Why is the Code of Practice Necessary?
The Wildlife & Countryside Act 1981 creates an offence
for any person who “plants or otherwise causes to grow in the wild” any plant
listed in Schedule 9 to the Act or a hybrid of such a plant. However, it is a defence to prove that the
accused took all reasonable steps and exercised all due diligence to avoid
committing the offence and therefore complying with the terms of the Code of
Practice would provide a complete defence to any charge.
Japanese Knotweed is listed in the Schedule to the Act amongst
many other unwelcome species. However,
it is the extreme persistence and vitality of Japanese Knotweed that has made
it of particular concern. The revised
Code of Practice makes it clear that soil screening and sieving to remove
Knotweed may be effective. However, the
screened soil must still be regarded as potentially containing viable Knotweed rhizomes
(roots capable of sprouting) and must not be re-used off site or sold for
re-use. If soil is taken off site it
should be disposed of at an approved landfill.
If the soil has been sufficiently screened then it may be re-used on
site in accordance with the provisions of the Code.
Controlled Waste
The Environmental Protection Act 1990 sets out in Part II
provisions regarding “controlled waste”.
Soil or plant material contaminated with Japanese Knotweed that is to be
discarded is highly likely to be classified under the Act as controlled waste. This prevents anyone from knowingly causing
or permitting such waste to be deposited in or on any land unless a waste
management licence authorising them to deposit is in force and the deposit is
in accordance with that licence. A
licence will also be required to treat such waste or to retain it on any
land. In short a suitably licensed
person will be required to remove or deal with such material. Thus Knotweed that is cleared from a
development site will need to be dealt with by a licensed contractor correctly
described and disposed of appropriately.
Re-use on Site
It is still acceptable to re-use treated soil on site
without the need for a waste management licence or exemption. The Code of Practice makes practical
suggestions on how the soil can be re-used on site and in particular advises
against putting it near to a watercourse, particularly as it may have been
treated with a herbicide.
Any area where the soil is used needs to be identified in a
suitable management plan and inspected.
It is acknowledged that the biggest problem is that Knotweed can take
hold of a site prior to redevelopment.
Again there are suggested herbicides that can be used to clear the site
as well as sieving.
Any developer should be aware of the Code of Conduct,
particularly when assessing an open site and particularly in winter when nature
die back may have disguised the infestation.
It should be noted that land for Remediation Relief is
available for remediation of land infested with Knotweed the same way that it
is available for other contaminated land.
A person found guilty of an offence under the Wildlife &
Countryside Act is liable on conviction in a Magistrates Court for up to 6
months imprisonment and/or a fine (not exceeding the statutory maximum which is
currently £5,000.00) and in a Crown Court conviction could result in up to 2
years imprisonment and/or a fine.
Failing to deal with a Knotweed problem will inevitably
cause delay and could potentially impact on the saleability of any
development. Not to mention affect the
developer’s standing with the local authority.
Enquiries are always raised on development sites regarding
Japanese Knotweed, but it may be difficult to prove the Vendors knowledge of
the problem, particularly in Winter, there is no substitute for careful inspection
by someone who knows what they are looking for, and this should lead to
negotiation on remediation of the site by the Vendor or an allowance for the
remediation costs prior to any purchase.
No comments:
Post a Comment