“Once the main route for river traffic, this stretch of river remains private with no public right of navigation, a unique situation on the Thames.”
“Thames Navigation. No Thoroughfare. All persons forbidden to trespass upon these weirs.”
“notwithstanding the Public trade and traffic may have been diverted from this part of the river, it cannot be converted into private property, but remains open to the Public as heretofore.”
“in the event of any further litigation, the rights of the public to move in boats over any and every part of the river through which Thames water flows, as in an ancient and free highway, wherever they are not of necessity and, for the time, excluded by the requirements of the navigation, should be clearly declared: it being left open to any person claiming to exclude the public from a cut or channel made at any time on his property for drainage or other purposes, to prove his right to do so in a court of law.”
“Public right of navigation 1. It shall be lawful for all persons, whether for pleasure or profit, to go and be, pass and repass, in boats or vessels over or upon any and every part of the River Thames, through which Thames water flows, between the Town of Cricklade and Teddington Lock, including such backwaters creeks sidechannels bays and inlets connected therewith as form parts of the said river within the limits aforesaid. Private artificial cuts not to be deemed parts of the river 2. All private artificial cuts for purposes of drainage or irrigation, and all artificial inlets for moats boathouses ponds or other like private purposes, already made or hereafter to be made, and all channels which by virtue of any conveyance from or agreement with the Conservators, or the Commissioners acting under any of the Acts mentioned in the First Schedule to this Act or by any lawful title have been enjoyed as private channels for the period of twenty years before the passing of this Act shall be deemed not to be parts of the said river for the purposes of the last preceding section or any provisions consequent thereon. Conservators may exclude the public 3. Notwithstanding anything in the first section contained, it shall be lawful for the Conservators from time to time to exclude the public for a limited period from specified portions of the said river for purposes connected with the navigation or with any public work or uses, or for the preservation of public order. Right of navigation to include anchoring and mooring 4. The right of navigation herein-before described shall be deemed to include a right to anchor, moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation, subject to such restrictions as the Conservators shall from time to time by byelaws determine; and it shall be the duty of the Conservators to make special regulations for the prevention of annoyance to any occupier of a riparian residence by reason of the loitering or delay of any house-boat or steam launch, and for the prevention of the pollution of the river by the sewage of any house-boat or steam launch. Provided that nothing in this Act, or in any byelaw made thereunder, shall be construed to deprive any riparian owner of any legal rights in the soil or bed of the river which he may now possess, or of any legal remedies which he may now possess for prevention of anchoring, mooring, loitering, or delay of any boat or other vessel, or to give any riparian owner any right as against the public which he did not possess before the passing of this Act to exclude any person from entering upon or navigating any back-water, creek, channel, bay, inlet, or other water, whether deemed to be part of the River Thames as in this Act defined or not. Provided also, that the powers given by this clause shall be in addition to and not to be deemed to be in substitution for any powers already possessed by the Conservators. Riparian owner to remove obstructions unless maintained for 20 years 5. Any person obstructing the navigation herein-before described by means of any weir, bridge, piles, dam, chain, barrier, or other impediment, shall be liable to be called upon by the Conservators to remove the same, and his refusal to do so shall be deemed to be a continuing offence within the meaning of this Act, and the obstruction itself shall be deemed to be a nuisance to the navigation unless the same or substantially the same has been maintained for the period of twenty years before the commencement of this Act.”
“Nothing in this Act shall take away prejudice or affect or authorise anything to be done which may take away prejudice or affect any estate right title or privilege of [Lord] Boston or other owner for the time being of the Hedsor Estate in respect of or in relation to the channel known as Hedsor Water…. or in respect of or in relation to the Upper Weir or Lower Weir at Hedsor.”
“The Hedsor Water privilege was reserved to Lord Boston in [the 1894 Act]”
“Without fear of contradiction it is a unique spot - three quarters of a mile private Old River Thames – no public access by River.”
“I would like to stress, at this point, that our client whilst willing in some circumstances to allow the Thames Conservancy Engineers to work in the river, does not wish to jeopardize the control he maintains over Hedsor Water, which is set out in [s. 259 of the 1932 Act]. ”
“The Thames has been a public waterway since time immemorial and it is not immediately clear to us how your predecessors have managed to claim part of the ancient mainstream of the Thames to be private water.”
