Rowland v The Environment Agency

Factual and Procedural Background

This action concerns the public rights of navigation ("PRN") over a non-tidal part of the River Thames known as Hedsor Water. The Plaintiff, suing in her own right and as executrix of her late husband, is the registered proprietor of the Hedsor Wharf Estate ("Hedsor Estate"), which includes one bank of Hedsor Water, parts of the opposite bank, and the entire riverbed of Hedsor Water. The central issue is whether the PRN that once undoubtedly existed over Hedsor Water continue to subsist or have been extinguished or ceased to be exercisable.

The dispute largely focuses on two weirs at the upper and lower ends of Hedsor Water ("the Weirs") and the obstructions they caused to the exercise of PRN. The land opposite the Hedsor Estate, known as "Sashes Island," has been owned by the Defendant's predecessor since 1926 and has provided access to Hedsor Water for exercising any subsisting PRN over land not owned by the Plaintiff.

Historically, Hedsor Estate was owned by successive Lords Boston until it passed through various owners and ultimately to the Plaintiff’s late husband, who used it as his country home. Upon his death, the Plaintiff became the executrix and sole beneficiary, with title registered in her name.

The responsibility for the navigation of the Thames has passed through various public bodies, currently vested in the Defendant, a public body charged with preserving navigation and promoting recreational use of the Thames waters.

The Plaintiff claims that the PRN over Hedsor Water have been extinguished or are no longer exercisable, relying on statutory construction of the Thames Preservation Act 1885 and doctrines such as legitimate expectation, based on acknowledgments by the Navigation Authorities ("NA") that there were no PRN. The Defendant opposes these claims, asserting that PRN remain over Hedsor Water and that it retains statutory functions concerning it.

The case raises two principal legal issues: (1) whether PRN existing in 1885 can be extinguished by proof of public exclusion over a 20-year period or by rights of riparian owners to obstruct navigation; and (2) whether the doctrine of legitimate expectation, potentially reinforced by the Human Rights Act 1998, can entitle a riparian owner to extinguishment of PRN or other relief.

Legal Issues Presented

1. Whether public rights of navigation over Hedsor Water subsisting in 1885 were extinguished by exclusion of the public for the 20 years prior to the 1885 Act or by riparian owners’ rights to obstruct navigation.
2. Whether the doctrine of legitimate expectation, possibly reinforced by the Human Rights Act 1998 and the European Convention on Human Rights, entitles the Plaintiff to extinguishment of PRN or other relief regarding their exercise.

Arguments of the Parties

Plaintiff's Arguments

• Section 2 of the 1885 Act operated to extinguish the pre-existing PRN over Hedsor Water due to effective exclusion of the public during the 20-year period prior to the Act.
• Section 5 of the 1885 Act authorizes the Plaintiff to replace any obstruction to PRN removed by the Defendant.
• The Plaintiff claims a legitimate expectation arose from the NA’s conduct and representations that Hedsor Water was private, and this expectation was relied upon in purchasing the estate.
• Under the Human Rights Act 1998, the Plaintiff asserts protection of this legitimate expectation as a possession under Article 1 of Protocol No 1 to the European Convention on Human Rights.

Defendant's Arguments

• PRN continue to subsist over Hedsor Water, supported by statutory provisions and historical practice.
• The 1885 Act did not extinguish PRN over Hedsor Water nor confer rights to obstruct navigation on the riparian owner.
• The doctrine of legitimate expectation cannot apply to confer extinguishment of PRN where the public body has no power to do so (ultra vires).
• The Defendant’s decision to assert PRN rights is lawful and proportionate under the Human Rights Act and Convention law, balancing public interest and private rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the historical facts, statutory framework, and legal principles relating to PRN over Hedsor Water. It analysed the powers and duties of the Navigation Authorities, the history and effect of the 1843 Agreement, and the legislative provisions from the 17th to 20th centuries.

The court concluded that PRN over Hedsor Water have existed since time immemorial and cannot be extinguished by disuse or physical obstruction alone, but only by clear statutory authority, which was absent here. The 1885 Act extended PRN over all parts of the Thames but contained protective provisions for riparian owners only as to new or extended rights, not pre-existing PRN. The court found that sections 2 and 5 of the 1885 Act do not apply to Hedsor Water in a way that extinguishes PRN or grants rights to obstruct navigation to the Plaintiff.

The court rejected the Plaintiff’s contention that the 1795 or 1812 Acts granted power to extinguish PRN or to agree to their exclusion, finding no such power was conferred. The arrangements made by the Navigation Authorities with Lord Boston were temporary, precarious, and not legally binding agreements to exclude public navigation.

Regarding legitimate expectation, the court applied established principles requiring that a public body must have the power to make and fulfill the representation. As the Defendant had no power to extinguish PRN, any expectation to that effect was ultra vires and could not give rise to substantive relief. The representations by officials were not sufficiently unequivocal or authoritative to create a legitimate expectation of permanent extinguishment.

The court further held that even if a legitimate expectation existed, the Defendant’s decision to assert PRN rights was fair and proportionate, balancing public interests and the Plaintiff’s private interests. The Human Rights Act 1998 and Convention law do not alter this conclusion; the ultra vires nature of the expectation limits the relief available. The court considered comparative jurisprudence, notably Pine Valley, and found the Plaintiff’s expectation was not reasonable or entitled to protection under Article 1 of Protocol 1.

Holding and Implications

The court’s final decision is that the Plaintiff’s claims fail on both bases: statutory construction and legitimate expectation.

DISMISSED

The court declared that public rights of navigation continue to subsist over Hedsor Water and that the Defendant is entitled to perform its statutory functions with respect to that water. The Plaintiff has no right to exclude the public or to obstruct navigation based on the 1885 Act or any legitimate expectation claim. The decision directly affects the parties by confirming the continuing public navigation rights over Hedsor Water, but it does not establish any new legal precedent beyond the application of existing principles to the facts of this case.