Rowland v The Environment Agency, Court of Appeal - Chancery Division, December 19, 2002,  2 WLR 1233, EWHC 2785 (Ch), 1 LLR 427, 1 All ER 625, 1 Lloyd's Rep 427, Ch 581
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Case No: HC 0102371 Neutral Citation Number:  EWHC 2785 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISION Royal Courts of JusticeStrand, London, WC2A 2LLDate: 19th December 2002Before : THE HONOURABLE MR JUSTICE LIGHTMAN- - - - - - - - - - - - - - - - - - - - -Between : | |Josie Rowland |Claimant || |- and - | || |The Environment Agency |Defendant | - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Lord Lester QC and Mr Robert Howe (instructed by CMS Cameron McKenna. Mitre House, 160 Aldersgate Street, London EC1A 4DD) for the ClaimantMr Peter Village QC and Ms Lisa Busch (instructed by Clarks, Great Western House, Station Road, Reading RG1 1JX) for the DefendantMr David Elvin QC and Mr Timothy Morshead appeared as Advocates to the Court (instructed by the Treasury Solicitor, Queen Anne’s Chambers, 28 Broadway,London SW1H 9JS)Hearing dates: 6th - 7th March, 22nd April, 13th May,15th - 27th November 2002- - - - - - - - - - - - - - - - - - - - -JUDGMENTMr Justice Lightman: INTRODUCTION This action concerns the public rights of navigation (“PRN”) over a non-tidal part of the River Thames (“the Thames”) known as Hedsor Water. The Claimant, who sues in her own right and as executrix of her late husband Mr Roland Rowland (“Mr Rowland”), is the registered proprietor of the Hedsor Wharf Estate (“Hedsor Estate”), a property whose grounds include one bank of Hedsor Water, parts of the other bank and the whole of the river bed of Hedsor Water. The issue before the court is whether PRN which at one time undoubtedly existed over Hedsor Water continue to subsist or have been extinguished or ceased to be exercisable. Much of the argument in this case focuses on two weirs erected at the upper and lower ends of Hedsor Water (to which I shall refer in their various forms respectively as “the Upper Weir” and “the Lower Weir” and together as “the Weirs”) and the obstructions which they have occasioned to the exercise of PRN. The parts of the other bank of Hedsor Water which does not form part of the Hedsor Estate and which I shall refer to as “Sashes Island” vested in the Defendant’s predecessor in title in 1926. The only significance of Sashes Island in this action is that it has at all times afforded a means of access to Hedsor Water for the exercise of any subsisting PRN over land not vested in the owner of Hedsor Estate. Throughout the 19th century Hedsor Estate was owned by successive Lords Boston. (I shall use the term “Lord Boston” to refer to the current Lord Boston at the date of the event or transaction in which a Lord Boston participated). In December 1924 Lord Boston sold Hedsor Estate to a Mrs Moore who in turn in September 1948 sold it to a Mr Scott. In December 1949 Mr Scott sold Hedsor Estate to a Mr Badcock who on the 18th April 1968 sold it to the Sugar Corporation of Malawi Limited (“SCML”) which purchased it for the occupation of Mr Rowland as his country home. On the 19th April 1974 SCML sold and transferred Hedsor Estate to Mr Rowland. On his death in 1998 probate of Mr Rowland’s will was granted to the Claimant who was as his executrix and sole beneficiary entitled to his estate. Title to Hedsor Estate was registered in her name on the 22nd November 2001. Responsibility for the improvement and preservation of the navigation of the Thames was vested in the Thames Commissioners (“the Commissioners”) by Act 24 Geo II C.8 (1751) (“the 1751 Act”) and continued in a series of later Acts. In 1866 the functions performed by the Commissioners passed to the Conservators for the River Thames (“the Conservators”). Lord Cairns LC spoke of the role of the Conservators in these terms in Cory v. Bristol (1877) IAC 262 at 273: “They are made [by statute] the guardians, as it were, of the navigation of the Thames and the protectors of the bed and soil of the Thames for the purposes of the navigation. They have certain powers – very large powers – given to them for the protection of navigation”. The latest Act conferring powers and imposing duties on the Conservators is the Thames Conservancy Act 1932 (“the 1932 Act”). By the Environment Act 1995 (“the 1995 Act”), the Environment Agency (“the Defendant”) was constituted as the public body responsible for the preservation of the navigation of the Thames vested with the powers previously vested in and subjected to the duties previously imposed upon the Conservators, and thereafter assumed the role of guardian of navigation on the Thames. Section 6 of the 1995 Act provided that the Defendant should have the additional duty, to such extent as it considers desirable, generally to promote the use of the waters of the River Thames for recreational purposes. I shall refer to the Commissioners, the Conservators and the Defendant together and the navigation authorities for the time