Rowland v Environment Agency

Facts

The claimant owned property adjoining Hedsor Water, a stretch of the River Thames. For many years the authorities responsible for the river had treated Hedsor Water as private and not subject to the public right of navigation, and the claimant bought and enjoyed her property on that footing. The Environment Agency later took the position that a public right of navigation existed over Hedsor Water, which had never been extinguished by statute.

History

Lindsay J held that the public right of navigation subsisted and dismissed the claim; the claimant appealed.

Issue

Whether the public right of navigation over Hedsor Water had been extinguished; whether the claimant could rely on a legitimate expectation, created by the conduct of the authorities, that the water would be treated as private; and whether her expectation was a possession protected by Article 1 of the First Protocol ECHR, such that the Agency had to justify interfering with it.

Held

Appeal dismissed. The public right of navigation subsisted. The authorities had no power to extinguish it, so their representations could not give rise to an enforceable substantive legitimate expectation that it would not be asserted. Any interference with a possession under Article 1 of the First Protocol was justified, the Agency having acted proportionately.

Ratio

• A public authority cannot by representation or conduct confer on an individual a substantive legitimate expectation that it will act beyond its powers, so a representation that a public right does not exist, made by a body with no power to extinguish that right, cannot be enforced against the public.

The judgments

Key reasoning

• The public right of navigation over the Thames is ancient and can be extinguished only by Act of Parliament; no statute had removed it over Hedsor Water.
• To give effect to a legitimate expectation would require the authority to act in breach of the law and would deprive the public of a right the authority could not itself remove, which domestic law did not permit.
• Article 1 of the First Protocol did not compel a different result because, even if the expectation was a possession, the interference pursued the public interest in upholding a public right and was proportionate.

Obiter

• Mance LJ suggested that the domestic rule against enforcing ultra vires expectations might need revisiting in light of Convention law and comparative experience, so that a balance between legality and the protection of the individual could be struck.

Where it fits in the module

Under Ultra vires representations, Rowland is the central case on the conflict between the principle of legality and the protection of reliance. It should be read with the older estoppel cases such as Western Fish Products v Penwith DC and with R v East Sussex CC, ex p Reprotech (2002) on the abandonment of estoppel in public law, and compared with the more generous approach in some civil law systems that Mance LJ referred to. The Article 1 of the First Protocol analysis shows a possible route by which Convention law tempers the strict domestic rule.

Criticisms

• An absolute bar on enforcing ultra vires expectations leaves an innocent individual to bear the whole cost of the authority's error, however strong her reliance.
• The case shows the incoherence of a system in which Article 1 of the First Protocol requires a proportionality balance that domestic legitimate expectation doctrine refuses to perform.
• Where the public interest in the unlawfully surrendered right is slight, insisting on legality may achieve little at great individual cost.
• Conversely, any relaxation would let public authorities alter public rights by mistake, undermining parliamentary control, which is the strongest argument for the court's position.