seeking the principle: chancels, choices and human rights

Seeking the principle: chancels, choices and human rights

Ian Dawson Barrister, Lecturer in Law, School of Law, University of Newcastle upon Tyne

Alison Dunn Lecturer in Law, School of Law, University of Newcastle upon Tyne

Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article I of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.

INTRODUCTION

Training a modern spotlight on ancient rights often evokes wonder in the observer. This reaction is commonly directed at the endurance of the ancient right in the context of the present-day legal framework, a framework that is quite often divorced from that in which the right was first conceived. Benefit may accrue from the consignment to legal history of these ancient rights where they cannot withstand the scrutiny of the modem spotlight. The eradication of legal oddities is healthy for the continued development of a flexible and responsive legal system, provided, and it is an important proviso, that the eradication proceeds on a reasoned basis.

Land law provides examples of ancient rights, some of which have enduring utility, but others of which do not.' Sometimes the evolution of different approaches to such rights, and, in particular, their creation and protection, has led to legal tension. One clear example of this highlighted recently by the Law Commission is the operation of adverse possession in registered land, where a conflict exists between the notion of possession (to found the right) and

1. Examples of the former include rights of way and of drainage, of the latter advowsons (the right of presentation to a living) and (at least some) franchises (eg of long discontinued ferries).

Seeking the principle: chancels, choices and human rights 239

registration (to protect the right-holder and the purchaser).2 Another is the precise place of a doctrine of negative easements alongside an apparently separate doctrine of restrictive c0venants.j

The uncertainty attendant upon the endurance of an ancient right is not limited to those aspects of property law considered mainstream, but encroaches upon less familiar territory. One such area is that of liability for chancel repairs. This area of property law has recently been analysed in the context of its compatibility with human rights under the European Convention on Human Rights (ECHR). Aside from the human rights issue, this area also raises a number of points, including the juridical basis of liability, its challenge to the fundamental philosophy of contemporary property law, and the failure of property law to be dynamic in its approach to rationalising property rights where original reasons for imposition of liability may no longer hold good. Hence chancel liability is an area ripe for reform, as indeed its major beneficiary, the Church of England, has formally recognised in lending the Church’s support to its phased ab~l i t ion.~ A court faced with such an anachronistic right having potential for causing harm5 may be tempted to fasten on the general principles readily at hand in the Human Rights Act 1998 (HRA 1998). Indeed, that was a purpose of Parliament in introducing that legislation. But its principles are large and, like public policy, may easily become unruly.6

This paper will first (briefly) examine the law as is stands on liability for chancel repair. It will then turn to an analysis of the Court of Appeal decision in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank.’ This case questioned the application of liability for chancel repair in light of HRA 1998. The Court of Appeal found that the liability infringed art 1 of the First Protocol of the ECHR. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded and does not bear scrutiny in its modem context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.

2. See Law Com no 254, Land Registration for the Twenty-First Century (1998) paras 2.44,lO. 19, in which the Law Commission, after having identified the difficulties of operating s 75 of the Land Registration Act 1925 in the context of adverse possession, recommended that the law on adverse possession be remodelled to more properly represent the principles of the land registration system. These changes have been incorporated into the Land Registration Act 2002. 3. See I Dawson and A Dunn ‘Negative easements - a crumb of analysis’ (1998)

4. See Law Commission N o 152 Property Law: Liabilityfor Chancel Repairs (1985). 5. Such potential for harm arising for example in the context of chancel liability, because the person liable may be unaware on purchasing the land giving rise to the (personal) liability of the owner of the liability: such liability, in unregistered conveyancing, may not be abstracted, and, in registered conveyancing, may be an ovemding interest under the Land Registration Act 1925, s 70(l)(c). 6. Public policy ‘is a very unruly horse and when once you get astride of it you never know where it will carry you. It may lead you from the sound law’, per Burrough J in Richardson v Mellish (1824) 2 Bing 229 at 252. 7.

18 LS 510-533.

[2001] EWCA Civ 713, [2001] 3 All ER 393.

