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Josie Rowland (Appellant) – and – The Environment Agency (Respondent)

País/Territorio
Reino Unido
Tipo de la corte
Otros
Fecha
Dic 19, 2003
Fuente
UNEP, InforMEA
Nombre del tribunal
Court of Appeal
Sede de la corte
London
Juez
Gibson
May
Mance
Número de referencia
2003 EWCA Civ 1885
Idioma
Inglés
Materia
Agua
Palabra clave
Navegación Procedimientos judiciales/procedimientos administrativos Derechos de propiedad Aguas públicas
Resumen
This appeal concerned a stretch of the River Thames known as Hedsor Water. On the northern bank were a house and grounds known as Hedsor Wharf. It had been the country home of the Claimant since 1968. Included in Hedsor Wharf were one bank of Hedsor Water, parts of the other bank and the whole of the river bed of Hedsor Water. The Defendant is a public authority created under the Environment Act 1995. From time immemorial public rights of navigation (“PRN”) had existed at common law over the Thames. By s. 1 of the Thames Preservation Act 1885 PRN both for pleasure and profit were declared over every part of the Thames. However, the defendant with respect to the Thames had for many years treated Hedsor Water as private water, having erected a weir at the south western and the north eastern end as well as signs that there was no thoroughfare through Hedsor Water and that it was private. The Defendant reconsidered the position in late 2000 and the following year asserted that PRN continue to exist over Hedsor Water. The appellant disputed this. She contended that Hedsor Water had become permanently private water. Through the doctrine of legitimate expectation, taken with the European Convention on Human Rights, she had rights to privacy which the Defendant had failed to recognize. In the view of the court prior to the 1885 Act there was no right to exclude any member of the public from exercising PRN over Hedsor Water. PRN were not lost by mere disuse. Furthermore, a lawful title required an entitlement to enjoyment of the channel as private water. No such lawful title was established. However, since 1920 the defendant believed that Hedsor Water was private. To any objective observer the defendant was by its conduct representing that there were no PRN in Hedsor Water. There was the necessary practice to found a legitimate expectation. The appellant relied on Art. 8 of the European Convention on Human Rights, namely the right to respect for private and family life, and on Art. 1, providing for the protection of property. The Court decided that the expectation was a possession entitled to protection under Art. 1 unless the interference by the Defendant with that possession was justified and proportionate. However, it was inevitable that once the Defendant was aware that it had made a mistake in allowing Hedsor Water to be treated as private water, it, as the guardian of navigation in the Thames, had to resile from its previous stance. Courts should be slow to fix a public authority permanently with the consequences of a mistake, particularly when it would deprive the public of their rights. The Defendant had no power to fulfill the expectation of the appellant, and it was bound to conclude that it had to remove the misleading signs that Hedsor Water was private, as they were inconsistent with the continued existence of PRN over that stretch of the Thames. The rights of the public, expressly recognised by s. 1 of the 1885 Act, required nothing less. The appeal was therefore dismissed.
Texto completo
rowland.htm