COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE MANCE
| JOSIE ROWLAND
|- and -
|THE ENVIRONMENT AGENCY
Mr Peter Village QC and Ms Lisa Busch (instructed by Clarks, Great Western House, Station Road, Reading RG1 1JX) for the Defendant
Hearing dates : 7 - 10 October 2003
Crown Copyright ©
Peter Gibson L.J.:
"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."
(1) Is there a statutory basis upon which it can be said that Hedsor Water has become a permanently private water?
(2) If not, has Mrs. Rowland a legitimate expectation of enjoying Hedsor Water as a private water at common law or taken with the Convention and, if so, has there been an abuse of power by the Defendant in resiling from its acceptance that Hedsor Water was private and failing to take proper account of that legitimate expectation?
"Thames Navigation. No Thoroughfare. All persons forbidden to trespass upon these weirs."
At the same time the Commissioners wrote a letter to Lord Boston ("the Side-letter"), saying:
"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."
There is a dispute between Mrs. Rowland and the Defendant as to whether the Commissioners locked the gates of the weirs, preventing navigation through the weirs, or gates providing access from the banks to the weirs, thereby preventing access to the weirs, but it is agreed that they gave a key to Lord Boston in respect of the Upper Weir, themselves retaining keys in respect of both weirs. Although there is no evidence that there were access gates, the judge was to hold that the Commissioners locked access gates, as contended for by the Defendant, because of the terms, referred to above, of what they wrote to Lord Boston to the effect that Hedsor Water remained open to the public.
"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."
Lord Boston in the History said that while express title to Hedsor Water was not given him, the 1894 Act "undoubtedly strengthened" his position, his claim being recognised, and protection being given him for the first time in an Act of Parliament. S. 72 of the 1894 Act re-enacted ss. 1 5 of the 1885 Act save for the omission of the words in s. 5 deeming the obstruction to be a nuisance to navigation.
(1) the NA's lockkeepers sought permission from the owners for the time being of Hedsor Wharf before launching boats on Hedsor Water on a number of occasions;
(2) if boats came in Hedsor Water, those owners would call the NA's lockkeepers who would warn the boats that Hedsor Water was private;
(3) the NA's officials permitted access to Hedsor Water to be obstructed by the remains of the Lower Weir (including the gangway on it);
(4) the NA's officials permitted signs to be erected and to remain at the Lower Weir stating that Hedsor Water was private and in 1990 they permitted the erection of a sign to the like effect at the Upper Weir;
(5) the NA's officials erected public information signs off the Cut, stating that Hedsor Water was private.
"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]. "
Neither letter appears to have led the Conservators to challenge or question what was being asserted in respect of Hedsor Water.
"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."
He said that they had recently had cause to examine the 1843 Agreement and that he had been advised by the Defendant's solicitor that neither that agreement nor s. 259 of the 1932 Act was to be understood as extinguishing or disclaiming the PRN in Hedsor Water. He asked Mrs. Rowland to clarify what was the legal basis for her signs seeking to exclude the navigating public from Hedsor 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."
(1) PRN over Hedsor Water could only be extinguished by legislation (para. 53 of the judgment)
(2) None of the relevant legislation confers express power on the NA to extinguish the PRN (para. 53).
(3) No power to extinguish the PRN was impliedly conferred on the NA by s. 22 of the 1795 Act or s. 8 of the 1812 Act (paras. 54 and 55).
(4) Neither the 1885 Act nor either of the 1894 Act and the 1932 Act expressly or impliedly conferred power on the NA to extinguish the PRN with respect to a stretch of the Thames, nor did anything in any of those Acts have the effect of turning Hedsor Water into a private water (paras. 59 66).
