England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2002

Mr Justice Lightman:

INTRODUCTION

1. This action concerns the public rights of navigation ("PRN") over a non-tidal part of the River Thames ("the Thames") known as Hedsor Water. The Claimant, who sues in her own right and as executrix of her late husband Mr Roland Rowland ("Mr Rowland"), is the registered proprietor of the Hedsor Wharf Estate ("Hedsor Estate"), a property whose grounds include one bank of Hedsor Water, parts of the other bank and the whole of the river bed of Hedsor Water. The issue before the court is whether PRN which at one time undoubtedly existed over Hedsor Water continue to subsist or have been extinguished or ceased to be exercisable.
2. Much of the argument in this case focuses on two weirs erected at the upper and lower ends of Hedsor Water (to which I shall refer in their various forms respectively as "the Upper Weir" and "the Lower Weir" and together as "the Weirs") and the obstructions which they have occasioned to the exercise of PRN. The parts of the other bank of Hedsor Water which does not form part of the Hedsor Estate and which I shall refer to as "Sashes Island" vested in the Defendant's predecessor in title in 1926. The only significance of Sashes Island in this action is that it has at all times afforded a means of access to Hedsor Water for the exercise of any subsisting PRN over land not vested in the owner of Hedsor Estate.
3. Throughout the 19^th century Hedsor Estate was owned by successive Lords Boston. (I shall use the term "Lord Boston" to refer to the current Lord Boston at the date of the event or transaction in which a Lord Boston participated). In December 1924 Lord Boston sold Hedsor Estate to a Mrs Moore who in turn in September 1948 sold it to a Mr Scott. In December 1949 Mr Scott sold Hedsor Estate to a Mr Badcock who on the 18^th April 1968 sold it to the Sugar Corporation of Malawi Limited ("SCML") which purchased it for the occupation of Mr Rowland as his country home. On the 19^th April 1974 SCML sold and transferred Hedsor Estate to Mr Rowland. On his death in 1998 probate of Mr Rowland's will was granted to the Claimant who was as his executrix and sole beneficiary entitled to his estate. Title to Hedsor Estate was registered in her name on the 22^nd November 2001.
4. Responsibility for the improvement and preservation of the navigation of the Thames was vested in the Thames Commissioners ("the Commissioners") by Act 24 Geo II C.8 (1751) ("the 1751 Act") and continued in a series of later Acts. In 1866 the functions performed by the Commissioners passed to the Conservators for the River Thames ("the Conservators"). Lord Cairns LC spoke of the role of the Conservators in these terms in Cory v. Bristol (1877) IAC 262 at 273: "They are made [by statute] the guardians, as it were, of the navigation of the Thames and the protectors of the bed and soil of the Thames for the purposes of the navigation. They have certain powers – very large powers – given to them for the protection of navigation". The latest Act conferring powers and imposing duties on the Conservators is the Thames Conservancy Act 1932 ("the 1932 Act"). By the Environment Act 1995 ("the 1995 Act"), the Environment Agency ("the Defendant") was constituted as the public body responsible for the preservation of the navigation of the Thames vested with the powers previously vested in and subjected to the duties previously imposed upon the Conservators, and thereafter assumed the role of guardian of navigation on the Thames. Section 6 of the 1995 Act provided that the Defendant should have the additional duty, to such extent as it considers desirable, generally to promote the use of the waters of the River Thames for recreational purposes. I shall refer to the Commissioners, the Conservators and the Defendant together and the navigation authorities for the time being as "the Navigation Authorities" (abbreviated to the "NA").
5. PRN have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The ambit of the PRN since 1885 has been statutorily defined first by the Thames Preservation Act 1885 ("the 1885 Act") and currently by section 79(1) of the 1932 Act as including the right to use both for navigation and for recreation and resort. Section 259 of the 1932 Act saved any rights or entitlements as Lord Boston, his successors and assigns may have with respect to Hedsor Water. There are two issues in this case. The first issue is primarily a question of statutory construction and in particular the construction of sections 2 and 5 of the 1885 Act. The question is whether under section 2 the effective exclusion of the public from exercising PRN over Hedsor Water over the 20 year period prior to enactment of the 1885 Act ("the 20 Year Period"), gave rise to an entitlement on the part of Lord Boston to exclude the public from Hedsor Water and whether section 5 conferred on Lord Boston as riparian owner the right to obstruct the exercise of PRN over Hedsor Water. The second issue is an issue of substantive law, namely whether the Claimant has since acquired such a right or entitlement under the doctrine of legitimate expectation, such legitimate expectation arising from the acknowledgement by the NA since 1894, and most particularly in 1968 (when SCML acquired the Hedsor Estate) and in April 1974 (when Mr Rowland acquired Hedsor Estate), that there were no PRN and the reliance by Mr Rowland on that acknowledgement when he purchased Hedsor Estate. In this action the Claimant claims declarations that the answers to these questions are in the affirmative. The Defendant opposes these claims and seeks declarations that Hedsor Water remains subject to PRN and that it is entitled to perform its statutory functions under the 1932 and 1995 Acts with respect to Hedsor Water.
6. This action accordingly raises two important legal issues. The first is whether PRN over the Thames subsisting in 1885 can be extinguished by proof of exclusion of the public for the 20 Year Period or may be subject to rights of riparian owners to obstruct their exercise. The second is whether the doctrine of legitimate expectation, reinforced (if necessary) by the provisions of the Human Rights Act 1998 ("the HRA"), which incorporates into UK law the European Convention on Human Rights ("the Convention") can entitle a riparian owner to the extinguishment of PRN or other relief in respect of the exercise of such rights. In the course of argument a multitude of issues of fact and law have been raised. I am most grateful to all Counsel, and most particularly Mr Elvin, the Advocate to the Court, for their valued help.