being as “the Navigation Authorities” (abbreviated to the “NA”). PRN have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The ambit of the PRN since 1885 has been statutorily defined first by the Thames Preservation Act 1885 (“the 1885 Act”) and currently by section 79(1) of the 1932 Act as including the right to use both for navigation and for recreation and resort. Section 259 of the 1932 Act saved any rights or entitlements as Lord Boston, his successors and assigns may have with respect to Hedsor Water. There are two issues in this case. The first issue is primarily a question of statutory construction and in particular the construction of sections 2 and 5 of the 1885 Act. The question is whether under section 2 the effective exclusion of the public from exercising PRN over Hedsor Water over the 20 year period prior to enactment of the 1885 Act (“the 20 Year Period”), gave rise to an entitlement on the part of Lord Boston to exclude the public from Hedsor Water and whether section 5 conferred on Lord Boston as riparian owner the right to obstruct the exercise of PRN over Hedsor Water. The second issue is an issue of substantive law, namely whether the Claimant has since acquired such a right or entitlement under the doctrine of legitimate expectation, such legitimate expectation arising from the acknowledgement by the NA since 1894, and most particularly in 1968 (when SCML acquired the Hedsor Estate) and in April 1974 (when Mr Rowland acquired Hedsor Estate), that there were no PRN and the reliance by Mr Rowland on that acknowledgement when he purchased Hedsor Estate. In this action the Claimant claims declarations that the answers to these questions are in the affirmative. The Defendant opposes these claims and seeks declarations that Hedsor Water remains subject to PRN and that it is entitled to perform its statutory functions under the 1932 and 1995 Acts with respect to Hedsor Water. This action accordingly raises two important legal issues. The first is whether PRN over the Thames subsisting in 1885 can be extinguished by proof of exclusion of the public for the 20 Year Period or may be subject to rights of riparian owners to obstruct their exercise. The second is whether the doctrine of legitimate expectation, reinforced (if necessary) by the provisions of the Human Rights Act 1998 (“the HRA”), which incorporates into UK law the European Convention on Human Rights (“the Convention”) can entitle a riparian owner to the extinguishment of PRN or other relief in respect of the exercise of such rights. In the course of argument a multitude of issues of fact and law have been raised. I am most grateful to all Counsel, and most particularly Mr Elvin, the Advocate to the Court, for their valued help. THE HISTORY OF HEDSOR ESTATE The history of Hedsor Estate up until 1885 (and in particular during the 20 Year Period) is relevant to the Claimant’s case on the first of the two issues and in particular the application of sections 2 and 5 of the 1885 Act contended for by the Claimant. For the reasons which will appear when I turn to the construction of those sections, I do not think that the history and the resolution of the difficult questions of historical fact raised by the Claimant are of the significance or relevance suggested by the Claimant. Nonetheless I shall seek to cover this period in the history but without feeling the need to undertake the depth of analysis or giving definitive answers to questions clouded in mystery which can best be left to historians. The history of the period after 1885 and most particularly the period leading up to the acquisition of Hedsor Estate by SCML and Mr Rowland are relevant to the second issue. In particular what are relevant are the course of conduct and representations of responsible officials “on the ground” of the NA regarding the continuing subsistence of PRN over Hedsor Water. Accounts of the relevant events in the history of Hedsor Water can be elicited (amongst other sources) from the Minutes of the NA (“the Minutes”), contemporary correspondence, the 1884, 1885 and 1894 Reports of Select Committees of the House of Commons and a private four volume History of Hedsor Water (“the History”) written by Lord Boston in 1899 and handed to Mr and Mrs Rowland by Mr Badcock prior to his sale to SCML. The Defendant first learnt of the existence of the History shortly before the commencement of this action. There is no reason to believe that the NA ever knew of its existence previously. Lord Boston was practically at war with the NA throughout the period covered by the History, and reading from the History it is reasonable to infer that the contents reflect his partisan viewpoint. Certainly on contentious issues his account must be viewed with caution. The Claimant gave evidence as to the importance to Mr Rowland of the private character of Hedsor Water when SCML and subsequently when Mr Rowland purchased Hedsor Estate. She was not cross-examined...
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