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LIABILITY FOR CHANCEL REPAIR

Liability for chancel repair concerns the obligation that is placed upon a landowner to bear the cost of repairing the chancel of certain pre-reformation Church of England parish churches in England and Wales.8 It has been estimated that approximately one-third of Church of England parish churches benefit from the chancel repair obligation.' This obligation was originally subject to the jurisdiction of the Ecclesiastical court but, since the Chancel Repairs Act 1932,'O is now enforced through the county court by a parish's Parochial Church Council.' I The liability covers repair, but not improvements or the provision of ornamentsI2 or repair required as a result of war damage.I7

Liability to repair the chancel of a parish church is one of those ancient property rights the origins of which are indeterminate, but which most probably arose from c u ~ t o m . ' ~ A scrutiny into the history of the repairing obligation was undertaken by Lord Hanworth MR in Wickhambrook Parochial Church Council v Cro~j$ord,'~ where he identified a number of cases in which it was found that custom had decreed who held the obligation to repair.Ih In general, custom has dictated that the repairing obligation fell upon the rector of the parish church, and also upon those in receipt of profits from rectorial tithes of the parish.17 The liability of those in receipt of rectorial tithes was swept away along with the reform of the tithing system in the early 1900s, but liability subsists in respect of certain rectorial land in the hands of a rector. Since the Ecclesiastical Dilapidations Measure 1923, rectorial lands in the hands of spiritual rectors have been free of liability for chancel

8. For a fuller examination of the history and development of liability for chancel repair, see Law Commission Working Paper No 86 Transfer of Land: Liability for Chancel Repairs ( 1983); J H Baker 'Lay Rectors and Chancel Repairs' ( 1 984) 100 LQR 18 1 - 185; and Law Commission No 152, n 4 above. 9. Which is approximately 3,000 churches: see Law Commission Working Paper No 86, n 8 above, para 1.3. 10. This Act was merely procedural and did not affect the nature of the right itself. 11. See the Chancel Repairs Act 1932 for general enforcement provisions and for procedure. 12. See Wise v Metcalf( 1829) 10 B & C 299. 13. War Damage Act 1943, s 119. 14. Law Commission Working Paper No 86, n 8 above, paras 2.1, 2.3. 15. [ 19351 2 KB 417 at 432. This case established that the liability of a lay impropriator was personal and several and unlimited. This was a case involving liability arising out of a rentcharge. The value of rentcharge was E120, cost of repair was just over &123. For comment see C V Davidge 'Chancel Repairs' (1935) 51 LQR 583-585. 16. In particular, Lord Hanworth noted Whinfield v Warkins 2 Phillim 1, Morley v,!,eacrofr [1896] P 92; Pense v Prouse 1 Ld Raym 59, Ball v Cross 1 Salk 164, Grifin v Dighton 5 B&S 93, and Smallbones v Edney LR 3 PC 444. In Pense v Prouse Sir John Holt CJ made the point that: 'by the canon law the parson ought to repair the whole; but by the custom of England, the parson shall repair the chancel, and the parishioners the nave of the church.' See also Coke's Inst, Pt 11, vol ii, p 489. 17. Upon occasion the custom dictated that the repairing obligation fell upon the parishioners rather than the rector, see Williams v Bond (1690) 2 Ventris 238; Tindal CJ in Veley v Burder (1 840) 12 Ad & El 265 at 300ff; and Sir John Nicholl in Bishop of Ely v Gibbons (1 833) 4 Hagg Ecc 156 at 162 where liability for chancel repairs transferred from the rector to the parishioners, but this appears to have been an exception to general custom.


repair.I8 However, where rectorial lands have been transferred to a lay owner, the liability will vest in the laity, as lay rec tor~ . ’~ Thus lay persons to whom former rectorial lands are conveyed will face the question of whether they are to be bound by the obligation to repair the chancel of the parish church.

Two issues in particular arise with regard to the existence and endurance of this property obligation, both of which have been the subject of inquiry by the Law Commission.2o The first issue is broadly theoretical and relates both to the rationale for the obligation, and whether an obligation can subsist even where its rationale is no longer expedient. The second issue is more operational and concerns the discoverability and binding effect of the obligation upon successive lay owners of rectorial land.

Rationale At its inception, the rationale for the imposition of the liability to repair the chancel of a parish church rested upon the notion of reciprocal benefit and burden. The theoretical basis, in the present context, of that notion is that since a rector was entitled to take his living from the profits of his benefice he would in return become subject to the burden of repair of the chancel of the church. Wynn-Parry J cast the burden upon broad grounds of reciprocity with the parish in Chivers & Sons Ltd v Air Ministry, where he stated that:21

‘It has long been established that the liability of an impropriator of a lay rectory to maintain the chancel is rested on the maxim that he who has the profits of the benefice should bear that burden. This burden is imposed for the benefit of the parishioners who by the custom of England have the liability to repair the nave but the corresponding right to require the rector to repair the chancel, and the rector, in turn, has the rectorial property out of the profits of which he is considered to have the means to do this.’

