The legal nuisance that are 'INNS'

The Invasive Alien Species (Enforcement and Permitting) Order 2019 (SI 2019/527), which will come into force on 1 October this year, introduces criminal and civil penalties in respect of these troublesome species. Construction Solicitor, Emma Styles investigates.

Invasive non-native species (INNS) are plants and animals that are introduced accidentally or deliberately into a natural environment where they are not normally found, which can cause serious consequences for their new environment.

The most common INNS is Japanese Knotweed which was introduced into Great Britain in the 19th century as an ornamental plant but is now seen as one the most invasive plants in the UK. Japanese Knotweed can cause physical damage to buildings and land, which in turn affects the value and marketability of property.

The presence of Japanese Knotweed on a development can cause delays with the sale of plots or result in potential claims from purchasers where it has not been properly eradicated. The removal of INNS can be expensive and time-consuming and if it is not done properly then those handling the INNS could face civil or criminal sanctions.

The EU Invasive Alien Species Regulations 2014 (the “Regulations”) came into force on 1 January 2015 and sought to address the problems of INNS across the EU. The Invasive Species (Enforcement and Permitting) Order (the “Order”) comes into force on 1 October 2019 and introduces an enforcement regime for the Regulations including civil and criminal penalties for the unlawful introduction of INNS.

If/when the UK leaves the European Union the Invasive Species (Amendment etc) (EU Exit) Regulations 2019 will come into force and will ensure that the strict regulations that are in place for INNS are maintained.

The Order imposes criminal penalties for the most serious breaches of the Regulations (intentional introduction, keeping, sale or release of INNS) and for ancillary offences such as making false statements, attempts to commit offences and obstruction.

A company and its officers can be liable for an offence where it is proven to have been committed with their consent. Similar provisions apply to partners and partnerships. A person guilty on summary conviction can be imprisoned for a term not exceeding 6 months, fined, or both. A person convicted on indictment can be imprisoned for a term not exceeding two years, fined or both.

A person may have a defence to criminal offences where he holds a licence or permit and there are transitional provisions for commercial and non-commercial owners. Where the holder of a licence or permit is determined to have committed an offence it will void the permit or licence, which may not be re-issued for 5 years.

Where criminal sanctions are not appropriate, civil sanctions allow a proportionate response to minor breaches such as monetary penalties, compliance, restoration and stop notices, enforcement and third-party undertakings.

The Order gives an enforcement officer the power to enter premises without a warrant where there are grounds for suspicion that INNS are being kept on those premises. Entry to private premises is only permitted with a warrant from a justice of the peace. Entry must take place at a reasonable time and notice must be given unless:

1. reasonable efforts to agree an appointment have failed;
2. notice would defeat the object of the entry;
3. an enforcement officer has reasonable grounds to suspect that an offence is being committed; or
4. in an emergency.

Conclusion

In short, a failure to take measures to control INNS, or prevent them from spreading to the wild, could be a statutory offence, as well as a ‘common law’ nuisance. Accordingly, developers should ensure that where INNS are present on their site they should be properly removed by a licenced expert to prevent civil or criminal penalties.