THE HISTORY OF HEDSOR ESTATE

7. The history of Hedsor Estate up until 1885 (and in particular during the 20 Year Period) is relevant to the Claimant's case on the first of the two issues and in particular the application of sections 2 and 5 of the 1885 Act contended for by the Claimant. For the reasons which will appear when I turn to the construction of those sections, I do not think that the history and the resolution of the difficult questions of historical fact raised by the Claimant are of the significance or relevance suggested by the Claimant. Nonetheless I shall seek to cover this period in the history but without feeling the need to undertake the depth of analysis or giving definitive answers to questions clouded in mystery which can best be left to historians. The history of the period after 1885 and most particularly the period leading up to the acquisition of Hedsor Estate by SCML and Mr Rowland are relevant to the second issue. In particular what are relevant are the course of conduct and representations of responsible officials "on the ground" of the NA regarding the continuing subsistence of PRN over Hedsor Water.
8. Accounts of the relevant events in the history of Hedsor Water can be elicited (amongst other sources) from the Minutes of the NA ("the Minutes"), contemporary correspondence, the 1884, 1885 and 1894 Reports of Select Committees of the House of Commons and a private four volume History of Hedsor Water ("the History") written by Lord Boston in 1899 and handed to Mr and Mrs Rowland by Mr Badcock prior to his sale to SCML. The Defendant first learnt of the existence of the History shortly before the commencement of this action. There is no reason to believe that the NA ever knew of its existence previously. Lord Boston was practically at war with the NA throughout the period covered by the History, and reading from the History it is reasonable to infer that the contents reflect his partisan viewpoint. Certainly on contentious issues his account must be viewed with caution. The Claimant gave evidence as to the importance to Mr Rowland of the private character of Hedsor Water when SCML and subsequently when Mr Rowland purchased Hedsor Estate. She was not cross-examined and her evidence is accordingly to be accepted as unchallenged.
9. Hedsor Water is a three-quarter mile loop of the Thames at Hedsor, beginning just downstream of Cookham Bridge near Maidenhead in Buckinghamshire. Hedsor Water forms part of the natural mainstream of the Thames and until 1830 provided the commercial route for river traffic heading back and forth to London. Hedsor Water was shallow and fast-flowing, the natural gradient of the river-bed making it notoriously difficult and dangerous for larger vessels such as barges. Prior to 1830 Lord Boston, as the owner and occupier of Hedsor Estate, and in particular as riparian owner at Hedsor Water, derived an income from commercial traffic passing through Hedsor Water. This included rent payable by a tenant whose horses were used exclusively for towing barges along Hedsor Water and the rent from the lease of, and tolls payable with respect to, his wharves.
10. But also prior to 1830 there were many complaints about the inconvenience to commercial traffic passing through Hedsor Water arising from the physical difficulty of navigation, and in response to those complaints in 1830 pursuant to their powers conferred by section 8 of Act 52 Geo III c.47 of 1812 ("the 1812 Act") the Commissioners made a cut ("the Cut") in the river above Hedsor Water to enable river traffic to bypass Hedsor Water. This was one of 44 cuts made in the Thames by the NA in the 18^th to early 20^th centuries. Section 8 empowered the Commissioners to erect any lock or other device for the improvement of navigation and to make any cut for the same purpose provided that no cut should divert or stop up the present or usual channel of the river. The PRN became exercisable through the Cut as through Hedsor Water. At that date no obstruction was placed or existed at either end of Hedsor Water.
11. In 1833 Lord Boston complained to the Commissioners about the construction of the Cut. The Commissioners did not act on the complaint. Accordingly Lord Boston claimed compensation from the Commissioners for the loss of income from the towing path on his estate occasioned by the Cut. The Commissioners defended the claim, but the Buckinghamshire Court of Quarter Sessions awarded Lord Boston £1,000 compensation in respect of loss of income from his towpath, £120 in respect of money expended on his stables and £200 as costs. When the Commissioners did not pay, Lord Boston applied in the King's Bench for an order of mandamus and in 1836 such order was granted. The decision of the King's Bench is reported at R v The Commissioners of the Thames & Isis (1837) Law Reports Journal, Vol xv pp.17-23.
12. In 1833 the Commissioners placed a gravel bank in the river at the upper end of Hedsor Water near the location of the later constructed Upper Weir. Lord Boston responded by bringing (through his agent Mr Wiggington) a claim in nuisance against the Commissioners. The Commissioners resolved to take all steps to defend the writ, but nonetheless allowed Lord Boston to obtain judgment in consequence of which the Commissioners had the gravel bank removed from the river.
13. In 1837, in order to improve the water level in, and hence through, the Cut, after obtaining counsel's opinion the Commissioners built an open or movable (flash) weir at the upper end of Hedsor Water i.e. the Upper Weir. This weir was not specifically designed to let boats through, but it could do so if all the paddles and the beam were removed, but it was inherent in the design of the weir that opening it caused a rush of water and this made difficult passage in either direction before the rush subsided and led to a loss of water level in the river above weir, causing inconvenience to those upstream who had a need for maintenance of that level, such as mill owners and those wishing to use the Cut.
14. The Commissioners did not want river traffic to avoid paying tolls in the Cut by using Hedsor Water, though tolls could (in theory) be recovered in law from such traffic under section 5 of the River Thames and Isis Navigation Act 1795 ("the 1795 Act") and on at least one occasion were so recovered. To this end the Commissioners gave instructions to their watermen to allow only the barges of Lord Boston's tenants at Hedsor Water through the Upper Weir.
15. From 1837 until the Lower Weir was erected in 1843 navigation through Hedsor Water became increasingly difficult, and at times impossible, no doubt at least in part because of the building of the Upper Weir.
16. In early 1838 the Commissioners received a complaint from a Mrs Angel that the raising of the water level in the Thames above the Upper Weir caused by the erection of the Upper Weir adversely affected the operation of her mill. In response to this complaint (as recorded in a Minute of a Meeting of the Commissioners' General Committee dated the 30^th March 1838) on the 26^th March 1838 five Commissioners undertook a site visit in the course of which they directed that the Upper Weir be shut while they travelled upstream to the mill and later passed through the Upper Weir and proceeded down the old channel. This was springtime when the river may be expected to have been full.
17. In the summer of the same year however the effect of construction of the Upper Weir on the flow of water and traffic to Hedsor Water was very substantial, and this resulted in Lord Boston's tenant of the wharf shortly thereafter giving up his tenancy and Lord Boston on the 6^th October 1838 writing a letter of complaint to the Commissioners.
18. Lord Boston's complaint led in 1838 to a claim (under section 22 of the 1795 Act) for compensation for unlawful interference with his rights as riparian owner. The complaint was submitted to arbitration and the arbitration culminated in the entry by Lord Boston and the Commissioners into an agreement dated the 10^th November 1843 ("the 1843 Agreement"). The 1843 Agreement provided that the Commissioners should: (1) pay to Lord Boston £75 in full satisfaction and discharge of all claims in respect of the complaint; (2) within 12 months at their own expense repair the banks of the Thames at Hedsor Water and thereafter keep them repaired; (3) within the same period at their own expense "put up double gates with all necessary tackle and other conveniences for facilitating the passage of barges and other craft through the [Upper Weir]"; (4) within the same period at their own expense erect at the lower end of Hedsor Water "a good and sufficient moveable weir with sliding gates for a passage through" similar in construction to the existing Upper Weir "of a height sufficient to pen back the water to the height of one foot above the ordinary level of the stream ... such new weir to be removed and put up again by the said Commissioners at the usual seasons" i.e. the Lower Weir; (5) at no time allow any footway to be made or used by any persons or persons whomsoever either over the Upper Weir or the Lower Weir, and that the Commissioners or their successors would within 12 calendar months from the date of the 1843 Agreement "cause to be erected or put up at either end of the said weirs an effectual fan palisading and other necessary defences (if any) for the purpose of preventing access or approach to or over the said weirs respectively" and to "keep such palisading in a necessary state or repair"; (6) at their own expense from time to time at all times when found necessary to cause Hedsor Water to be ballasted and kept ballasted "so that in ordinary seasons a barge of 60 tons burden may be conveniently navigated through the same channel; (7) and also do and execute all such other works matters and things (if any) as shall or may be necessary for keeping the said channel so navigable".
19. Pursuant to the 1843 Agreement, in 1843 or 1844 the Commissioners: (1) installed the double gates at the Upper Weir (transforming it from a flash into a pound lock) with all the conveniences to facilitate the passage of large boats; and (2) built onto Lord Boston's existing eel bucks the Lower Weir (an open or moveable weir with no lock or passage for boats except by the lifting of the sluice or sluices). They probably did not build fan palisades on the Upper Weir until later (see paragraph 22).
20. In the meantime a railway was built in the district and this adversely affected the usage of the Thames for commercial traffic and in particular Hedsor Water.
21. In 1846, according to the History, Lord Boston complained to the Commissioners that a Captain Hall and others had entered Hedsor Water through the Upper Weir and attempted to fish, notwithstanding Lord Boston's ownership of the fishery at Hedsor Water. (This was not a complaint under section 22 of the 1795 Act, for it did not complain of any injury caused by works of the Commissioners or their operation or effect). He asked for the Commissioners' assistance in checking these trespasses. In response and as a conciliatory gesture to Lord Boston, (no doubt a powerful and influential figure at the time) the Commissioners (1) locked (according to the Claimant) the Weirs or (according to the Defendant) the gates to the Weirs and gave a key to Lord Boston in respect of the Upper Weir (retaining keys in respect of both Weirs themselves) and (2) erected signs or permitted signs to be erected on the weirs stating: "Thames Navigation. No thoroughfare. All persons forbidden to trespass upon these weirs." The NA may have maintained signs at the Lower Weir to this effect at all times thereafter. At the same time the Commissioners wrote to Lord Boston that "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". What the Commissioners did was to make and implement a unilateral decision to take the action referred: it was a revocable arrangement for the benefit of Lord Boston, not an arrangement or agreement with Lord Boston. The letter written to Lord Boston confirms that the Commissioners considered (as I shall later hold correctly) that they had no power to extinguish or suspend PRN over Hedsor Water and made clear (if there could otherwise be any doubt) to Lord Boston that they had no intention to enter into any legally binding agreement to this effect. The contents of this letter favour the Defendant's contention that what was locked were gates, and not the Weirs, or at any rate that the public could still obtain access to Hedsor Water in exercise of their PRN, for the Commissioners had no more power to suspend exercise of PRN than to extinguish them.
22. By 1868, both the Upper and Lower Weirs had fallen into a state of disrepair. On the 20^th June 1868 Lord Boston wrote to the Conservators, who had taken over the Commissioners' functions in respect of the upper Thames (including Buckinghamshire) in 1866, reminding them of their obligations to repair under the 1843 Agreement. The Conservators undertook an inspection of Hedsor Water in the course of which they found the Upper Weir "very leaky and requiring repair" and the Lower Weir "leaky in the sills". In 1869 the Conservators built a new Upper Weir, this weir being a closed weir with no lock or other openings for boats. In response to Lord Boston's complaint that, lacking a lock, the Upper Weir had been built in contravention of the 1843 Agreement, the Conservators explained that the lock contained in the original Upper Weir had "never yet been used" and that therefore the building of a lock or gates in the weir was "not of paramount importance and the Conservators could not in the present state of their funds expend upon it a large amount which would be required to put it in a sufficient state". The Commissioners further undertook to erect fan palisades at each end of the weir "to prevent persons trespassing upon it and with the same object they will put up notice boards". Apparently none had previously been erected. Lord Boston's solicitors denied that the lock had never been in use (a matter on which perhaps he had better occasion to know the full facts) and stated that the temporary closing of the passage must not be regarded as prejudicing his right to require the agreement to be fully carried out. The new Upper Weir was so constructed that it was impossible for boats approaching from down-stream to pass through it, and though theoretically small pleasure craft could gain access to Hedsor Water by means of the Upper Weir, such access would be uninviting and dangerous.
23. In 1870, Lord Boston made a further complaint to the Conservators concerning the state of the Lower Weir. Lord Boston wanted the Conservators to convey the Lower Weir to him, subject to his undertaking to keep it in a state of repair. After undertaking a viewing expedition of Hedsor Water the Commissioners rejected this proposal. Instead they agreed that Lord Boston could re-erect the Lower Weir at his own expense, the Weir thereafter to be kept in a state of repair by them and subject to the proviso that "the execution of the work by his Lordship shall not prejudice any of the rights of the public or of the owners or occupiers of the adjoining property". Lord Boston replied that he did not recognise any right of the public or of owners or occupiers of the adjoining property "in the Lower Weir". Pursuant to this agreement in 1871 Lord Boston re-erected the Lower Weir. The replacement weir appears to have had a fixed gangway and so it would not have allowed barges or other large craft through. The History records that a "sluice" could be opened to enable a pleasure boat to pass through. This would have involved a person standing on the weir to lift the sluice.
24. The Conservators by virtue of their erection of the Weirs in pursuance of their statutory powers and (if necessary) by reason of the provisions of the Thames Navigation Act 1866 Act ("the 1866 Act") were the legal owners of the Weirs and in legal control of them. As a result of the events referred to above, from 1846 onwards (and in particular during the 20 year period preceding enactment of the 1885 Act) public navigation over Hedsor Water practically ceased. This accords with the evidence given before and considered by the House of Commons Select Committees convened to discuss the preservation and use of the Thames for recreation in 1884, 1885 and 1894. The Committees were not satisfied that Lord Boston and other riparian owners in a like position had proved any entitlement to exclude exercise by the public of PRN over waters such as Hedsor Water: it was left to the NA to decide this question subject to the right of the parties to any dispute to have it resolved by the court. The Reports of these Select Committees led respectively to the passing of the 1885 Act and the Thames Conservancy Act 1894 ("the 1894 Act").
25. In 1894, there was discussion before the Select Committee as to the status of Hedsor Water. Lord Boston contended that it was private, basing this claim on the provisions of the 1843 Agreement. It is common ground before me that the provisions of the 1843 Agreement could not of themselves on any basis justify this contention. The Conservators disputed Lord Boston's contention. The dispute was not resolved by the Committee. Instead a saving provision in respect of any such rights and entitlements as Lord Boston, his successors and assigns, might have with respect to Hedsor Water was inserted in the 1894 Act (the provision now found in section 259 of the 1932 Act).
26. The Upper Weir burst in 1897. The Conservators erected a temporary barrier in place of the pre-existing Upper Weir, which barrier remained in place until 1898. The Conservators pursuant to their statutory powers rebuilt the Upper Weir in 1898 without any locks or openings for boats. In 1957-8 the NA undertook a dredging and tree planting scheme in Hedsor Water. In 1964 the NA pursuant to their powers under the 1932 Act rebuilt the Upper Weir without any locks or openings for boats. The Upper Weir is plainly not designed for the passage of boats though there is scope for the dangerous pursuit of shooting the rapids.
27. There is no evidence that the NA positively asserted that Hedsor Water was public at any time between the Select Committee proceedings in 1894 and late 2000, but they continued to perform their statutory functions as such at Hedsor Water when occasion demanded.
28. With the passing of time at some date between 1894 and 1948 (though there is no record of any formal minute or decision to this effect) responsible officers of the NA "on the ground" (and in particular Mr Jim Andrews, the Cookham lock keeper, since deceased), since they knew no better and had no access to the History, appear to have inferred from the absence of exercise of PRN over Hedsor Water and the savings clause in section 232 of the 1894 Act that Hedsor Water was private and thereafter acted on this basis. Later Mr Tom Christie ("Mr Christie), the Defendant's Navigation Secretary since 1986, who came on the scene in 1990 formed the same belief and acted in the same way. I do not think that their beliefs and actions would have been the same if they had realised the existence of the History and had recourse to it. In the belief to which I have referred:

(1) the NA lock keepers sought permission from the Claimant and her predecessors before launching boats on Hedsor Water on a number of occasions;

(2) if boats came in Hedsor Water, the Claimant and her predecessors would call the Defendant's lock-keepers, and the latter would warn the boats that Hedsor Water was private;

(3) the Defendant's officials permitted access to Hedsor Water to be obstructed, namely by the remains of the Lower Weir (on top of which a footbridge had been erected);

(4) they permitted signs to be erected and to remain at the Lower Weir stating that Hedsor Water was private; and in 1990 (after Mr Rowland purchased Hedsor Estate) they permitted the erection of a sign to the like effect at the Upper Weir;

(5) they erected public information signs off the Cut stating that Hedsor Water was private. (It is conceded that no reliance was placed on these public information signs by Mr or Mrs Rowland when the relevant decisions to purchase were made).

29. When the Claimant and Mr Rowland first became interested in Hedsor Estate, they saw the signs (other than those referred to in (5) above) and the footbridge and Mr Badcock informed them that no-one had the right to enter Hedsor Water and of the above practices of the NA; Mr Badcock provided them with the History and copies of the savings provisions safeguarding Lord Boston's rights, namely section 232 of the 1894 Act and Section 259 of the 1932 Act. Mrs Rowland does not state in her evidence whether she and her husband read the History, but since the History was plainly provided to be read, I think it reasonable to infer that they did so. These matters led them to believe that Hedsor Water was private. SCML and Mr Rowland purchased Hedsor Estate for use by Mr Rowland in the belief held by Mr and Mrs Rowland that Hedsor Water was private, and would not otherwise have done so. They did not however make any inquiries of the NA as to the position nor (it must be inferred) did the solicitors instructed on the purchase. The solicitor's file is not available (it has apparently been lost or destroyed), but it is reasonably clear that the solicitors acting on the purchase by SMCL and Mr Rowland were not asked to advise or inquire, were not shown the History and most certainly gave no positive advice encouraging the belief held. No suggestion is made by Mrs Rowland that she or her husband sought, obtained or relied on any such advice, though plainly the investigation of title required (if the purchaser was concerned to obtain a title free of PRN) a clearance on this question and a consideration of the significance of the two sections in the 1894 and 1932 Acts. The Inquiries Before Contract on the purchase from Mr Badcock and the subsequent conveyancing documents disclose no attention being attached to the extinguishment of PRN. Quite plainly any competent solicitor asked for advice on the question whether PRN continued to subsist would not have allowed the matter to rest with the considerations relied on by Mr and Mrs Rowland. He would have advised at best that PRN might continue to subsist and at worst that such rights plainly did subsist. The solicitor would also have made a direct formal inquiry of the NA.
30. From 1968 to late 2000, the NA continued to treat Hedsor Water as in the same manner as they had previously. Thus for example in 1990 Mr Christie confirmed that the placing by Mr Rowland of a pile in the bed of Hedsor Water did not require the Defendant's licence as Hedsor Water was outside the scope of the 1932 Act. Mr Rowland enjoyed the privacy and security of absence of exercise of PRN until the end of his life.
31. In October 2000 the Claimant wrote to the Defendant complaining about trespass by boats into Hedsor Water. This complaint occasioned Mr Christie for the first time to lend his mind to the question whether PRN continued to subsist over Hedsor Water and (for this purpose) to investigate the factual and legal history of Hedsor Water. It was at this stage that Mrs Rowland first referred the Defendant to and offered access to the History. After taking legal advice the Defendant reached the view that PRN continued to subsist over Hedsor Water. By letter dated the 20^th February 2001 to the Claimant the Defendant stated that it had concluded that neither the 1843 Agreement nor the saving clauses in favour of Lord Boston in the 1894 or 1932 Acts had abrogated the PRN. The letter went on to say as follows:

"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 occupier, Mrs Rowland, any greater discomfort than is inescapably necessary for the removal of prohibitory 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.