Liability for the repair of the church chancel was by no means the only obligation placed upon a rector in furtherance of the reciprocal benefit and burden principle. In similar fashion Lanchbury v Bode22 highlights the custom of the parson to bear the liability of providing a bull and boar for common use of the parishioners. Again, this obligation was intrinsically linked to receipt of benefits of rectorial land, particularly receipt of tithes, and so bound lay rectors as well as spiritual rectors. As Kekewich J noted in Lanchbury, the obligation ‘is imposed upon the parson of the parish as owner of the great tithes, and it follows that if the great tithes were assigned to some other person or corporation, the liability would have gone as an incident to those tithes’.23

18. Sees 52. 19. See Chancel Repairs Act 1932, and J Baker ‘Lay Rectors and Chancel Repairs’ (1984) 100 LQR 18 1, 183. In the words of Viscount Simon LC, ‘a lay impropriator in its ordinary sense is a lay person or corporation who is in possession of the revenues of a living’: Representative Body of the Church in Wales v Tithe Redemption Commission [ 194.41 AC 228 at 241. 20. Law Commission Working Paper No 86, n 8 above. 21. [ 19551 1 Ch 585 at 593. See also the argument of counsel Mr Wigglesworth at 591. 22. [I8981 2 Ch 120. 23. [I8981 2Ch 120at 124-125.

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For spiritual rectors the benefit of becoming the incumbent of rectorial land was clear, in that their ‘living’, the benefice, offset the burden of repair. But as rectorial lands have fallen into the hands of lay rectors,24 the benefit received, as opposed to the burden imposed, is harder to determine. Aside from the right to a seat in the chancel,’s the lay rector receives no benefit from tithes, and neither has the control of the chancel nor an exclusive right to it. For example, in GrifJin u Dighton26 Cockburn CJ rejected the entitlement of a lay rector to broad grounds of possession and control, finding the proposition that a rector had absolute control over the chancel and could permit others to use it only in so far as it was necessary for divine service ‘untenable’. Sir John Nicholl had earlier commented in Rich u BushnelP’ that the use of the chancel rested with the Church’s parishioners irrespective that the burden of the repair fell upon the rector. This conclusion is predicated on the concept that each Church community has claims to the Church rites and so to church property. Similarly, Cockburn CJ in GrifJin was of the view that?

‘when it is borne in mind that churches in their origin were dedicated by those who erected them and gave the sites on which they were built for the purposes of religion and the worship of God, it would obviously be inconsistent with the object for which they were established to hold that in the case of a lay impropriation the right of possession followed the freehold, which in contemplation of law is in the rector.’

Given that the encumbrance lacks reciprocal advantage, the Law Commission and subsequent commentators have questioned the imposition of liability for chancel repair on lay rectors in modem day circumstances where the benefit of owning rectorial lands” is de mini mi^.^' Their concern is easily appreciated,

24. Being a lay rector carries no duties akin to those of the spiritual rector: see generally M Hill Ecclesiasticcd Law (Oxford: Oxford University Press, 2nd edn, 2001). 25. Discussed in Stileman-Gibbard v Wilkinson [ 18971 1 QB 749 at 761-762, citing Spry v Flood 2 Curt 253 and Cli’oord v Wicks 1 B & A 498. The right to the chief seat in the chancel appears to be able to be prescribed for: see Hall v Ellis Noy 133. 26. (1864) 5 B & S 93. The facts of this case were that the door to the chancel was kept locked, the only key holder being the lay rector. The lay rector refused to let the vicar have access to the chancel (and hence to the rest of the church) except in the times of divine worship. 27. (1833) 4 Hagg Ecc 164 at 170, and cited in GrifJin v Dighfon ( 1864) 5 B 8~ S 93 at 107. See also Jarratr v Sreele (1820) 3 Phillim 167. 28. (1 864) 5 B & S 93 at 104. See also 105- 106. 29. By ‘rectorial lands’ is meant those land which originally were vested in the spiritual rector, and would comprise those lands which made up the living of the spiritual rector. 30. This anomalous feature of the liability was highlighted by the Law Commission in their Working Paper on Chancel Repair, above n 8. They stated, at para 5.6: ‘So far as we are aware, nowhere else in the law is there to be found attached to the ownership of land a positive liability to do (or pay for) work on other land, that work being in no way for the benefit also of the land burdened, or of its owner.’ There are examples of positive obligations which may not be of benefit to the person liable. Eg the (spurious as it is sometimes characterised) easement of fencing. Here the servient tenement owner may not be concerned to keep out the neighbour’s animals, as where the servient tenement is unused. And of course environmental legislation, such as Listed Building status does impose financial obligations to preserve property in a form not necessarily of benefit to the landowner.


particularly given the dearth of similar instances in land law where burdens are placed on landowners in the form of monetary liability, in situations where reciprocal benefit is absent. Even statutory requirements to maintain listed buildings provide an intrinsic link between the person fixed with liability and the land benefiting from the obligation.