“The Agency is very mindful of Mrs. Rowland’s wish to enjoy ongoing privacy on the Hedsor Water and it is appreciated that the property will have been purchased on the understanding that the Hedsor Water is private. However it appears to the Environment Agency that the ancient navigable status of the Thames at Hedsor has never been extinguished by statute or by any other competent authority. Accordingly in the absence of any evidence being produced to the contrary, the Agency will be needing to remove all signage prohibiting, or appearing to prohibit, public navigation in the Thames at Hedsor. At the same time I have no doubt that the Environment Agency would wish to avoid causing the present owner, Mrs. Rowland, any greater discomfort than is inescapably necessary for the removal of the prohibitory signage and for the upholding of public rights. Certainly we have no intention of promoting public use of Hedsor Water and, as I say, we would wish to minimise for Mrs. Rowland, as far as we properly can, the effect of any abatement of prohibition. The Agency would be less concerned for any incoming occupier, in succession to Mrs. Rowland. When you have had an opportunity of looking into the evidence I would be glad to hear from you as to any basis in law on which you feel that Hedsor Water can be treated as no longer part of the ancient navigable river.”
“15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the RSC and should be its approach on a “review” under the CPR. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”
“With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of ‘review’ may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment – such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in r 52 11 (3) and (4) to the power of an appellate court to allow an appeal where the decision below was ‘wrong’ and to ‘draw any inference of fact which it considers justified on the evidence’ indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence.”
“Provided that nothing in this Act …. shall be construed …. to give any riparian owner any right as against the public which he did not possess before the passing of this Act to exclude any person from …. navigating …. any …. water, whether deemed to be part of the River Thames as in this Act defined or not”
“It shall be the duty of the [Defendant], to such extent as it considers desirable, generally to promote – (a) the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such waters; (b) the conservation of flora and fauna which are dependent on an aquatic environment; and (c) the use of such waters and land for recreational purposes ….”
“68. By a representation (a term which embraces a regular practice and a course of dealing) a public body does not give rise to an estoppel but may create an expectation in another (“the citizen”) from which it would be an abuse of power to resile: R v. East Sussex County Council ex parte Reprotech Pebsham Ltd[2002] 4 All ER 58 . The principle of good administration prima facie requires adherence by public authorities to their promises. Whether it does so require must be determined in the light of all the circumstances. The public body can only be bound by acts and statements of its employees and agents if and to the extent that they had actual or ostensible authority to bind the public body by their acts and statements: South Bucks District Council v. Flanagan[2002] 1 WLR 2601 at 2607 para 18 per Keene LJ. The relevant representation must be unequivocal and lack any relevant qualification: see R v. Inland Revenue ex parte MFK Underwriting[1990] 1 WLR 1545 . The citizen must place all his cards on the table, making full disclosure and his expectation must be objectively reasonable: R v. Secretary of State for Education ex parte Begbie[2000] 1 WLR 1118 (“Begbie”) per Peter Gibson LJ at p.1124 and Laws LJ at p.1130. Where the expectation relates to matters of substantive law as to which both parties are ignorant or in error, it is relevant both to reasonableness and fairness that the citizen had access to legal advice had he wished to take it: see Henry Boot Homes Ltd v. Bassetlaw DC 28.11.02 CA per Keene LJ at para 58 (“Boot”). The expectation may be substantive or procedural and the categories of legitimate expectation are not closed: Begbie. Once the claimant has established the legitimate expectation, he must show that it would be unfair of the public body to resile from giving effect to the legitimate expectation. Lord Woolf in R v. North and East Devon Health Authority ex parte Coughlan[2001] QB 213 at paragraphs 57-8 identified three kinds of unfairness, namely: (1) unfairness consisting in an irrational (in a Wednesbury sense) failure by a public body to take its representations into account (together with the legitimate expectation to which it may have given rise before resiling from the representation); (2) unfairness consisting in a procedurally unfair failure by a public body to afford the citizen affected by its decision to resile from its expectation an opportunity for consultation; and (3) unfairness consisting in a failure by a public body to give effect to a substantive benefit which is the subject matter of a legitimate expectation in circumstances where there is no overriding interest which would justify the public body in resiling from its representation that such a benefit would be forthcoming. Where the court is satisfied that the public body made the representation by mistake, the court should be slow to fix the public body permanently with the consequences of that mistake: see Begbie per Peter Gibson LJ at p.1127 and Sedley LJ at p.1133. In such a situation the court must be alive to the possibility of such unfairness to the individual as to amount to