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...."

In this thoughtful and conciliatory letter the Defendant made plain that in its decision-making whether to assert PRN over Hedsor Water it had given anxious consideration to Mrs Rowland's disappointed expectation and concerns. This letter however led to the commencement of these proceedings by the Claimant on the 4^th June 2001.

32. If Hedsor Water is reopened to the public, as the Defendant now proposes, the Claimant will suffer detriment, in that the security and privacy of the Hedsor Estate which she is currently enjoying will be substantially impaired. The value of Hedsor Estate with Hedsor Water free of PRN is substantially greater than its value if subject to PRN.
33. At all material times, the land opposite Hedsor Estate and adjoining Hedsor Water (namely Sashes Island) has been owned and/or occupied by persons other than the Claimant and her predecessors. Sashes Island at all material times has been continuously let for agricultural purposes terminable on 6 month's notice. There is not presently, and there is no evidence that there has ever been, any public right of access over Sashes Island to Hedsor Water, but the Defendant is in a position (subject to termination by 6 month's notice of the agricultural tenancy) to afford such access to the public over its own land.

THE RELEVANT LEGISLATION

34. The Thames Navigation Act 1623 is the earliest legislation relating to the Thames to which I have been referred. The Act appointed Commissioners to render navigable a part of the Thames to the west of Hedsor Water (between Burcot and Oxford) for the passage of minerals.
35. Following constitution of the Commissioners by the 1751 Act, there was enacted the River Thames and Isis Navigation Act 1771 ("the 1771 Act") "for improving and completing the navigation of the Rivers Thames and Isis from the City of London to the Town of Cricklade in the County of Wilts". Section 7 of the 1771 Act gave the Commissioners power to make such wharfs, locks and weirs for completing and carrying on navigation on the two rivers as they thought necessary and convenient for these purposes. Section 18 provided that nothing in the Act authorised the Commissioners to make a cut to divert the present course of the river.
36. The 1795 Act, enacted (like the other Acts) for improving navigation on the Thames and enlarging the powers of the Commissioners for this purpose, provided in section 5 that the same tolls should be payable whether or not a vessel passed through any pound lock. Section 22 provided a method whereby any person claiming to be aggrieved, damaged or injured by any work by the Commissioners might seek satisfaction. The side note to the section reads: "Method of recovering Damages". The party was to make complaint to the Commissioners and, if the party was dissatisfied with the decision of the Commissioners, might appeal to General Quarter Sessions of the County.
37. The 1812 Act "for improving and completing the navigation of the River Thames and Isis" in section 8 authorised the Commissioners to erect any lock or pound lock or other device for the improvement of navigation and (for the first time) to make cuts provided that no cut should be made "so as to divert or stop up the present or usual channel of the river ... or alter the course of the water passing through the same".
38. The Thames Conservancy Act 1857, after stating in its Preamble that the preservation and improvement of the Thames was of great national importance, in section 2 constituted the Conservators and in section 50 vested the estate and interest of the Corporation of London in the bed and soil of the River Thames in the Conservators. Section 54 prohibited any person from building on the bed or shore of the River Thames without the permission of the Conservators. Section 53 authorised the Conservators to give such permission and to grant to any owner authority to make any work immediately in front of his land in the bed of the river. Section 56 authorised the Commissioners to grant similar licences for the formation of recesses and docks and section 57 authorised the grant of licences for the erection of piers and jetties. Section 87 authorised the Conservators to remove any obstructions in the river. Section 98 authorised the Conservators for the purpose of maintaining and improving the navigation of the river to dredge, alter, vary deepen, restrict, diminish, contract, shorten, straighten and improve the bed and channel of the river and abate all obstructions. Section 113 gave the Conservators power to sell superfluous lands. Section 179 provided that none of the powers conferred should take away, alter or abridge any rights of riparian owners.
39. The Thames Conservancy Act 1864 ("the 1864 Act") (besides making the Conservators a more representative body) by section 71 validated contracts and conveyances by the Conservators for the sale of superfluous land. Section 79 contained a saving clause for the rights of riparian owners.
40. The 1866 Act dissolved the Commissioners and constituted the Conservators in their place. Section 41 extended the authority of the Conservators over the whole of the river from Staines up to Cricklade. Section 43 vested in the Conservators the ownership of all locks, dams and weirs then existing in or on the stream or bed of the Thames in the Conservators who should maintain them "unless and until removed by lawful Authority" and should have free access by land and water to any lock, dam or weir "for the purposes of repair and other necessary purposes". The section however made provision for the owner of any lock, dam or weir by notice to object to such vesting, and that, upon receipt of such notice, if the Conservators did not disclaim the lock, dam or weir, the issue should be referred to an arbitrator to decide whether they should vest in the Conservators or remain vested in their previous owner. Section 44 provided for compensation when vesting took place. Section 45 provided as follows:

"Provided also, That the vesting by this Act of any Lock, Dam, or Weir in the Conservators shall not give to any Persons other than the Conservators, their Agents or Servants, the Right to pass and repass in Boats to or from any Lock, Dam, or Weir, which is at the passing of this Act the Property of any individual Owner, over any Portion of the Thames that has ceased to be navigable since the Use of such Lock, Dam, or Weir for the navigation of the Thames was discontinued, or to land upon such Lock, Dam, or Weir, or take away or interfere with any Right of Way existing at the passing of this Act to or over any Lock, Dam, or Weir for the Time being existing in or on the Stream or Bed of the Thames.

41. This saving provision is not easy to construe. It does appear to contemplate that the discontinuance of the use of a lock, dam or weir for navigation may have led to portions of the Thames ceasing to be navigable; and that this course of events may have determined (or possibly suspended) the right to pass and repass in boats to and from such lock, dam or weir. It is not suggested that the section can have any relevance on any issue before me.
42. The Commons Select Committee Report on River Preservation ("the Report") was presented to the House on the 4^th August 1884. Evidence was put before the Committee on behalf of Lord Boston (amongst others) by his agent Montague Hepworth. According to Mr Hepworth:

"(1) Lord Boston 'did not really take' Hedsor Water ('HW'), 'But it was really forced on him against his will' (para 4457);

(2) Lord Boston claimed only 'the bed of the river just the same as any other owner', as the evidence before the Committee had shown (para 4458);

(3) the right of Lord Boston by law to keep any person from entering HW was not in question, because HW could not be entered without trespassing by going over land (paras 4460-4461);

(4) the reason why Lord Boston's wharfs ceased to be used after the date of the 1843 Agreement was that a railway station was opened nearby (paras 4473-4474);

(5) the question whether the public had a right to enter HW was one for the NAs (para 4478);

(6) the principal reason why he would deny that the public had a right to enter HW was that they could not get there (para 4482)

(7) as to whether Lord Boston's claim was a legal one, Lord Boston claimed no more than what the 1843 Agreement gave him (para 4483); and

(8) the 1843 Agreement gave Lord Boston 'the exclusive possession of' HW, 'but only by the Weirs' (para 4484)."

43. The Report noted:

"that 'by reason of the development of the railway system the ancient employment of the Thames as a waterway of a considerable commerce has dwindled to an almost insignificant point, while the pleasure traffic on the river has ... in the inverse ratio increased'; and that the evidence before them had disclosed various conflicts between the public and riparian owners concerning inter alia the fact that 'the Thames is claimed to be navigable by immemorial prescription from bank to bank, and complaint is made [of] the use by boats of so-called backwaters and arms of the river running between its banks and islands, or eyots, lying in the stream, is often objected to by a neighbouring proprietor who owns a mill or eel-bucks, or where the passage through is blocked by a weir; and in some cases proprietary rights are claimed, to the exclusion of the public, even where the water of the Thames flows without obstruction.'"

