Chancel Repair Liability: Understanding the Legal Obligations and Implications for PCCs, Lecture notes of Law

Download Chancel Repair Liability: Understanding the Legal Obligations and Implications for PCCs and more Lecture notes Law in PDF only on Docsity! THE CONSEQUENCES OF ASTON CANTLOW EDWARD NUGEE QC Barrister The two main aspects of the Aston Cantlow case1 have been the subject of considerable academic interest2. The first concerns the status of a parochial church council (‘PCC’)for the purposes of the Human Rights Act 1998, and by implication the status of many other church bodies under that Act. The second concerns the law relating to the liability of certain individuals and corporate bodies to repair the chancel of the parish church. As is well known to readers of this Journal, the House of Lords, reversing the decision of the Court of Appeal, held that a PCC, in enforcing the liability of a lay rector to carry out or pay the cost of repairs to the chancel of the parish church, is not discharging the functions of a “public authority” within the meaning of section 6 of the Human Rights Act 1998, and has no obligation to act compatibly with the rights set out in the European Convention on Human Rights to which the Act gives effect; and that the respondents, Mr and Mrs Wallbank, were liable by virtue of their ownership of rectorial land to pay for the repairs to the chancel of Aston Cantlow parish church. The decision gave rise to letters in the press complaining that it was unfair, but the liability had been clear on the face of the title deeds of the Wallbanks’ land since at least 1875, and Mrs Wallbank’s parents (who gave the land to her) may well have paid a reduced price because of it. The speeches of all five members of the Appellate Committee contain a valuable discussion of the character of the Church of England, which is well summarised in the headnote in the WLR: Although the Church of England, as the established church, has special links with central government and performs certain public functions, it is essentially a religious organisation and not a governmental organisation. PCCs are part of the 1 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, (2001)81 P & CR 14, [2000] 2 EGLR 149 (Ferris J); [2002] Ch 51, [2001] 3 All ER 393 (CA); [2003] 3 WLR 283, [2003] 3 All ER 1213 (HL). 2 See the Editor’s Note at (2004) 7 Ecc LJ 246 and the articles there referred to. See also Peter Cane, “Church, State and Human Rights: are Parish Councils Public Authorities” (2004), 120 LQR 41. means whereby the Church promotes its religious mission and discharges financial responsibilities in respect of parish churches, and the functions of PCCs are primarily concerned with pastoral and administrative matters within the parish and are not wholly of a public nature, and therefore they are not core public authorities within s.6(1); and (Lord Scott dissenting) the fact that the public had certain rights in relation to their parish church is not sufficient to characterise the actions of a PCC in maintaining the fabric of the parish church as being of a public nature; so that when the plaintiff took steps to enforce the defendants’ liability for the repair of the chancel, it was not performing a function of a public nature which rendered it a hybrid public authority under s.6(3)(b). The defendants’ chancel repair liability is a private law liability arising out of the ownership of land, and the enforcement of that liability by the plaintiffs is an act of a private nature and therefore excluded by s.6(5) from coming within the ambit of s.6(3)(b). As Lord Hope said3, ‘[The PCC] is seeking to enforce a civil debt. The function which it is performing has nothing to do with the responsibilities which are owed to the public by the State’. Lord Hope gave the fullest account of the legal position of the Church of England. Having pointed out that the implication of the Court of Appeal’s view that the PCC was a public authority was that other bodies such as diocesan and deanery synods and the General Synod fell into the same category, he said4: In my opinion however the legal framework of the Church of England as a church by law established does not lead to this conclusion. The Church of England as a whole has no legal status or personality5. There is no Act of Parliament that purports to establish it as the Church of England: Sir Lewis Dibdin, Establishment in England: Essays on Church and State (1932), p.111. What establishment in law means is that the state has incorporated its law into the law of the realm as a branch of its general law. In Marshall v Graham6 Phillimore J said: “A Church which is established is not thereby made a department of the state. The process of establishment means that the state has accepted the Church as the religious body in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to its decrees, if rendered under certain legal conditions, certain civil sanctions.” The Church of England is identified with the state in other ways, the monarch being head of each: see Doe, The Legal Framework of the Church of England 3 Para.64. 4 Paras.60-61. 5 This rather nebulous character of the Church of England was emphasised by Gerald Ellison, then recently retired as Bishop of London, in an address which he gave to the Partners in Mission Consultation at Hengrave Hall in May 1982: “The Church of England as such has never trained a priest, has never sent a missionary, has never opened a hospital.” Lord Rodger described the juridical nature of the Church as “notoriously somewhat amorphous” (para.154). 