(5) In particular
(i) ss. 2 and 5 of the 1885 Act did not apply to Hedsor Water because, as the first proviso to s. 4 makes clear, those provisions did not apply to existing PRN (para. 60);
(ii) even if ss. 2 and 5 were applicable to Hedsor Water, s. 2 could not assist Mrs. Rowland as none of her predecessors in title had enjoyed Hedsor Water as a private channel for the relevant 20-year period (paras. 61 3);
(iii) there had been no relevant legally binding agreement between Lord Boston and the NA whereby he might enjoy Hedsor Water as a private channel (para. 64);
(iv) Lord Boston did not have "lawful title" to enjoy Hedsor Water as a private channel for the 20-year period (para. 65);
(v) s. 5 did not avail Mrs. Rowland either as its provisions did not confer a licence to replace any obstruction to PRN removed by the NA, but merely afforded a defence to the original criminal offence created by the same section, and could not preclude recourse to other remedies for the removal of obstructions or confer immunity from civil suit or exercise of the right of abatement where any such obstruction to PRN is created (para. 66).
(1) The NA had no power either to make or give effect to a representation that Hedsor Water was private, and a legitimate expectation cannot be derived from an unlawful act or statement (para. 69).
(2) Mrs. Rowland failed to make out the necessary representation by the Defendant that PRN were permanently extinguished, the words and actions of the officials of the NA being equivocal and the officials lacking the necessary authority (para. 72).
(3) It was not objectively reasonable for Mr. and Mrs. Rowland to rely on the representations made to them without having made enquiries of the Defendant and without having instructed their solicitors to make investigation of the question (para. 72).
(4) The Defendant acted fairly in resiling from any expectation that was induced (para. 73).
(5) As Mrs. Rowland did not have a legitimate expectation that Hedsor Water was private, her expectation was not a possession protected by Article 1 of the First Protocol to the Convention, nor did it otherwise give rise to a claim for relief under the Convention (para. 81).
(6) If the expectation did constitute a possession, no violation of Mrs. Rowland's rights occurred because the interference with her possession was plainly lawful, pursued the legitimate aim of safeguarding the rights of the public over Hedsor Water and were proportionate to the aim (para. 82).
(1) Hedsor Water is for the purposes of s. 2 of the 1885 Act a channel which by virtue of an agreement with the Conservators acting under the 1795 and 1812 Acts (mentioned in the First Schedule to the 1885 Act) had been enjoyed as a private channel for the period of 20 years before the passing of the 1885 Act and as such was deemed not to be part of the Thames for the purposes of s. 1 of the 1885 Act.
(2) Hedsor Water is for the purposes of s. 2 a channel which by a lawful title had been enjoyed as a private channel for that period with the like deemed consequence.
(3) If any obstruction, maintained for that period, to PRN is removed by the Defendant, s. 5 confers on Mrs. Rowland a licence to replace it and any such replacement obstruction could not be removed by the Defendant.
(4) Mrs. Rowland has a legitimate expectation at common law that she and her successors in title to Hedsor Water would continue to be entitled to enjoy Hedsor Wharf as a private water and it is an abuse of power for the Defendant to change its position and deny that entitlement.
(5) Mrs. Rowland by her legitimate expectation has a possession entitled to protection under Article 8 of the Convention ("Art. 8") and Article 1 of the First Protocol to the Convention ("Art. 1"), with the like consequences on a change of position by the Defendant.
(1) A declaration that she has a legitimate expectation, constituting a fundamental right protected by Art. 1, that she (and any successor to her as owner of Hedsor Wharf) was and is entitled to continue to enjoy Hedsor Water as a private channel.
(2) A declaration that it was unfair and an abuse of power for the Defendant to change its position as regards Hedsor Water in November 2000, and thereafter seek and obtain a declaration that it had unfettered rights to exercise its statutory functions in relation to Hedsor Water, including its functions under the 1932 Act and the 1995 Act, without regard to her Convention rights, and without securing and maintaining a fair balance between:
(a) her Convention rights; and
(b) the general interest of the community (including the PRN at Hedsor Water).
"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."
A similar approach was indicated by May L.J. in El Du Pont De Nemours & Co. v S T Dupont  EWCA 1368 at para. 97.
S. 2: Agreement
S. 2: lawful title
"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 ."