44. The Report reached a series of conclusions on this point. (1) In none of the Acts passed for the improvement and regulation of the navigation has a riparian owner been authorised to claim any right over or limitation to the navigation of the Thames by the public from bank to bank from Cricklade to the sea. (2) The sole exception to this is section 45 of the 1866 Act, which was introduced at the suggestion of mill-owners, and on which claims had been founded to limit the right of the public to navigate waters cut off by weirs from the open river. (3) However section 45 of the 1866 Act did not in terms exclude the public from open backwaters but only prevented them from going in boats to land on weirs, where all rights of way were preserved as such. (4) There was no evidence before the Committee, and there did not appear to have been any evidence before earlier Committees to which questions regarding the Thames had been referred, establishing any original right in mill-owners or others to exclude barges and boats from any open backwater that was part of the Thames, nor from any so-called backwaters which boats can navigate, including certain arms or side streams of the river that had been in ancient times its main channel, and had subsequently been closed, under the authority of the NAs by weirs erected for the purposes of the navigation. (5) Parliament had already recognised the rights of the owners of ancient mills, and had balanced them against the rights of the public, by providing the mill-owners with compensation under the 1866 Act and reserving to them the use of the water, so far as this did not interfere with the public enjoyment of the river in its paramount function as a public highway, while at the same time transferring the rights claimed by the mill-owners to locks and weirs to the NAs. (6) In the Committee's view, "in the event of any future legislation, the rights of the public to move in boats over any and every part of the river through which Thames water flows, as 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 of other purposes, to prove his right to do so in a court of law".
45. The recommendations of the Report were given effect by the 1885 Act. Sections 1 to 5 of the 1885 Act are of critical importance in this action. They read as follows:

"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 all such backwaters creeks side-channels bays and inlets connected therewith as forms 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 boats 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.
Rights 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.
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."

46. The Thames Conservancy Act 1894 ("the 1894 Act") in section 72 re-enacted the relevant provisions of the 1885 Act in substantially the same terms save that the words in section 5 of the 1885 Act "and the obstruction itself shall be deemed to be a nuisance to the navigation" are omitted. The 1894 Act contained the saving provision in respect of rights and entitlements of Lord Boston with respect to Hedsor Water which I referred to in paragraph 25.
47. The 1932 Act in section 44 empowered the Conservators (subject to the provisions of the Act) to improve and complete the navigation; in section 47 placed them under a duty to maintain and repair weirs vested in them until removed by lawful authority; and by section 79 re-enacted the provisions of section 72 of the 1894 Act. The 1932 Act in section 259 re-enacted the saving provision in the 1894 Act.

PRN

48. Though uncertainties may have existed in certain areas in the past, the general principles governing PRN over the Thames were evolving in the 19^th century and by 1880 were reasonably clear: see e.g. Coulson & Forbes on Waters 1880, 2^nd edition 1902. The principles are even clearer today. The PRN is a right to public use of the river: see Lord Wilberforce in Wills Trustees v. Cairngorn Canoeing and Sailing School ("Wills Trustees") 1976 SC (HL) 30 at 123. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce: see Lord Salmon in Wills Trustees at 152-3. This was indeed however recognised as long ago as R v. Russell 6 B&C 566 where Bayley J said:

"The right of the public on navigable rivers is not confined to the passage: trade and commerce are the chief objects and the right of passage is chiefly subservient to those ends."

The right of passage in particular for trade and commerce was the principal right embraced in the PRN: it was not however the sole or exclusive right. The right to use for public recreation was clearly enunciated and confirmed in the Preamble to the 1885 Act.

49. There are two distinctions at common law between tidal and non-tidal rivers. (a) In the case of tidal rivers the presumption is that the bed of the river belongs to the Crown and to establish PRN no prescriptive user is required; in non-tidal rivers the presumption is that it is vested in the riparian owners and a prescriptive user has to be established. In a case such as the present where the PRN is established, this distinction between tidal and non-tidal rivers is irrelevant. (b) In the case of tidal rivers the public rights extend over the whole watercourse but in the case of non-tidal rivers the public rights (at least ordinarily) are confined to the channel of the river: see Orr Ewing v. Colqhoun (1887) 2 App. Cas. 839 at 848 per Lord Blackburn. The passage from the Report which I have quoted in paragraph 42 suggests that a question existed at the time whether this principle applied to all non-tidal parts of the Thames, but (as recommended in the Report) section 1 of the 1885 Act declared that the public rights of navigation extend to any and every part of the River Thames.
50. At common law PRN cannot be lost by disuse (see Wills Trustees above). As Lord Lindley said in Simpson v. Attorney General [1904] AC 476 at 510: "the doctrine once a highway always a highway is, I believe, applicable to rivers as to roads". Likewise PRN could not be extinguished by physical obstruction: see e.g. Vooght v. Winch (1819) 2 B & Ald. 262. Though Lord Hailsham at p.147 in Wills Trustees reserved his opinion whether a physical obstruction by a riparian owner might extinguish the PRN, the weight of authority militates against any such exception, and it is common ground in this case that the general principle which I have stated is free from any such exception. PRN may only be extinguished by legislation or exercise of statutory powers or by destruction of the subject matter of PRN e.g. through silting up of the watercourse. On principle for this purpose the process of silting up would have to be irreversible if it was to give rise to an extinguishment, as opposed to a suspension, of PRN. (Swift Ditch near Culham, the subject of the 1857 Conveyance at D/326, may be an example of a property in which PRN had become extinguished in this way). The Claimant has cited to me as authority for the proposition that PRN might be extinguished in some other way the cautious words of Bayley J in R v. Montague (1825) that the Commissioners of Sewers might have the power to extinguish PRN if they found that it would be for the benefit of the whole level. The words bear no such construction. They presume the existence of the necessary express or implied statutory authority which is absent in this case.
51. The position in respect of obstructions requires a moment's further consideration. Obstructions may arise naturally through seasonal fluctuations in water levels and through natural obstructions in the water and legitimate man-made structures. The status of weirs and locks as obstructions to navigation has long been a problem for the law. Weirs were originally placed on the River Thames by owners of mills in order to regulate the supply of their water and winches were also erected to haul boats over them. In 1347 a statute was passed ordering all locks and weirs to be removed as obstructions to the PRN. Legislation condemning locks and weirs as nuisances continued until the 17^th century. But during a period when water transportation was vital and its utility and safety were matters of the foremost importance, the increasing size of barges converted mill dams and weirs from nuisances to navigation into useful and necessary adjuncts to navigation: the deeper water they ensured (except in very dry seasons) made navigation by very large vessels practicable: see the report of the Select Committee on Thames River Preservation 1884 page viii. The recognition of the practical utility and necessity of locks and weirs and of the need for legislation to authorise their construction was reflected in the series of statutory powers conferred on the NA throughout the 18^th and 19^th centuries to erect and maintain them for the improvement of navigation. It is to be noted that an obstruction interfering with navigation was unlawful even if erected with the Conservators' consent unless the Conservators were granted statutory power to give such consent: R v. Lord Grosvenor (1819) 176 ER 720; and the NA's powers to build obstructions to navigation were confined to situations where they were aids to navigation R v. Betts (1850) 16 QB 1022 at p.1037.
52. The 1771 Act conferred on the Commissioners power to make locks for "completing and carrying on navigation" on the River Thames. The 1812 Act authorised the Commissioners to erect any lock or pound lock or device for the improvement of navigation. The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by the NA and in all likelihood a nuisance: for, as AL Smith LJ said in Conservators of the River Thames v. Smeed Dean & Co [1897] 2 QB 334 at p.336-7: "The Conservators are a statutory body brought into existence for the purpose of preserving, improving and maintaining the navigation of the River Thames ... but the powers granted to them by the 1894 Act are all subservient thereto and except for these purposes no powers are granted to them at all." What he said as to the powers conferred by the 1894 Act is equally applicable to the powers conferred by any other Act under consideration in this case.
53. It is clear that (in the absence of destruction of the subject matter which is not suggested) in this case the PRN over Hedsor Water can only have been extinguished by legislation. It is likewise common ground that none of the relevant legislation confers express power on the NA to extinguish the public right of navigation. Section 3 of the 1885 Act reflects the need for statutory authority even for temporary interference with this public right. The closest that the legislation came to granting such a power is to be found in Section 98 of the 1857 Act which authorised the Commissioners "for the purpose of maintaining and improving navigation of the river" to alter, shorten, straighten and improve the bed and channel of the river. This power enabled the Commissioners prior to the 1885 Act, when the PRN was confined to the bed and channel of the river, by changing the bed and channel of the river to extinguish PRN over the previous and replaced channel. No question has however arisen of exercise of that power in this case. The issue raised by the Claimant is whether the power to extinguish PRN is impliedly conferred, or any extinction is effected, by either or both of two other statutory provisions, namely section 22 of the 1795 Act and section 8 of the 1812 Act. I shall consider each of these in turn.
54. Section 22 of the 1795 Act provides that any person thinking himself aggrieved damaged or injured by any work of the Commissioners or by the operation of such work may make a complaint and the Commissioners may give such satisfaction as they think reasonable. Provision is made for an appeal from the decision of the Commissioners to General Quarter Sessions. Whilst satisfaction is not limited to damages (as the side-note might suggest) and might involve the undertaking of substantial works (as were undertaken under the 1843 Agreement) I reject the Claimant's submission that the power to grant satisfaction extended to extinguishing or suspending exercise of the PRN or converting a public channel of the river into a private channel. A statutory provision should not be construed where no such intention is apparent in the statute as effecting or authorising the interference with vested private rights or rights of the public. If and so far as Hedsor Water was a private channel during the 20 Year Period, this state of affairs cannot have been authorised by this section, still less can the section have authorised the extinguishment or even the suspension of PRN over Hedsor Water.
55. Section 8 of the 1812 Act authorised the Commissioners to create locks, pound locks and other devices to improve navigation and to make cuts provided that the cut should not be made to divert or stop up the channel of the river. The Claimant contends that significance should be attached to the fact that no such proviso is attached to the power to create locks and devices and that the power to make suitable agreements with persons affected by the present or future use of the locks and devices as to the use or operation of the locks or devices was incidental to the express power. But whilst the attachment of the proviso to the power to make cuts was necessary to ensure that the cut did not affect the existing channel, no such attachment was necessary to the power to make locks and devices, for such power was conferred for the purpose and as necessarily incidental to maintaining and improving the existing channel and could not be exercised for the purpose of extinguishing or diminishing PRN, or in such a way as extinguished or diminished PRN over the existing channel. No incidental power can be inferred which is at odds with the overriding statutory obligation of the Commissioners (subject to express provisions to the contrary) to improve and preserve the existing channels for navigation.
56. Accordingly in my view neither section relied on can or does directly or indirectly authorise the extinguishment or even the suspension of PRN over Hedsor Water.

