless behaviour.

A person convicted of

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