6 [1907] 2 KB 112, 126 PCC has not made a claim for that period does not lead to the conclusion that its right has been extinguished under the Limitation Act 1980. Parliament has therefore fallen back on registration, which was the alternative considered by the Law Commission (though not in the form now adopted), and reckoned by them to be very much a second best solution to the problem of the conveyancing trap. The Land Registration Act 1925 provided that ‘Liability to repair the chancel of any church’ was an overriding interest17. At the time when the Land Registration Act 2002 was enacted the decision of the Court of Appeal in Aston Cantlow held the field, and no corresponding provision was thought to be necessary in the new Act. After the Court of Appeal’s decision was reversed, the Land Registration Act 2002 (Transitional Provisions) (No.2) Order 200318 was made, inserting a new paragraph 16 into each of Schedule 1 (unregistered interests which override first registration) and Schedule 3 (unregistered interests which override registered dispositions) to the Act, under which chancel repair liability was to continue to be an overriding interest for 10 years from the coming into force of the Act on 13 October 2003. S.117(2) provides that an application may be made before the end of the 10-year period, without a fee being chargeable, for registration of a caution against first registration of unregistered land, or the entry in the register of a notice in the case of registered land, in respect of the liability. The caution or notice will then give priority to the PCC over the interest of a first registered proprietor or anyone taking from him, or anyone taking from a registered proprietor19. The method of registration which has been adopted, however, means that if the liability is not registered within the 10-year period, it is still enforceable after the expiration of the period against the owner of rectorial land until he disposes of his land; for it is only a successor in title who takes the land freed from the liability. The failure to register, therefore, does not lead to the immediate extinction of the liability at the end of 10 years; but it does eliminate the conveyancing trap for the benefit of purchasers. There is thus a period of some 9½ years during which PCCs can and should consider whether they have the benefit of chancel repair liability and, if they have, to effect registration of a 16 See ‘Lay Rectors and Chancel Repairs’ (1984), 100 LQR 181,184. 17 S.70(1)(c). 18 SI 2003/2431. 19 See ss.11(4)(a) and 12(4)(b) for first registration, and ss.29(2)(a)(i) and 30(2)(a)(i) for registered dispositions of estates and charges. caution or notice to protect their interests in the event of the rectorial land changing hands. As trustees the PCC have a duty to protect the valuable rights which the benefit of such liability confers on them, whether or not they have exercised them in the past. A number of questions arise: 1. How can a PCC ascertain whether it has the benefit of chancel repair liability and what land carries with its ownership the liability? The Law Commission’s Working Paper No.86 sets out five classes of persons who may be liable20: (1) The Church Commissioners, ecclesiastical corporations such as Deans and Chapters of Cathedrals, Oxford, Cambridge and Durham Universities and their constituent Colleges, Winchester College and Eton College21. Members of this select group may be liable simply by virtue of having owned relevant tithe rentcharges immediately before the extinction of such charges by the Tithe Act 1936, and in this case there is no land against which to register a caution or notice. They may also be liable as landowners under any of the following heads. (2) Landowners whose land was once included in an award under an Enclosure Act to a lay rector (or tithe owner) in lieu of tithe. This is probably the largest class of persons liable22, and may give rise to the conveyancing trap referred to above; and it is also the main class in which the PCC may have to consider whether the liability exists. In some cases, in which the liability has been regularly enforced, the answer to this may be clear, at least as regards some identifiable land in the parish. In others it may involve some research. The Public Record Office publishes a useful leaflet on Enclosure Awards23, and recommends W.E.Tate's Domesday of English Enclosure Acts and Awards (1978) as an essential guide to the present location (many are held only locally) and date of English enclosure awards and maps. The equivalent guide for Wales is J Chapman's Guide to 20 Para.2.29. 21 The Law Commission were told by the Church Commissioners that they themselves, under one head or other, are liable, solely or partly, for the repair of some 800 chancels; that Cathedral authorities have liabilities in respect of some 200; and that educational foundations have liabilities in respect of a further 200: Working Paper 86 para.2.30. 22 It included the Wallbanks in Aston Cantlow, and both parties in Chivers & Sons Ltd v Air Ministry, [1955] Ch 585; [1955] 2 All ER 607. 23 Domestic Records Information 86, available at http://catalogue.pro.gov.uk/Leaflets/ri2193.htm. In many Parliamentary Enclosures in Wales (1992). Both the latter two books are available on open access at the National Archives, Kew; and a number of law libraries contain an indexed series of local and personal Acts in which Enclosure Acts are to be found. Tate estimates that enclosure awards cover about half of English parishes; and there are said to be about 2200 Enclosure Acts affecting individual parishes, though not all of them will necessarily have allotted land to the lay rector in lieu of tithe, the ownership of which carries with it the chancel repair liability. (3) Landowners in whose land the right to tithe or tithe rentcharge has merged, either under the Tithe Act 1936 or under an earlier Tithe Act. These will be landowners who were entitled to tithe and whose right to tithe was not extinguished by an Enclosure Act or Award. The Tithe Redemption Commission appointed to put the 1936 