Lord Cairns L.C. in Cory v Bristow (1877) 2 App. Cas. 262 at p. 273 described the Conservators as "the guardians . of the navigation of the Thames".
"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  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  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  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  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  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  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  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  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."
(1) A legitimate expectation may arise from "the existence of a regular practice which the claimant can reasonably expect to continue": see Council for Civil Service Unions v Minister for the Civil Service  AC 374 at p. 401 per Lord Fraser, quoted by me in Begbie  1 WLR 1118 at p. 1125.
(2) It is not always a condition for a legitimate expectation to arise that there should be a clear, unambiguous and unqualified representation by the public authority (R v IRC, ex p. Unilever plc  STC 681 at pp. 693-5 per Simon Brown L.J.): the test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power.
(3) Similarly, without in any way wishing to belittle the "cards on the table" requirement laid down in the MFK case (a tax case), the answer to the question whether there has been such a failure of disclosure by a party as to disentitle him from having a legitimate expectation must depend on the particular circumstances of the case.
"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 the Thames Conservancy Act 1894 and was carried forward into the Thames 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."
Mr. Christie in the penultimate sentence refers to the letter of 13 December 1990 to which I referred in para. 34 above.
"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. ."
Mr. Village said that that indicated that the same reasoning applied with respect to Art. 1 as well as to Art. 8, the aim of Art. 1 being to protect individuals from arbitrary interference by the state with their property to which they were entitled under domestic law and that article should not be regarded as conferring new property rights.
Lord Justice May:
"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  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 existence of a legitimate expectation is not, however, a sufficient condition for binding the public body, precisely because the representation may have been ultra vires. The existence of a legitimate expectation does, however, serve as a signal that issues of legal certainty are involved in a case. The existence of such an expectation should, therefore, operate as a trigger to alert a court that a balance between the principles of legality and legal certainty may be required."
I would add that the principles proportionality, and indeed basic fairness, should come into play.
"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."
Professor Craig examines these problems. He concludes by considering the argument that it would be much simpler to give compensation than to allow an ultra vires representation to bind. Any system of compensation would derive its funds from a certain section of society, directly or indirectly. It might, for example, be through general taxation or from the local rates. It is a trite, though important, proposition that funds for compensation are scarce. "If, by balancing the public and private interest, it can be shown that the detriment to the former is outweighed by that of the latter, it is not clear why we should give compensation rather than allow the representation to bind."
Lord Justice Mance:
(A) Mrs Rowland "has a legitimate expectation, constituting a fundamental right protected by Article 1 of the First Protocol to the European Convention on Human Rights and by Article 8 of the said Convention that she (and any successor to the Hedsor Wharf Estate) was and is entitled to continue to enjoy Hedsor Water as [a] private channel;
(B) " . it was unfair and an abuse of power for the Respondent to change its position as regards Hedsor Water in November 2000, and thereafter seek and obtain an injunction [sic] that it had unfettered rights to exercise its statutory functions in relation to Hedsor Water .without regard to [Mrs Rowland's] aforesaid Convention rights, and without securing and maintaining a fair balance between
(1) [Mrs Rowland's] said Convention rights; and
(2) The general interest of the community including the public right of navigation ["the PRN"] along at Hedsor Wharf".
Lord Lester conceded, as Peter Gibson LJ records, that, if Mrs Rowland could not succeed under Article 1 of the First Protocol, then the claim under Article 8 of the Convention added nothing. The concession may reflect the emphasis in Mrs Rowland's case upon the original purchase of Hedsor Wharf for herself and her husband, and the financial loss that she fears if Hedsor Water ceases to be treated as private.
"that the local authority is under a duty to consider the applicants' applications for suitable housing on the basis that they have a legitimate expectation that they will be provided by the authority with suitable accommodation on a secure tenancy".
