Rowland v Environment Agency
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MAY,LORD JUSTICE MANCE |
| Judgment Date | 22 January 2004 |
| Neutral Citation | [2003] EWCA Civ 1885,[2004] EWCA Civ 37 |
| Docket Number | A3/2003/0187,Case No: A3/2003/0187 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2004 |
[2003] EWCA Civ 1885
Lord Justice Peter Gibson
Lord Justice May and
Lord Justice Mance
Case No: A3/2003/0187
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Lightman J.
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Lester QC and Mr Robert Howe (instructed by CMS Cameron McKenna. Mitre House, 160 Aldersgate Street, London EC1A 4DD) for the Claimant
Mr Peter Village QC and Ms Lisa Busch (instructed by Clarks, Great Western House, Station Road, Reading RG1 1JX) for the Defendant
Peter Gibson L.J.:
Introduction
This appeal concerns a stretch of the River Thames just below Cookham in Berkshire known as Hedsor Water, which is a 3/4 mile bend in the non-tidal part of the natural mainstream. On the northern bank are the house and grounds known as Hedsor Wharf. The house is situated about 50 yards from the river, with the main rooms facing the river and open lawns leading down to the river bank. It has been the country home of the Claimant, Josie Rowland, since 1968 when it was purchased by a Lonhro Ltd. subsidiary for the occupation of her late husband, "Tiny" Rowland, and herself. On his death in 1998 she, as his executrix and sole beneficiary under his Will, took Hedsor Wharf, becoming the registered owner on 22 November 200Included in Hedsor Wharf are one bank of Hedsor Water, parts of the other bank and the whole of the river bed of Hedsor Water.
The parts of the other bank of Hedsor Water which are not part of Hedsor Wharf are parts of Sashes Island. The southern edge of the island is a cut ("the Cut") made in 1830 by the Commissioners for the River Thames ("the Commissioners") to bypass Hedsor Water which, for various physical reasons, was difficult to navigate. Sashes Island vested in the successors to the Commissioners, the Conservators for the River Thames ("the Conservators"), in 1926 and is now vested in the Defendant, the Environment Agency. The Defendant is the successor to the National Rivers Authority which was the successor to the Conservators. The Defendant is a public authority created under the Environment Act 1995 ("the 1995 Act"). Sashes Island is let on an agricultural tenancy.
From time immemorial public rights of navigation ("PRN") have existed at common law over the Thames, both in its tidal parts and its non-tidal parts. As was stated in the preamble to one of the earliest Acts of Parliament relating to the navigation of the Thames and Isis, the Thames and Isis Navigation Act 1751 ("the 1751 Act"), "the Rivers of Thames and Isis have, Time out of Mind, been navigable from the City of London to … beyond Lechlade …." By s. 1 of the Thames Preservation Act 1885 ("the 1885 Act") public rights of navigation ("PRN") both for pleasure and profit were declared over every part of the Thames through which Thames water flowed from Teddington Lock to Cricklade. A provision in substantially the same form is now to be found re-enacted in s. 79 (1) of the Thames Conservancy Act 1932 ("the 1932 Act") which continues in force.
However, the various navigation authorities with respect to the Thames ("the NA") have for many years treated Hedsor Water as a private water, having erected a weir at the south western end ("the Upper Weir") and another at the north eastern end ("the Lower Weir"), and erected, or permitted to be erected, signs that there was no thoroughfare through Hedsor Water and that it was private. Thus by a notice displayed by the Defendant at Cookham Lock a plan of the Thames in that area shows Hedsor Water as private and the text accompanying the plan states:
"Once the main route for river traffic, this stretch of river remains private with no public right of navigation, a unique situation on the Thames."
The Defendant reconsidered the position in late 2000 and the following year asserted that PRN continue to exist over Hedsor Water. Mrs. Rowland disputes this. She relies on certain provisions of the 1885 Act in support of a contention that Hedsor Water has become a permanently private water. She also contends that through the doctrine of legitimate expectation, either alone or taken with the European Convention on Human Rights ("the Convention") incorporated into English law by the Human Rights Act 1998 ("the 1998 Act"), she has rights to privacy in respect of Hedsor Water which the Defendant has failed to recognise.
There are therefore two main issues between the parties:
(1) Is there a statutory basis upon which it can be said that Hedsor Water has become a permanently private water?