Act into effect was required to compile, in relation to every chancel repairable by tithe rentcharge owners, a document known as the Record of Ascertainments. The proportionate liability for repairs to the chancel of ancient parish churches which was to be borne by the owners of tithe rentcharges was ascertained by the Tithe Redemption Commission and recorded in the volumes in this series. The apportionment of liability made in this way was, however, only legally effective as between the owners of land at the date it was made, and on a subsequent division of the land no further apportionment binding on the PCC would normally have taken place. The Public Record Office has again published a useful leaflet24 on the subject, and holds 108 volumes of Records of Ascertainment at Kew, filed alphabetically by county and parish25. (4) Landowners whose land was originally part of the glebe of a parish but fell into lay hands on the dissolution of the monasteries. The Law Commission say that the chances of a piece of land being identifiable today as impropriated glebe are fairly remote, unless it is still in the hands of the original lay impropriator (such as an Oxford College) and the details of its acquisition are known. They are not aware of any litigated case in which the liability for chancel repairs has been based directly on the ownership of glebe, but there may well be acceptance of liability wholly or partly on that basis26. It is not cases the original Enclosure Awards may be found in the relevant county record office. 24 Legal Records Information Leaflet 33, available at http://catalogue.pro.gov.uk/Leaflets/ri2251.htm 25 Series IR104. For further details click on IR104 in the internet version of Leaflet 33, note 24 above. 26 Working Paper 86 para.2.20; but it appears that the original rectorial property replaced by the lands in question in Chivers & Sons Ltd v Air Ministry, n.22 above, had included glebe; and in Aston Cantlow it was not clear whether the the Wallbanks’ land, which was known as Glebe Farm, was allotted by the Enclosure Award year period? It is suggested that, at the least, inquiries should be made to ascertain (a) whether there is an Enclosure Act and Award affecting the parish, and if so whether the award allots identifiable land to the lay rector in lieu of his right to tithe or to glebe land; and (b) whether there is a Record of Ascertainments affecting the parish, which apportions the chancel repair liability among identifiable land. The duty of the PCC is then prima facie to apply for the registration of a caution against first registration of each part of the rectorial land the title to which is not registered, and the entry of a notice against the register of the title to each part of the rectorial land the title to which is registered. As is mentioned above, no fee is chargeable by HM Land Registry for this; and in many parishes there will be someone with a sufficient interest in the history of the parish to carry out the necessary research. Notice of the PCC’s application will be given to the present owner of the land affected, and it may then be necessary to determine whether there is sufficient evidence that the liability affects the land, and what other landowners are subject to the liability. Section 52 of the Ecclesiastical Dilapidations Measure 1923 provides a procedure whereby lay rectors liable for chancel repairs can compound their liability and thereby obtain a release from it. The procedure requires there to be consultation between the lay rector and the PCC, the obtaining of approval from the Diocesan Dilapidations Board, and payment to the Diocesan Board of Finance of such a sum as having regard to the condition of the chancel the Board may estimate as reasonably sufficient to provide for the cost of future repairs and also to provide a capital sum the income of which will be sufficient to insure the chancel for a sum adequate to reinstate the same in the event of its being destroyed by fire. The sum paid is held on behalf of the PCC, the income being applicable (after consultation with the PCC) in keeping the chancel insured against loss or damage by fire, in the payment of charges lawfully incurred in the maintenance and repair of the Church of which the chancel forms part, or of the churchyard belonging to such church, and in accumulating the residue so as to form a fund for the extraordinary improvement or enlargement of the church or churchyard (see subsection (5)). The procedure is somewhat cumbersome and, in view of the difficulty in determining the appropriate compensation and, in the case of any lay rector liable for the whole cost of repair, the large likely amount of it, is believed to be rarely used - the Law Commission says that to all intents and purposes it is a dead letter33. However if 33 Working Paper 86 para.3.15. the alternative for the lay rector is an adverse entry on his title, he may find compounding for the liability is a more attractive alternative in future. Since each lay rector is severally liable for the whole of the cost of repairs, it will be almost essential to involve all those who own land to which the liability attaches in the procedure for compounding the liability. As in other cases in which registration or some comparable procedure is made necessary if one is not to lose a well-established right, such as a right to water under the Water Resources Act 1963 or a right of common under the Commons Registration Act 1965, the requirement to register chancel repair liability is likely to give rise to the possibility of disputes where none existed previously, which is a matter for regret; but, unless vigorous and prompt steps are taken by PCCs to ascertain and protect the rights which the law gives them, there is a danger that a potentially valuable resource will be lost to the Church for ever.