an abuse of power. The court must also consider whether and how far (going beyond the immediate parties) the wider interests of the public may be affected by giving effect to the expectation, for the wider interests may require that the public body resiles in order properly to protect those wider interests. In such a case the issue of fairness requires the public body to act fairly in accordance with the first of the three categories in Coughlan balancing in the public interest the irreconcilable interests and conflicting desiderata: see Begbie at pages 1130-1 and Laws LJ Bibi at paras 34-9 and Boot[2002] EWHC (Admin) 546 (Sullivan J) and the Court of Appeal. At the end of the day the court must decide whether having regard to all the relevant circumstances including the reliance by the citizen, the impact on the interests of the citizen and the public and considerations of proportionality for the public body to resile would in all the circumstances and applying the criteria referred to be so unfair as to constitute an abuse of power. 69. English domestic law imposes a constraint upon the applicability of the doctrine of legitimate expectation. For an expectation to be legitimate the party seeking to invoke it must show (amongst other things) “that it lay within the powers of the ... authority both to make the representation and to fulfil it”: per Schiemann LJ in R (Bibi) v. Newham LBC[2002] 1 WLR 237 . A legitimate expectation can only arise on the basis of a lawful promise or practice: per Gibson LJ in Begbie at 1125. If the expectation relates to the exercise of a lawful discretion e.g. to admit late claims, such an expectation may bind the public body to exercise its discretion in accordance with that expectation: see R v. IRC, ex parte Unilever[1996] STC 681 . But under English domestic law there can be no legitimate expectation that a public body will confer a substantive benefit or extinguish an obligation when it has no power to do so. This rule of law has been the subject of sustained academic criticism as conducive to injustice: see e.g. Professor Craig (1999) Administrative Law 4th ed at 642 and Administrative Law in Ireland, 3rd ed at p.863. But it remains the law.”
“Generations of readers including myself and other navigation officers have been given to understand that the privilege of maintaining an exclusion of the public from the Hedsor Water by means of the upper and lower weirs was reserved to Lord Boston by theThames Conservancy Act 1894 and was carried forward into theThames Conservancy Act 1932 . At first sight,section 259 of the 1932 Act appears to place Hedsor Water and its weirs outside the operation of the Thames Conservancy Act and the Claimant has disclosed in these proceedings a letter which I wrote some years ago expressing that view. It now appears that I was wrong.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“The principles to be derived from the decision of the Court and Commission, as it appears to me, are as follows: (1) a legitimate expectation relating to property may constitute a possession protected by Article 1 at any rate if it can be regarded as a component of property protected by Article 1. I can see no reason why in principle an expectation that public rights over private property will be extinguished (in this case PRN over the bed of Hedsor Water) should not likewise be capable of protection; (2) a legitimate expectation for this purpose may arise notwithstanding the fact that it was beyond the powers of the public body which fostered the expectation to realise the expectation. (It may be noted that the Irish member of the Commission dissented from the view of the majority on this issue); (3) the legitimate expectation cannot entitle a party to realisation by the public body of the expectation which it is beyond the powers of the public body to realise, but may entitle him to other relief which it is within the powers of the public body to afford, e.g. the benevolent exercise of a discretion available to alleviate the injustice or payment of compensation; (4) but the fact that the expectation was founded on an ultra vires act or that the public body had no power to realise the expectation raised and the reason why in law it had no such power (e.g. the potential adverse effect on third parties) may be a reason, and indeed a strong reason, going to the justification for the interference and its proportionality.”
“Article 8 would not be relevant. The disentitled owner might make a complaint under article 1 of the First Protocol but would fail. The divesting operation of the statutes of limitation would be justifiable as being in the public interest etc. ….”
“The most oft-repeated rationale for the rule, both here and in the United States, is that stated by Lord Greene MR in Minister of Agriculture and Fisheries v Hulkin (unreported but cited in Minister of Agriculture and Fisheries v Mathews[1950] 1 KB 148 ); if estoppel were to be allowed to run against the Government the donee of a statutory power could make an ultra vires representation and then be bound by it through the medium of estoppel. This would lead to the collapse of the ultra vires doctrine, with public officers being enabled to extend their powers at will. The jurisdictional principle is said to protect the public or that section of it to which the duty relates. Two other themes recur in the case law. There is the argument that estoppel cannot be applied to a public body so as to prevent it from exercising its statutory powers or duty. There is also the argument that to allow an ultra vires representation to bind the public body would be to prejudice third parties who might be affected, and who would have no opportunity of putting forward their views.”