(2) If not, has Mrs. Rowland a legitimate expectation of enjoying Hedsor Water as a private water at common law or taken with the Convention and, if so, has there been an abuse of power by the Defendant in resiling from its acceptance that Hedsor Water was private and failing to take proper account of that legitimate expectation?
These were the issues which came before the trial judge, Lightman J. On 19 December 2002 in a reserved judgment he decided both issues against Mrs. Rowland. He dismissed her claim and granted declarations pursuant to the Defendant's CPR Part 20 counterclaim that (1) Hedsor Water is and remains subject to PRN, and (2) the Defendant is entitled to perform its statutory functions, including under the 1932 Act and the 1995 Act, with respect to Hedsor Water. Permission to appeal to this court was refused by the judge but allowed by Chadwick L.J., considering the matter on paper.
The background
By the 1751 Act the Commissioners were given jurisdiction over the Thames and Isis from Middlesex to Wiltshire. That Act was followed by several others for improving and completing the navigation of the Thames and Isis from London to Cricklade. S. 7 of the Thames and Isis Navigation Act 1771 gave the Commissioners power to make such wharfs, locks and weirs for completing and carrying on navigation on the two rivers as they thought necessary and convenient for those purposes.
The Thames and Isis Navigation Act 1795 ("the 1795 Act") was passed to enlarge the Commissioners' powers so far as they related to improving and completing the navigation of the Thames and Isis. S. 22 (the sidenote to which was "Method of recovering Damages") provided that if any person considered himself aggrieved, damaged or injured by any works made by the Commissioners he might complain to them and they should hear such complaint and make such order, determination and judgment as seemed just to them and give such satisfaction to the complainant as they should think reasonable. The complainant had a right, if dissatisfied, of appeal to the Quarter Sessions.
The Thames and Isis Navigation Act 1812 ("the 1812 Act") was also passed for the improvement and completion of navigation and new powers were conferred on the Commissioners. They included by s. 8 the power to make such cuts as they deemed necessary for navigation, but without diverting or stopping up the present or usual channel of the river or altering the course of the stream or water passing through the same.
The Commissioners received many complaints about the inconvenience to commercial traffic passing through Hedsor Water which was shallow and fast flowing, the natural gradient of the river bed making navigation difficult for larger vessels such as barges. The Commissioners responded by making the Cut in 1830 (with a lock at Cookham at the north eastern end of the Cut), the PRN becoming exercisable through the Cut. No obstruction was placed at either end of Hedsor Water. In 1833 Lord Boston, the then owner of Hedsor Wharf, complained to the Commissioners about the deposit of a gravel bank by the Commissioners in Hedsor Water and the loss of income caused by the construction of the Cut. For many years there had been a wharf at Hedsor Wharf, and he had derived a sizeable income from commercial traffic passing through Hedsor Water, including in particular rent payable by his tenant whose horses were used for towing barges along Hedsor Water, and from the lease of and tolls payable with respect to his wharf. He claimed the removal of the gravel bank, and the bank was removed. He also claimed compensation for the loss of income and, when the Commissioners declined to allow the claim, on appeal he was awarded by the Buckinghamshire Quarter Sessions what were then substantial sums by way of compensation and costs. When the Commissioners did not pay, he obtained an order of mandamus from the Court of King's Bench (see R v Commissioners of the Thames and Isis (1837) 15 LJ Rep. 17).
In 1837 the Commissioners built the Upper Weir as an open or movable weir to improve the water level in and through the Cut. The weir would probably have been a paddle and rymer weir which consisted of timber paddles slotted between vertical posts (rymers), both of which were suspended from a horizontal beams. This retained the water level upstream at a higher level, but the removal of paddles would allow the passage of higher flows. In a movable weir, the beam could be swung to enable vessels to pass through when the paddles and rymers had been removed.
In 1838 Lord Boston's tenant gave up his tenancy because of the adverse effect of the Upper Weir on the flow of water through, and on the traffic to, Hedsor Water, and this occasioned a complaint by Lord Boston to the Commissioners and a further claim for compensation. The litigation was resolved by arbitration, culminating in an agreement between the parties on 10 November 1843 ("the 1843 Agreement"). Its terms included (1) the payment to Lord Boston of an agreed sum of compensation, (2) the...
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