INTERIM SUMMARY OF FACTS AND LAW

57. Before I turn to the provisions of the 1885 Act, it is convenient to summarise the following matters of fact and law which appear to me to be clear beyond question: (1) the construction of the Cut did not and as a matter of law by reason of the proviso to section 8 of the 1812 Act could not divert the existing channel through Hedsor Water or the course of the water passing through the same; (2) the 1843 Agreement was not directed at excluding PRN; it was directed at securing the full and safe navigability of Hedsor Water of which undoubtedly Lord Boston was the primary beneficiary; (3) the construction of the Weirs in 1837 and 1844 was effected in exercise of the Commissioners' powers to improve navigation of the Thames and Hedsor Water; (4) the steps taken by the Commissioners in and after 1846 to prevent persons entering Hedsor Water to fish, so far as they involved an interference with PRN, were a temporary and precarious concession to Lord Boston: (5) the flash Upper Weir erected in 1866 was a temporary measure whilst funds were lacking to provide the pound lock required by Lord Boston and to which he was entitled under the 1843 Agreement; (6) no question arises of the Commissioners ever having exercised their powers under section 98 of the 1857 Act in respect of Hedsor Water; (7) at no material time did the NA have any power to extinguish PRN over Hedsor Water; and (8) the saving provisions in the 1894 and 1932 Acts can have no relevance or application unless the 1885 Act conferred on Lord Boston rights in derogation from the PRN or to obstruct exercise of PRN. (As will shortly appear, the 1885 Act did neither of these things).

THE 1885 ACT

58. By far the greater part of the trial before me has been expended in argument on the merits of the primary contention of the Claimant in this case that section 2 of the 1885 Act operated to extinguish the pre-existing PRN over Hedsor Water and that section 5 of the 1885 Act authorised the Claimant to replace any obstruction to the exercise of such PRN which was at any date hereafter removed by the Defendant. An examination of the scheme of the 1885 Act however reveals that the sections referred to have no application to the facts of this case and in particular PRN over Hedsor Water.
59. I look first at the scheme in outline. Section 1 of the 1885 Act declared the broad ambit of PRN over the Thames. It extends to use by boat for business or pleasure of every part of the Thames (and is not limited to the channel of the Thames) and of all backwaters, creeks, side-channels, bays and inlets connected therewith forming part of the Thames. Section 2 in favour of riparian owners makes three exceptions to and limitations on the extension of PRN over the Thames effected by section 1. PRN were not granted in respect of: (1) private artificial cuts made for the purpose of drainage or irrigation; (2) artificial inlets made for certain private purposes; and (3) channels (by implication natural or artificial) enjoyed for 20 years before the 14^th August 1885 (i.e. the 20 Year Period) as "private channels" either (a) by virtue of a conveyance from or agreement with the Conservators or Commissioners acting under one of the specified Acts or (b) by any lawful title. Section 4 contains two overriding provisos inserted in the Bill in the course of its passage through Parliament. The first (inserted by the House of Lords) is in protection of pre-existing rights of riparian owners in the soil or bed of the river and the second (thereafter inserted by the House of Commons) in protection of pre-existing PRN in favour of the public. The second proviso is critically relevant and is to the effect that nothing in the Act shall be construed as giving any riparian owner any right he did not possess prior to the passing of the Act to exclude the public from exercising any PRN. Section 5 exempts from constituting an offence the failure (after receipt of notice requiring the same from the NA) to remove obstructions to navigation constituted by weirs, bridges and other impediments which have been maintained for the 20 Year Period.
60. I turn now to give the scheme closer examination. The primary feature of the 1885 Act is the extension by section 1 of the PRN over the Thames in two regards. First the PRN are made exercisable over and upon any and every part of the River Thames through which Thames water flows: the PRN are no longer confined to the channel of the river. Secondly PRN are conferred without the need to establish any prior prescriptive user. Prior to that date PRN did not exist over tributaries of the Thames where there was no such prescriptive user (see Bourke v. Davis (1899) 44 Ch D 110) and parts of the Thames had been closed off. Accordingly section 1 was apt to extend PRN over channels over which no PRN previously existed. Sections 2 and 5 were protective provisions in favour of riparian owners in respect, and in respect only, of these extended rights of the public. Section 4 makes clear that sections 2 and 5 are not to construed as restricting pre-existing PRN; sections 2 and 5 could have no application to existing PRN and could confer no new right on a riparian owner to exclude any person from exercise of such PRN. It is of interest that Lord Boston in the History noted with regret that the second proviso diminished the protection afforded by section 2 and left matters "in statu quo" so far as Hedsor Water was concerned. Lord Lester submitted that the sequence in which the two provisos were incorporated in the 1885 Act provided grounds for construing the second proviso in a more restricted way and in particular somehow as merely a limitation on the effect of the first proviso. But the perfectly general language of the second proviso admits of no such construction. Section 2 accordingly (for the protection of riparian owners) excludes from deemed incorporation by section 1 in the Thames of the channels there specified. It can have no application to channels (like Hedsor Water) which prior to the Act formed part of the river and over which prior to the Act PRN already existed. Section 5 (for the protection of riparian owners) saves them from exposure to criminal proceedings in respect of obstructions to navigation constituted by constructions over parts of the Thames other than the channel of the Thames. These constructions (probably) did not constitute obstructions prior to the 1885 Act because they could not interfere with exercise of the PRN over the channel, but now might constitute obstructions because the PRN extended over the whole bed of the river. This section can have no application to constructions on Hedsor Water, for (as section 4 makes plain) section 5 cannot be construed as entitling a riparian owner to interfere with exercise of a PRN which pre-dated the 1885 Act. For these reasons I take the view that the provisions of the 1885 Act, relied upon by the Claimants in this case as extinguishing PRN over Hedsor Water or entitling her to obstruct exercise of PRN over Hedsor Water, have no such effect. I add that the statutory language is sufficiently clear to render otiose the assistance which Lord Lester has sought to obtain from passages in Hansard which do not in any event take the matter significantly further, if at all.
61. I should however go on to say that, even if I am wrong in my construction of the scheme of the 1885 Act, section 2 can in any event have no application and section 5 cannot afford the Claimant the protection which she seeks.
62. Reliance on section 2 requires the Claimant to establish that over the 20 Year Period Lord Boston enjoyed Hedsor Water as a private channel by virtue of a conveyance or agreement made by the Conservators or Commissioners acting under powers conferred by one of the specified Acts or by lawful title.
63. The first issue is whether for the 20 Year Period Hedsor Water was enjoyed by Lord Boston as owner of Hedsor Estate as a private channel. Mr Elvin submitted that as a matter of construction the term "channel" in section 2 could not extend to the natural course of the river. I do not agree that this limitation is to be found in the terms of section 2: it is however implicit in the scheme of the 1885 Act which (as I have already held) limits the scope of section 2 to channels over which PRN did not exist prior to 1885. For the purpose of this part of the judgment however I am assuming that my view on the scheme of the 1885 Act is wrong. Ignoring the scheme of the Act, the term "private channel" in the context of section 2 must mean a channel where the owner of the bed of the river as of right has enjoyed the 20 Year Period free from exercise of PRN and free from exercise by the NA of its jurisdiction as such. The position in respect of Hedsor Water is that over the 20 Year Period, whilst any exercise of PRN was negligible, this was the result of an arrangement between Lord Boston and the Conservators. As a favour to Lord Boston and to protect his fishery, for the time being the Conservators made efforts to exclude the public from exercising PRN or obtaining access to Hedsor Water and discouraged them from exercising their PRN on Hedsor Water, but the Conservators insisted to Lord Boston on the continuing subsistence of PRN. Further (as both the Conservators and Lord Boston insisted) the Conservators continued to have and fulfilled statutory functions in respect of Hedsor Water. I do not think that such a state of affairs satisfied the requirement of enjoyment by Lord Boston of Hedsor Water as a private channel within the meaning of section 2 of the Act.
64. In any event section 2 cannot apply for two reasons. First the section required a legally binding agreement. The concession made to Lord Boson in 1846 (as I have already held) involved no agreement at all and, so far as any agreement could be inferred, such agreement was not, and was not intended to be, legally binding (leaving aside the absence of consideration). Secondly the Conservators had no statutory power to agree to the enjoyment by Lord Boston of Hedsor Water as a private channel. Section 2 required it to be established that the enjoyment as a private channel was by virtue of a conveyance or agreement made by the Conservators or Commissioners acting under powers conferred by one of the specified statutes or by any legal title. The two sections relied on by the Claimant as conferring power on the NA to agree with Lord Boston that he should enjoy Hedsor Water as a private channel conferred no such power. The powers referred to in section 2 would appear to be those conferred by section 113 of the 1857 Act and section 71 of the 1864 Act. Section 113 of the 1857 Act granted to the Conservators power to sell superfluous land and accordingly implicitly to enter into agreements for sale and execute conveyances of superfluous lands. The 1864 Act contained provisions expressly validating contracts and conveyances by the Conservators for the sale of superfluous land. Section 2 of the 1885 Act accordingly excepted from the application of Section 1 superfluous land sold by the Conservators as a private channel. These provisions cannot extend to land over which PRN subsisted and indeed the contrary was never suggested. Neither of these sections can have any application.
65. The Claimant argued that "lawful title" in section 2 should be construed as meaning "as of right" requiring the Claimant accordingly only to establish a 20 year prescriptive enjoyment and that accordingly no statutory legal title was required. This claim is equally hopeless. "Lawful title" does not mean "as of right": it requires more, namely a statutory entitlement to enjoyment as a private water: section 2 does not provide that enjoyment for the 20 Year Period is a substitute for lawful title: it is a superadded requirement. Plainly the lawful title cannot be and is not established. In any event for the reasons which I have already given, Lord Boston's enjoyment was precarious and not as of right.
66. Turning to section 5 of the 1885 Act and its successor statutory provisions, they are not to be construed as conferring upon the Claimant a licence to replace any obstruction to PRN removed by the Defendant. Section 5 and (even more clearly its successor statutory provision which are the currently applicable) merely afford a defence to the criminal offence created by the same section. Most particularly when read in the context of the legislation as a whole and the range of remedies afforded by the common law and the legislation for removal of obstructions created by a riparian owner, the section cannot preclude recourse to other remedies for their removal or confer immunity on the Claimant from civil suit or exercise of the right of abatement in case she creates any, or any such, obstruction to PRN.