Indeed, contemporary examples of imposing obligations upon landowners under the rationale of a reciprocal benefit and burden principle, whilst not unknown, are nevertheless rare. Moreover, where they do exist, the presence of a discernible benefit is a central criterion. One primary example lies in the area of covenants and is evidenced by Halsall v B r i ~ e l l , ~ ‘ in which Upjohn J confirmed that ‘it is ancient law that a man cannot take a benefit under a deed without subscribing to the obligations thereunder’. This Chancery Division case concerned the running of a positive covenant for the upkeep and maintenance of a road, seawall and sewers. Irrespective of the general principle that positive covenants do not run with the land,32 the covenant in question was held to bind successive landowners on the grounds of reciprocal benefit and burden to the landowner. The ancient law to which Upjohn J referred was identified by Lord Cozens-Hardy MR during counsel’s submissions in Ellisfon v ReacheP’ as laid down in Co Litt that ‘a man who takes the benefit of a deed is bound by a condition contained in it, though he does not execute it’.”

More recent cases in this area have emphasised the centrality of the benefit to be received since, as Upjohn J identified in Halsall v Brizell, a landowner will be under no obligation to surrender to a burden if the reciprocal benefit is not also taken up.35 Indeed, courts are increasingly chary of allowing this doctrine to extend beyond those cases in which there is both a ‘real and substantial’ benefit,36 and where that benefit is intrinsically linked to the burden seeking to be enforced. Lord Templeman in Rhone v Sfephen~,~’ for example, was most emphatic that rather than having a ‘pure principle of benefit and burden’ as identified in earlier cases,38 the doctrine was one of intrinsic reciprocity. Thus

Gasholders may provide one illustration where the landowner may wish to demolish the redundant item and replace it with commercially valuable buildings. Such an obligation can be imposed without prior notice (see eg Amalgamated Investment & Property Co Ltd v John Walker & Son Ltd [1977] 1 WLR 164, where the building was listed after contract and before completion, which afforded no ground for avoiding the contract). In economic terms there may be little difference between the obligation to spend f95,000 on a nearby church which one does not attend, and a similar amount on maintaining a building on one’s own land which one would prefer to demolish and for which one has no use. It is not obvious that there is a difference in principle. 31. [I9571 Ch 169 at 182. 32. See Austerberry v Oldham Corporation (1 885) 29 Ch D 750; Rhone v Stephens (1993) 67 P & CR 9; Tulk v Moxhay (1848) 2 Ph 774. K Gray provides a good overview of the discussion in this area in Elements of Land Law (London: Butterworths, 3rd edn, 2001).

33. I19081 2 Ch 665 at 669. 34. Co Litt 230b. 35. See Upjohn J in Halsall v Brizell[1957] Ch 169 at 182. 36. Per Megany V-C in Tito v Waddell (No 2 ) [1977] Ch 106 at 305. 37. [ 19941 2 AC 310 at 322, applied by the Court of Appeal in Thamesmead Town Ltd v Allorey (2000) 79 P & CR 557. 38. Most particularly by Megany V-C in Tito v Waddell (No 2 ) [ 19771 Ch 106.

pp 1157-1159.

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the acceptance of any benefit did not open up liability to carry each and every burden. As Lord Templeman noted:’’

‘It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantor’s successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right.’

These more prevalent examples reveal that where burdens are placed upon landowners, a mutual benefit is essential. Indeed, the fact that the imposition of a burden is kept on a tight rein signifies a lack of willingness in modern land law to impose monetary obligations that are non-justifiable. It is hard, then, to see what justification there is for imposing the chancel liability obligation today, other than upon the now obsolete notion of reciprocal benefit. Where a rationale is no longer expedient it is anomalous that the right endures.

