Purchaser of riverside estate believing ancient public navigation rights extinguished — Whether belief well-founded on legislation relating to river Thames — Whether conduct of navigation authority creating a legitimate expectation that rights would not be exercised in future — Effect of European Convention on Human Rights — Claim by riparian owner dismissed
The dispute concerned the existence of public navigation rights (PNR) over a three-quarter-mile loop of the Thames near Maidenhead (the water), the bed of which was vested in the owner of the Hedsor Estate. The claimant succeeded to the estate upon the death of her husband, TR*, who had purchased the estate in 1968, having satisfied himself, without raising inquiries through his solicitor, that no PNR were exercisable over the water. Among the matters that led TR to being so satisfied were: (i) no assertion of such rights had been made by the defendant agency or its predecessors (the navigation authorities)† since its communication with a parliamentary select committee in 1894; (ii) since that time, it had been the practice of lock keepers and others employed by the navigation authorities to seek the permission of the claimant and her predecessors before launching boats on the water, to warn boat users that the water was private, to permit access to the water to be obstructed by the remains of a weir for which they were responsible, and to permit the erection of signs on their weirs stating that the water was private. In February 2002, the defendant, having reviewed the history of the water and the statutes relating thereto, informed the claimant that it had revised its views on PNR and would cease to treat the water as private.
Seeking to prohibit the re-opening of the water to the public, the claimant contended that the navigation authorities had, by certain measures taken during the 19th century, extinguished the PNR that had otherwise subsisted at common law since time immemorial. In the alternative, the claimant submitted that the conduct of the authorities, since 1894, had been such as to generate, both under domestic law and under Article 1 of the first Protocol to the European Convention on Human Rights (ECHR), a legitimate expectation on the part of TR that such rights had ceased to apply once TR purchased the estate in 1968.
Held: The claim was dismissed.
There was nothing in the legislation affecting the management of the river Thames‡ that empowered the navigation authorities to extinguish PNR, nor had the authorities taken any step capable of having that effect.
While incapable of giving rise to an estoppel (see R (on the application of Reprotech Pebsham Ltd v East Sussex County Council [2002] UKHL 8; [2002] 2 PLR 60), a regular course of dealing by a public body could create an expectation from which it would be an abuse of power to resile. In order to succeed under domestic law, the claimant must, inter alia, show that it lay within the powers of the authority both to make the representation and to fulfill it (the ultra vires objection): see per Schiemann LJ in R (Bibi) v Newham London Borough Council [2002]1] EWCA Civ 607; [2002] 1 WLR 237 and per Gibson LJ in R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115. For the reasons given, the claimant had failed to do this. However, the ultra vires objection could not, without more, defeat a claim based upon the Convention: Pine Valley Developments Ltd v Ireland (1991) 14 EHHR 319.
There were, nevertheless, other reasons why the claim should fail. The existence of the regular practice and representations at best gave rise to an expectation that the constraint on exercise of PRN would not be brought to an end without reasonable notice. It was scarcely conceivable that an authority to make the alleged binding assurances could have been given to officials on the ground. Nor was it objectively reasonable for the purchaser, in 1964, to rely upon the alleged representations without making direct inquiries of the navigating authority and without instructing his solicitor to carry out appropriate investigations. The defendant agency had not, in any event, acted unfairly in deciding to resile from any expectation produced, as the representations were, in so far as they looked to the future, the result of a common mistake that, if given effect to, would gravely prejudice the public interest. At the end of the day, the court had to decide whether, having regard to all the relevant circumstances, including the reliance by the citizen, the impact of the decision to resile would be so unfair as to constitute an abuse of power: South Bucks District Council v Flanagan [2002] 3 PLR 47, R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 considered. Those reasons not only defeated the claim under domestic law but also precluded any argument that the alleged expectation amounted to a “possession” capable of being protected under Article 1 of the ECHR: see Pine Valley above.
Lord Lester of Herne Hill QC and Robert Howe (instructed by CMS Cameron Mckenna) appeared for the claimant; Peter Village QC and Lisa Busch (instructed by Clarks, of Reading) appeared for the defendant; David Elvin QC and Timothy Morshead appeared as advocates to the court.
* Editor’s Note: The late “Tiny” Rowland, who initially acquired the estate through one of his companies.
† Editor’s Note: Namely the Conservators for the River Thames, who, in 1866, assumed the functions (dating from 1751) of the Thames Commissioners.
‡ Editor’s Note: In particular, sections 2 and 5 of the Thames Preservation Act 1885.
Alan Cooklin, barrister
