Rowland v Environment Agency

A public right of navigation cannot be lost through disuse. Clear statutory authority is required to extinguish it. A long-standing, consistent practice by a public authority may nevertheless create a legitimate expectation, even without an express promise.

An expectation associated with property may constitute a possession protected by Article 1 of the First Protocol despite arising from an ultra vires practice. The authority cannot be compelled to act beyond its statutory powers. It must instead take the expectation into account and strike a fair balance between the individual’s interests and subsisting public rights. Resiling from the practice is proportionate where the authority must preserve those rights and gives appropriate assurances to moderate the resulting prejudice.

The owner of Hedsor Wharf claimed that Hedsor Water, a former section of the Thames mainstream, had become private. Navigation authorities had treated it as private for many decades, although a public right of navigation had existed from time immemorial.

Lightman J dismissed the claim and declared that Hedsor Water remained subject to the public right of navigation and that the Environment Agency could perform its statutory functions there. The owner appealed. She relied on sections 2 and 5 of the Thames Preservation Act 1885, substantive legitimate expectation, Article 8 of the Convention and Article 1 of the First Protocol.

The central questions were whether legislation had extinguished the public right and, if not, whether the Agency’s long-standing practice required it to continue treating the water as private or otherwise constrained the exercise of its statutory powers.

1. Appeal dismissed, with a supplemental declaration. Peter Gibson LJ delivered the leading judgment. May and Mance LJJ agreed that the statutory arguments failed and that the Agency could not be required to treat Hedsor Water as private. The declarations below were supplemented to require the Agency, when exercising its statutory functions, to take account of the parties’ former common assumption that Hedsor Water was private.

2. A public right of navigation cannot be lost through disuse. Neither section 22 of the Thames and Isis Navigation Act 1795 nor section 8 of the Thames and Isis Navigation Act 1812 impliedly authorised its extinction. Such a power could not be inferred from enactments intended to improve navigation, particularly where it would remove rights long enjoyed by the public.

3. Section 2 of the Thames Preservation Act 1885 did not make Hedsor Water private. The alleged 1846 arrangement was neither a legally binding agreement nor an agreement for enjoyment as a private channel. “Lawful title” required an existing entitlement to private enjoyment; 20 years’ enjoyment was an additional condition, not a substitute for title. The first proviso to section 4 preserved pre-existing public navigation rights.

4. Section 5 protected qualifying obstructions erected by persons such as riparian owners, not weirs erected by the navigation authority under statutory powers. It legitimised an existing obstruction sufficiently to prevent a demand for its removal under that section. It conferred no licence to rebuild an obstruction removed by the Agency and no immunity from other remedies.

5. The Agency’s consistent conduct over at least 80 years represented that no public right of navigation existed. That practice, and the owners’ reasonable reliance upon it, founded a legitimate expectation. Domestic law could not, however, compel fulfilment of an expectation which required the Agency to exceed its powers or extinguish public rights.

6. The expectation associated with Hedsor Wharf was a possession protected by Article 1 of the First Protocol. An ultra vires origin did not automatically prevent that conclusion. The interference was nevertheless lawful, justified and proportionate. The Agency was obliged to preserve the public right, intended only to remove misleading signs, promised not to promote public use and undertook to minimise the effect upon the owner.

7. Mance LJ held that the expectation required sensitive consideration, consultation where appropriate and mitigation while the appellant owned and occupied the property. It did not justify indefinite protection for successors or continuing judicial supervision. May LJ agreed in the result, but considered the expectation exceptionally strong and the outcome unjust. His suggested reconsideration of the domestic ultra vires rule was not open to the Court of Appeal.

1. Court of Appeal (Civil Division): Dismissed the appeal but supplemented the declarations to require the Environment Agency to take account of the former common assumption that Hedsor Water was private.
2. High Court: Lightman J dismissed the claim and declared that Hedsor Water remained subject to public rights of navigation and that the Agency could perform its statutory functions there. The judgment’s citation is not stated.