Discoverability

The second issue arising out of the endurance of the chancel repair liability compounds the first, and concerns the discoverability of the ~bligation.~” Parish records are often incomplete, and no central records are kept specifying unequivocally which land bears liability. Nevertheless, as noted in Hauxton Parochial Church Council v Stevens,4’ a purchaser will be bound by the liability regardless of whether he has notice of In registered land, for example, the liability will bind a purchaser under the ‘cavernous crack’ in the mirror principle4’ represented by ovemding interests under s 70( I)(c) of the Land Registration Act 1925. Furthermore, not only does the liability remain good against a bona fide purchaser without notice, but once imposed the liability for chancel repair is both personal and unlimited, and so can be wholly disproportionate to the value of the land. This point was underlined by Lord Hanworth in Wickhambrook Parochial Church Council v Croxford.44 One consolation is that chancel repair liability is several, and so a landowner fixed with an obligation to repair could seek contribution from other owners of the rectorial land providing, of course, the land in question has been divided and has more than one owner?

39. [1994] 2 AC 310. 40. As was stated in the Law Commission Working Paper No 86, n 8 above, para 3.1: ‘While it is true that much of the law is anachronistic, and capricious in its modem application, yet it is only in connection with dealings with land that it appears to create difficulty and injustice.’ 41. [1929] P 240, particularly at 243-244, where Chancellor Macmorran reviewed the authorities of Sergeant Davies’ Case 2 Rolle 2 1 1 ; Walwyn v Awberty 2 Mod 254; and Smallbones v Edney ( 1870) LR 3 PC 444. 42. Because the obligation arises at law, and binds everyone as do other legal rights. 43. As first coined by D J Hayton Registered Land (London: Sweet & Maxwell, 1973) p 88. 44. [1935] 2 KB 417 at 437. 45. See comments of Wynn-Parry J in Chivers [1955] 1 Ch 585 at 594, applying Wickhambrook Parochial Church Council v Croxford [ 19351 2 KB 41 7. It is not entirely clear on what basis contributions would be quantified.


The lack of certainty involved in the discoverability of this encumbrance has led to much concern.46 The existence and enforcement of the liability for chancel repair is incongruous in a conveyancing system predicated on certainty, transparency and above all, a balance of protections. Described as capricious and anachroni~tic,~’ and as an ‘unsightly blot on the history of English jurisprudence’,“’ calls for reform have not been lacking. In 1985 the Law Commission outlined the extent of the conveyancing problems that the liability for chancel repair posed, and proposed that liability be subject to a ‘run out’ period before eventual abolition.49 The Law Commission’s proposals remain unimplemented,sO even though they champion wider moves within the legislature to strengthen the land registration ~ys tem.~’

Given the question marks raised over rationale and enforceability, there is a clear case for the law in relation to chancel repair liability to be reformed, if not abolished entirely. Further to the Law Commission’s recommendations, Parliament has not been quick to act. Judicial intervention likewise has not been forthcoming. Thus is due in no small part to the fact that few cases have actually reached the courts in this area. The advent of the incorporation of the ECHR via the HRA 1998 has heralded much debate on the extent to which domestic law will be shaken up and reformed in a much more solidly based rights discourse. The law of real property is one that has escaped much of this discussion, but it is increasingly clear that it is an area in which the new provisions could have significant e f fe~t .~’ Yet, to be credible, moves made to apply Convention rights to the law of real property must proceed on a reasoned basis. It is not entirely clear that that has been case in the Court of Appeal’s application of human rights issues to chancel liability. It is to these issues that this paper now turns.

46. Eg it has concerned the Law Commission since 1970. See Law Commission No 36 Fi fh Annual Report (1969-70); Law Commission No 58 Eighth Annual Report (1972-73); Law Commission No 119 Seventeenth AnnualReport (1981-82). 47. Law Commission Working Paper No 86, n 8 above, para 3.1. 48. Baker, n 8 above. 49. Original inquiry came in 1983, followed by the White Paper in 1985 which recommended abolition: n 8 above. The response of the Law Society was to favour immediate abolition of chancel liability rather than the ‘run out’ period suggested by the Law Commission: ( 1 986) 83(25) LS Gaz 2076 (reproduction of a letter from the Law Society’s Secretary General to the Permanent Secretary to the Lord Chancellor). 50. It appears that a period of consultation is currently being undertaken by the Government with Church of England Authorities prior to a decision about implementation: see HC Official Report (6th series) written answers, col340, 1 July 1996. 51. See in particular the latest report of the Law Commission, Law Commission No 254 LandRegistrationfor the Twenty-First Century (1998) and the Land Registration Act 2002. 52. J Howell ‘Land and Human Rights’ [ 19991 Conv 287-3 10; Lord Reed ‘Human Rights and Property Law’ (2001) I Human Rights and UK Practice 1 1- 15; D Rook Property Law and Human Rights (London: Blackstone Press, 2001). See also Pye v Graham [2001] 2 WLR 1293 which examined human rights principles in the context of adverse possession. Chancel liability has escaped discussion in the few analyses of real property law and human rights.