“The balancing approach has the advantage of allowing the court the very flexibility which the jurisdictional principle treats as a foregone conclusion. It manifests a willingness to inquire whether the disadvantages to the public interest really do outweigh the injustice to the individual. In many of the areas where the representation relates to a purely financial matter, such as a claim by the Government for tax or a citizen seeking social security benefits, the hardship to the individual who has detrimentally relied will outweigh any public disadvantage. There are, of course, many other areas where the balance would be different. There are two disadvantages with the balancing approach. The practical objection is uncertainty, particularly in the initial period when the application of the doctrine is being tested in different areas. Any such uncertainty must be weighed against the hardship which the judicial balancing approach alleviates. The conceptual objection is more central. It might be felt that a balancing test would not fit into the constitutional structure which exists in this country. Our judiciary act against the background of parliamentary sovereignty. If Parliament has laid down certain limits to the powers of a body, it might be felt that the courts should not balance the public versus individual interest in the manner suggested above.”
“But what was their legitimate expectation?”
“As it seems to me the first and third categories in the Coughlan case …. are not hermetically sealed. The facts of the case, viewed always in their proper statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. …. In other cases the act or omission complained of may take place on a smaller stage, with far fewer players. Here …. lies the importance of the fact in the Coughlan case ….. that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of person. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies within what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. ….”
“41. The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive. Once the court has established such an abuse it may ask the decision taker to take the legitimate expectation properly into account in the decision making process. 42. Only part of the relevant material upon consideration of which any decision must be made is before the court. Because of the need to bear in mind more than the interests of the individual before the court, relevant facts are always changing. As Sir Thomas Bingham MR said in R v Cambridge Health Authority, Ex p B[1995] 1 WLR 898 , 906: “it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B then there would be a patient C who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration.” 43. While in some cases there can be only one lawful ultimate answer to the question whether the authority should honour its promise, at any rate in cases involving a legitimate expectation of a substantive benefit, this will not invariably be the case.”
“There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power: see [Coughlan]. But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law rights can also take into account the hierarchy of individual rights which exist under theHuman Rights Act 1998 , so that, for example, the individual’s right to a home is accorded a high degree of protection (see Coughlan’s case, at pp.254-255) while ordinary property rights are in general far more limited by considerations of public interest: see R (Alconbury Developments Ltd.) v. Secretary of State for the Environment, Transport and the Regions[2001] 2 WLR 1389 .”
“58. The issue whether the works carried out in breach of condition amounted to a start to “the development to which the permission relates” within the meaning of section 92(2) of the Act was and is essentially a legal one, to be determined in the last resort by the courts. It is not simply a matter for the local planning authority, and it means that any view expressed on it by the local planning authority is in a very different category from the normal case of a legitimate expectation that a public body will exercise its powers in a particular way. Moreover, insofar as the doctrine of legitimate expectation is to be seen as “rooted in fairness”, as it was put by Bingham L.J. in R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Limited[1990] WLR 1545 , 1570, it is relevant that the appellant itself, as a substantial house-building company, had access to legal advice, had it wished to take it. It was as capable as was the local planning authority of informing itself as to the legal consequences of commencing development in breach of condition and of the problems in establishing that this amounted to a start of development under the outline permission.”
“The applicants were engaged on a commercial venture which, by its very nature, involved an element of risk and they were aware not only of the zoning plan but also of the opposition of the local authority … to any departure from it.”
“Since however the local authority itself considered that it had the power to grant an option, it does not appear unreasonable that the applicant and his legal advisers entertained the same belief.”
“The Agency is very mindful of Mrs Rowland’s wish to enjoy ongoing privacy on the Hedsor Water and it is appreciated that the property will have been purchased on the understanding that the Hedsor Water is private. ….. …. I have no doubt that the Environment Agency would wish to avoid causing the present occupier, Mrs Rowland, any greater discomfort than is inescapably necessary for the removal of prohibited signage and for the upholding of public rights. Certainly we have no intention of promoting public use of the Hedsor Water and, as I say, we would wish to minimise for Mrs Rowland, as far as we properly can, the effect of any abatement of prohibition. The Agency would be less concerned for any incoming occupier, in succession to Mrs Rowland.”