LEGITIMATE EXPECTATION AND THE HRA

67. The Claimant's alternative basis of claim resting on legitimate expectation is that Mr Rowland, when he purchased Hedsor Estate, had a legitimate expectation created by the actions and statements of the NA upon which he and the Claimant relied when successively SCML and he purchased Hedsor Estate that Mr and Mrs Rowland and their successors in title to Hedsor Estate would continue to be entitled to enjoy Hedsor Water as a private water, and that it would be unfair and an abuse of power for the Defendant to change its position and seek to deny their entitlement. An alternative basis of relief is claimed under section 6 of the HRA and Article 8 of the Convention ("Article 8") and Article 1 of Protocol No 1 to the Convention ("Article 1") on the basis that the legitimate expectation is a possession entitled to protection under the provisions of those articles.
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 4^th ed at 642 and Administrative Law in Ireland, 3^rd ed at p.863. But it remains the law. For this reason under English domestic law the Claimant can have no legitimate expectation (as claimed in this action) that the Defendant would extinguish or permanently preclude exercise of PRN over Hedsor Water, for the Defendant has never had the power to do so.
70. The practical significance of the alternative basis of claim based on the HRA is that it is directed at trumping the defence of ultra vires raised by the Defendant to application of the principles of legitimate expectation. I shall turn to that alternative basis in a moment. But before I do so, I should add that in my judgment the claim based on legitimate expectation would have failed in any event even if the representation had not been unlawful.
71. Having given the full facts of this case the most anxious consideration I am satisfied that the Claimant has not made out the necessary expectation and that even if (contrary to my view) the Claimant could establish the expectation I am firmly of the view that for the Defendant to resile would not constitute an abuse of power on its part and the Claimant is entitled to no relief.
72. I do not think that the Claimant makes out the necessary representation by the Defendant that PRN were permanently extinguished. The words and actions of the Defendant's officials "on the ground" prior to the purchases of Hedsor Estate, though of very long standing, were not unequivocal and devoid of relevant qualifications. As the owners of Hedsor Estate at all times continued to acknowledge, the NA have continued throughout to perform their statutory functions with respect to Hedsor Water even until today, a role inconsistent with the permanent status as a private channel. (It may be noted that the occasions for exercise of those functions which occurred prior to completion of the History are recorded in the History). The protection afforded to the owners of Hedsor Estate was the product and continuing consequence of the temporary arrangement made for the benefit of Lord Boston years previously which reserved (so far as any reservation was necessary) PRN. 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 could not give rise to an expectation that it would exist for ever. I do not think that Mr Jim Andrews, the lock keeper and the only identified employee of the NA involved prior to 1990, can have had the necessary actual or ostensible authority to promise more if he had authority to promise that. Even if the NA did have power to extinguish PRN, it is scarcely conceivable that any authority could have been vested in the officials on the ground (in effect the lock keepers) to make binding representations or give binding assurances on behalf of the NA to the actual or prospective owners of Hedsor Estate that PRN were permanently extinguished. Leaving those considerations aside, it was not objectively reasonable on the occasion of the purchase of the Hedsor Estate, 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. The History made plain that the issue of PRN over Hedsor Water (to say the least) was highly contentious. On an approach to the NA, in discharge of the obligation to place all cards on the table, no doubt Mr Rowland would and should have disclosed the History. If Mr Rowland had done so, the NA would have undertaken immediately the investigation which Mr Christie was given the occasion to undertake in the year 2000. The only inference that can be drawn from the evidence before me is that the question of the continuing subsistence of PRN was never raised nor investigated by the Claimant's solicitors on the purchase by SCML or Mr Rowland. It is clear that, if the solicitors had been instructed to investigate, Mr and Mrs Rowland would immediately have been disabused of their belief. The basis in law for it (the 1843 Agreement and the saving clauses in the two Acts) was non-existent. The solicitors would have raised the matter directly with the NA and the issue before me would have needed to be resolved and would have been resolved as I have resolved it. There were obvious and inherent risks in the Rowlands proceeding as they did. Their expectation was not a reasonable one. I accordingly hold that there was no legitimate expectation on these grounds also.
73. Even if I am wrong and (leaving aside the issue of ultra vires) assuming that the expectation was legitimate I would hold that in any event the Defendant acted fairly in deciding to resile from any expectation induced. The representations by the NA to the Claimant (if and so far as they purported to give permanent assurance for the future) were the result of a mistake (evidently common to the riparian owners) and the expectation, if given effect to, would gravely prejudice the interests of the public entitled to exercise PRN over Hedsor Water. When deciding to resile, full consideration was given to the Claimant's interest and the impact on the decision on her. The Defendant's balancing exercise was fair and free from objection. The question would arise in such a situation whether the Claimant would be entitled to compensation or other relief. I incline to the view that no compensation or other relief would be called for. There is no evidence that Mr Rowland when he purchased Hedsor Estate overpaid i.e. paid more than the value of Hedsor Estate subject to PRN over Hedsor Water. The only evidence before me is to the effect that the value of Hedsor Estate is greater if free from PRN. There may also be taken into account the failure of Mr Rowland to take elementary precautions to ascertain the true legal position on the purchase of Hedsor Estate, his enjoyment of Hedsor Water throughout his lifetime free from exercise of PRN and the assurance afforded by the NA to the Claimant during her lifetime by the letter dated the 20^th February 2001.

