Legitimate expectation — Public navigation rights — Appellant landowner believing public navigation rights for adjoining river extinguished — Whether extinguished by statute — Whether legitimate expectation that water private — Effect of European Convention on Human Rights — Appeal dismissed
The appellant inherited a house and grounds adjoining Hedsor Water, a three-quarter-mile bend in the river Thames, just below Cookham in Berkshire. Included in the title was the whole of the riverbed of Hedsor Water, one bank of it and part of the opposite bank. The respondent agency was the navigation authority responsible for the Thames. Although public navigation rights (PNR) had existed over the Thames at common law since time immemorial, the respondent and its predecessors had for many years treated Hedsor Water as private water. They had erected a weir at each end and had put up signs stating that there was no thoroughfare through Hedsor Water and that it was private.
In 2000, the respondent reconsidered the position and concluded that PNR continued to exist over Hedsor Water. The appellant brought proceedings seeking to prohibit the reopening of the water to the public. She contended that: (i) the PNR had been extinguished permanently by virtue of certain provisions of the Thames Preservation Act 1885, including sections 2 and 5; and (ii) she had a legitimate expectation, both under domestic law and under the European Convention on Human Rights, of enjoying Hedsor Water as a private body of water.
The judge dismissed the claim. On the first issue, he held that PNR over the water could be extinguished only by legislation, and that the relevant legislation did not give the navigation authorities the power to extinguish them. On the second, he found that the navigation authorities had had no power to make or to give effect to any representation that Hedsor Water was private, and that the appellant had failed to show the necessary unequivocal representation by the respondent that navigation rights had been permanently extinguished. Since the appellant’s expectation was not, therefore, legitimate, the judge held that it was not protected by the Convention. The appellant appealed.
Held: The appeal was dismissed.
1. The 1885 Act did not give any riparian owner any right against the public, not enjoyed before the passing of the Act, to exclude any person from navigating any water: see the first proviso to section 4. Prior to the 1885 Act, the appellant’s predecessor in title had possessed no right to exclude the public from exercising PNR over Hedsor Water, even though, as a practical matter, entry onto the water was not possible because of the weirs. PNR were not lost by mere disuse. Neither sections 2 or 5 of the Act assisted the appellant in the circumstances.
2. The evidence plainly indicated that, for at least 80 years, the regular and consistent practice of the navigation authorities had been to act on the footing that Hedsor Water was private. To any objective observer, the authorities had, by their conduct, represented that no PNR existed in Hedsor Water. Therefore, the necessary representation or practice to found a legitimate expectation was present, and the judge had been wrong on that point. However, the respondent’s conduct was not so unfair as to amount to an abuse of power. The judge had been right to find that it had carried out a fair balancing exercise, acknowledging that the appellant’s property had been purchased by her predecessor in title on the understanding that Hedsor Water was private, but setting off against that the fact that PNR over the water had never been extinguished. Moreover, a legitimate expectation could be founded only upon a lawful representation or practice, so that, in the absence of any statutory basis for the extinction of navigation rights over Hedsor Water, the appellant’s claim to a legitimate expectation of continuing to enjoy it as private water was bound to fail under domestic law.
3. The European Convention on Human Rights did not assist the appellant. An expectation could amount to a possession for the purposes of Article 1 of the First Protocol even though it arose from an act that was unlawful under domestic law: Pine Valley Developments Ltd v Ireland A/222 (1991) 14 EHRR 319 and Stretch v United Kingdom 44277/98 [2003] NPC 125 applied; Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 WLR 792 distinguished. The appellant’s expectation was a possession entitled to protection under Article 1. However, the respondent’s interference with that possession was lawful. It was inevitable that, once the respondent realised that it had made a mistake in allowing Hedsor Water to be treated as private water, it should, as the guardian of navigation in the Thames, resile from its former stance. The respondent had no power to fulfil the appellant’s expectation, which was inconsistent with the continued existence of PNR over that stretch of water. Courts should be slow to fix a public authority permanently with the consequences of a mistake, particularly when to do so would deprive the public of their rights: R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115 considered.
Lord Lester QC of Herne Hill and Robert Howe (instructed by CMS Cameron McKenna) appeared for the appellant; Peter Village QC and Lisa Busch (instructed by Clarks, of Reading) appeared for the respondent.
Sally Dobson, barrister
