Rowland v The Environment Agency, Court of Appeal - Chancery Division, December 19, 2002, [2003] 2 WLR 1233,[2002] EWHC 2785 (Ch),[2003] 1 LLR 427,[2003] 1 All ER 625,[2003] 1 Lloyd's Rep 427,[2003] Ch 581

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Rowland v The Environment Agency, Court of Appeal - Chancery Division, December 19, 2002, [2003] 2 WLR 1233,[2002] EWHC 2785 (Ch),[2003] 1 LLR 427,[2003] 1 All ER 625,[2003] 1 Lloyd's Rep 427,[2003] Ch 581

Case No: HC 0102371

Neutral Citation Number: [2002] EWHC 2785 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19th December 2002

Before :

THE HONOURABLE MR JUSTICE LIGHTMAN

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Between :

| |Josie Rowland |Claimant |

| |- and - | |

| |The Environment Agency |Defendant |

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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

Mr 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

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JUDGMENT

Mr 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...

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