HRA AND CONVENTION

74. The total constraint imposed by the doctrine of ultra vires upon the applicability of the doctrine of legitimate expectation (as I have already said) can be productive of injustice and on this ground has been the subject of powerful academic criticism. The issue before me is whether in a situation such as the present this constraint has been relaxed by the provisions of the Convention incorporated in United Kingdom law by the HRA. Section 2 of the HRA provides that the United Kingdom courts must have regard to decisions of the European Commission on Human Rights ("the Commission") and the European Court on Human Rights ("the Court"). Section 6 of the HRA renders it unlawful for a public authority to act in a way which is incompatible with a Convention right unless as a result of provisions of primary legislation it could not act otherwise, and section 7 allows the victim of an act which is unlawful under section 6 to bring proceedings against the authority. Section 8 enables the court to grant such relief or remedy or make such order within its powers as it considers just and appropriate. Article 1 (of the First Protocol) confers the right to protection of possessions. The issue before me is whether in the light of the jurisprudence of the Commission and the Court an expectation encouraged by a public body, although the produce of an ultra vires promise, can be afforded a measure of protection as a possession within the meaning of Article 1, in particular where it can be regarded as a component of property protected by the Article. If protection can be so afforded and the occasion for injustice thus mitigated, this development of the law is plainly to be welcomed.
75. Whilst formally the Claimant relies on Article 8 as well as Article 1 of the First Protocol1, the Claimant concedes that her case rests on Article 1 and that Article 8 is an adjunct to the Article 1 claim. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. Article 8 of itself cannot confer freedom from PRN if they subsist. For this purpose reliance must be placed on Article 1 which reads as follows:

"Protection of property

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."

76. The core issue raised by the Claimant is whether the expectation of the protection afforded to the value and security of Hedsor Estate (the Claimant's home protected by Article 8), by the extinguishment of PRN is a possession protected by Article 1 (and in particular the third rule) notwithstanding the ultra vires character of the expectation.
77. Article 1 comprises three distinct rules. The first rule (set out in the first sentence of the first paragraph) is of a general nature and enunciates the principle of peaceable enjoyment of property; the second rule (contained in the second sentence of the first paragraph) covers deprivation of possessions and subjects it to certain conditions; the third rule (stated in the second paragraph) recognises that the contracting states are entitled amongst other things to control the use of property in accordance with the general interest. The three rules are not however distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule. The concept of "possessions" has an autonomous meaning independent from the formal classification in domestic law: see Beyeller v. Italy ("Beyeller") Judgment of the Court of the 5^th January 2000 paras 98 and 100. The Strasbourg jurisprudence affords the concept a wide meaning. Guidance on the ambit of the concept in human rights law in a situation analogous to the present and on the relevance of the availability of compensation for interference to be adjudged legitimate and proportional is to be found in the decisions of the Commission and the Court in the case of Pine Valley Developments v. Ireland [1991] 14 EHHR 319 ("Pine Valley"), decisions which section 2 of the HRA requires me to take into account.
78. The relevant facts in that case can be shortly stated. The first applicant purchased a plot of land in 1978 for industrial development relying on an existing grant of outline planning permission for industrial development. In 1981 the first applicant sold the land to the second applicant which was owned by the third applicant. In February 1982 the Irish Supreme Court held that the grant of planning permission was ultra vires and a nullity ab initio since it was contrary to the relevant legislation. Later in 1982 legislation was passed which validated retrospectively grants of planning permission which were invalid on this ground, but excepted from such retrospective validation planning permissions whose invalidity had already been judicially determined and accordingly the planning permission in question. The Court held (agreeing with the Commission): (1) that having purchased the land in reliance on the permission which was duly recorded in the public register kept for the purpose and which they were entitled to assume was correct and could not be re-opened by the planning authority, the applicants had a legitimate expectation of being able to carry out the proposed development and that this had to be regarded, for the purposes of Article 1, as a component part of the property; (2) that the decision of the Irish Supreme Court invalidating the permission on grounds of ultra vires constituted an interference with the right of the second and third applicants to peaceable enjoyment of their possessions within the first part of the first paragraph of Article 1 and an exercise of control over the use of their property within the scope of the second paragraph of Article 1; (3) the first applicant had no claim because he had sold on the property prior to the date of the Court decision and accordingly the interference and exercise of control. The Court went on to hold (disagreeing with the Commission); (4) that the interference was justified, for it was in conformity with planning legislation and, like that legislation, designed to protect the environment. This was a legitimate aim "in accordance with the general interest" for the purposes of the second paragraph of Article 1. Turning to the issue of proportionality the Court said:

"58. The applicants maintained that, in the absence of compensation or retrospective validation of their outline planning permission, the interference complained of could not be described as proportionate to the aim pursued.

59. Although the annulment by the Supreme Court of the planning permission was pronounced in proceedings to which the applicants were party, its consequences were not confined to them, as is evidenced by the fact that legislation(the 1982 Act(was subsequently passed with the intention of validating retrospectively the permissions affected. Indeed, the applicants would have found themselves in the same position if a similar decision had been handed down in a case in which they had not been involved.

The interference was designed and served to ensure that the relevant planning legislation was correctly applied by the Minister for Local Government not simply in the applicants' case but across the board. The decision of the Supreme Court, the result of which was to prevent building in an area zoned for the further development of agriculture so as to preserve a green belt, must be regarded as a proper way(if not the only way(of achieving that aim.

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, Dublin County Council, to any departure from it. This being so, the Court does not consider that the annulment of the permission without any remedial action being taken in their favour can be regarded as a disproportionate measure."

79. The Court thus concluded that there was no violation of Article 1 as regards any of the applicants. The Court however went on to hold (again in agreement with the Commission) that the differentiation between the applicants and other holders of planning permission in the same category as theirs on the basis of their prior unsuccessful application to the Irish Court constituted a violation of Article 14 taken together with Article 1 as regards the second and third applicants.
80. 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. Applying these principles, the fact that it was ultra vires for the NA to extinguish PRN over Hedsor Water should not debar an expectation of Mr and Mrs Rowland relating to the subsistence of PRN over Hedsor Water from constituting a possession entitled to protection under Article 1, though the relief that may be available is restricted in the manner which I have indicated.
81. But for the same reasons set out in paragraph 72 above for which I have held that the expectation of Mr and Mrs Rowland (even if not illegitimised by the doctrine of ultra vires) would not entitle the Claimant to relief under English domestic law, I do not think that the expectation constitutes a possession which is entitled to protection and gives rise to any claim to relief under the HRA and Convention law. The contrast between the circumstances giving rise to the expectation and the reasonableness of the expectation in Pine Valley and this case requires no elaboration.
82. If contrary to my view the expectation in this case did constitute a possession, the interference (a) was plainly lawful i.e. in accordance with English law; (b) pursued a legitimate aim i.e. safeguarding the legal rights of the public over Hedsor Water, the beneficiaries of the ultra vires rule; and (c) was proportionate (i.e. achieved a fair balance between the interests of the community and the interests of the Claimant). In determining whether compensation would be called for in those circumstances regard would be necessary of (amongst other matters) the conduct of the parties and the risk involved in proceedings with purchase without further inquiries and investigation (see Pine Valley and Beyeller para 164). I would not award any compensation. My reasons are the same as those for not awarding compensation under the doctrine of legitimate expectation. They are set out in paragraph 73 above.

CONCLUSION

83. Accordingly the Claimant fails on both bases of claim and the Defendant is entitled to the declarations which it seeks.
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