But the declarations suggested by Lord Lester have implications calling for particular consideration in the more complex circumstances of the present case. They refer to successors in title; and they seek to categorise as both unfair and "an abuse of process" not just the Agency's change of position in November 2000, but also its successful claim to an injunction (no doubt a mistake for declaration) in the form granted by Lightman J, on the basis that the Agency was thereby failing to secure and maintain a fair balance between Mrs Rowland's "rights" and the community's general interest, including the PRN. The reference to successors in title here too probably reflects Mrs Rowland's case, to which I will return, that she and her husband were entitled to and did buy Hedsor Wharf on the basis of a legitimate expectation created by the Agency. I did not understand Lord Lester to address particular submissions to suggest that it could be regarded as "unfair and abuse of process" for the Agency to seek and obtain a declaration from Lightman J that the Agency had "unfettered rights to exercise its statutory functions in relation to Hedsor Water". If and so far as Lightman J was wrong, the remedy is by appeal, with an appropriate costs order in the event of success; it has not been suggested that Mrs Rowland will have suffered any loss in the meanwhile, since the Agency is currently staying its hand.
Legitimate expectation the principles
"would be so unfair as to amount to an abuse or power".
He went on (at pp.1130f-1131c):
"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  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 the Human 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  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  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 concept of 'possessions' in the first part of Article 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as 'property rights', and thus as 'possessions' for the purposes of this provision ..".
" had at least a legitimate expectation of being able to carry out their proposed development and this has to be regarded, for the purposes of Article 1 of Protocal No. 1, A component part of the property in question".
However, the "control" over the use of such property which was introduced by the Supreme Court's decision was regarded "as a proper way if not the only way of achieving [the] aim" of preventing development in green belt land, and also as proportionate - even though no compensation was afforded. The reasoning for holding that there was no breach of Article 1 of the First Protocol was that:
"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."
Nevertheless, since other developers in a similar position had been granted retrospective legislative relief, there was a violation of article 14, for which substantial compensation was later awarded against the Irish state:  16 EHRR 379.
"the applicant must be regarded as having at least a legitimate expectation of exercising the option to renew and this may be regarded, for the purposes of Article 1 of Protocol No. 1, as attached to the property rights granted to him by [the local authority] under the lease."
The authority's inability to afford the renewal constituted either an interference with or a deprivation of the applicant's possessions within Article 1 of the First Protocol (para. 36). It involved a failure to "strike a 'fair balance' between the general interests of the community and the requirements of the individual's fundamental rights" and was not proportionate (para. 38). The transaction was essentially of a private law nature, and not against any public interest or prejudicial to "any third party interests or the performance of any other statutory function" (para.39). The United Kingdom's submissions that the applicant should have been aware of the consequences of any incapacity, and had the opportunity to take legal advice or could sue his legal advisers for negligence in giving any such advice were all rejected (para. 40); the court said that:
"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."
Accordingly, there was a violation of Article 1 of the First Protocol.
Application of the principles
" . it was not objectively reasonable on the occasion of the purchase of Hedsor Wharf, with solicitors instructed to act on the purchase to investigate title, for Mr and Mrs Rowland to rely on the representations which they did without making direct inquiries on the issue of the Defendant and without instructing their solicitors to investigate the question as part of the investigation of title".
"all such estate interest and rights as the Vendor has power lawfully to convey to the Purchaser in and over the bed of the river Thames between the said points marked A and B on the . plan .".
Mrs Rowland's account regarding reliance is that she
"felt confident in taking the advice of Mr and Mrs Badcock and acting on it in everything concerning Hedsor Water" (first statement para. 4).
"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."
The letter went on to ask for a reply within two months, and to say that the Agency would 'of course' take no further action for the time being. No doubt, when deciding what if any further action to take, the Agency would bear in mind the absence, so far as appears, of any grave prejudice to date arising from the lack of public access to Hedsor Water. The judge spoke of grave prejudice to public interests if any effect were given to any expectation, but he must I think have had in mind permanent barring of all public access, despite the PRN. In reality, practical obstacles anyway appear to stand in the way of extensive navigation in the foreseeable future, namely the upper weir and the remnants of the lower weir which, even if it was otherwise appropriate to think of removing them, could presumably only be removed with difficulty and considerable expense.