Public rights of navigation - riparian owner seeking declaration that rights extinguished - no extinguishment save by statute

Rowland v Environment Agency CA: (Lord Justice Peter Gibson, Lord Justice May and Lord Justice Mance): 19 December 2003

The claimant was the registered proprietor of Hedsor Wharf Estate, which included one bank, parts of the other bank and the river bed of Hedsor Water, suing in her own right and as executrix of her late husband.

In 2000, the agency realised that the water was being treated as private.

The claimant sought a declaration that the public rights of navigation over Hedsor Water had been extinguished.

Mr Justice Lightman (see [2003] Gazette, 6 March, 28; 2 WLR 1233) declared that Hedsor Water was and remained subject to public navigation rights and the defendant was entitled to perform its statutory functions with regard to it.

Lord Lester of Herne Hill QC and Robert Howe (instructed by CMS Cameron McKenna) for the claimant; Peter Village QC and Lisa Busch (instructed by Clarks, Reading) for the Environment Agency.

Held, dismissing the appeal, that public rights of navigation of the Thames could be extinguished only by statute, by the exercise of statutory powers, or by destruction of the subject matter of the public navigation rights; that while the claimant could have a legitimate expectation that use of the water was private, the agency had acted fairly in resiling from it; and that while under article 1 of the European Convention on Human Rights such a legitimate expectation could amount to a possession entitled to protection, the agency's interference was justified and proportionate; but that the agency had to take into account the common assumption prior to 2000 that Hedsor Water was private, as indicated by its assurances not to promote public use of Hedsor Water and to minimise for the claimant the effect of removing the prohibition on the public using Hedsor Water, and the claimant's wish to continue to enjoy privacy.