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THE COURT OF APPEAL’S APPROACH53

Mr and Mrs Wallbank are the freehold owners of ‘Glebe Farm’, land which forms part of ‘Clanacre’. Since 1743 when it was allotted by an inclosure award Clanacre has been rectorial property and, because of this, all owners of Glebe Farm automatically became lay rectors of the parish church, in this case the church of St John the Baptist in Aston Cantlow, Wales. In 1970 the Glebe Farm was acquired by Mrs Wallbank’s parents, the conveyance expressly stating that the land was ‘subject to the liability to repair the chancel of Aston Church’. In 1974 h4rs Wallbank’s parents gave it to Mr and Mrs Wallbank. In 1994 Aston Cantlow Parochial Church Council (hereafter the PCC) exercised their right to enforce the obligation to repair the church’s chancel against the Wallbanks as lay rectors of Glebe Farm, calling for the sum of &95,260.84.

At first instance Ferris J found in favour of the PCC,54 but his decision was reversed by the Court of Appeal. Between the hearings at first instance and in the Court of the Appeal HRA 1998 had come into force, and the higher court permitted the parties to change the focus of their arguments to reflect the new j~risprudence.~~ In consequence, the Court of Appeal faced two main issues: first, whether the PCC is a public authority within HFL4 1998, s 6; and, secondly, if so, whether serving notice on the Wallbanks was unlawful by reason of art 1 of the First Protocol, either alone or with art 14 ECHR.

The judgment of the Court of Appeal was given by Sir Andrew Morritt V-C?6 Before turning to the two issues of the appeal, he endorsed the view of Ferris J that the common law in this area was ~ettled.~’ Morritt V-C was firmly of the view that whilst there may well be ‘plenty of room for argument about what the law ought to be’, it was not the task of the court in this case to question the appropriateness of the common law, but rather to question the appropriateness of the PCC’s exercise of its rights in light of HRA 1998 and the ECHR.

Is the PCC a public authority? Of the two issues in the appeal, perhaps the more interesting was the first: whether the PCC was a public authority. Not all bodies or organisations will fall under the ambit of HRA 1998, and so not all are bound to ensure that ECHR rights are upheld. Under the provisions of HRA 1998, a body must be a ‘public authority’

53. Aston Cantlow & Wilmcote with Billeslq Parochial Church Council v Wallbunk [2001] EWCA Civ 7 13, [2001] 3 All ER 393. For newspaper coverage see ‘Hidden cost of legacy’ Guardian, 11 March 2000. 54. (2000) Times, 28 March. 55. At first instance Ferris J had considered whether, under the doctrine in Derbyshire Counry Council v Times Newspapers [ 19921 QB 770, chancel liability fell to be considered as compatible with the ECHR. Because Fems J concluded that the law on chancel liability was settled, there was no need to have recourse to the Convention. Nevertheless, he went on to consider, obiter, and reject arguments that the application of the chancel liability to the Wallbanks transgressed Convention rights. 56. The otherjudges sitting were Robert Walker and Sedley LW. 57. [2001] 3 All ER 393 at [ 141, [ 151 and [24], citing Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417 and Chivers v Air Ministry [1955] Ch 585.


before it can fall within the scope of the Convention. The term ‘public authority’ is laid down in HRA 1998, s 6, which states:

‘( 1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right

(3) In this section ‘public authority’ includes- (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.’

HRA 1998 provides no further definition of the phrase ‘public authority’, a gap not yet filled by the courts. Morritt V-C did not take up the challenge, asserting that ‘it would be a mistake to attempt an abstract definition’,s8 without articulating why, but nonetheless teasing the reader with the assertion that ‘the statutory concept . . . is more than the two His view was that the phrase was ‘not a term of art; nor is its application obvious or easy’: nevertheless, he held that interpreting the scope of the phrase was not an occasion to invoke Pepper v Hurt60 since ‘the words are perfectly intelligible’.6’

Had the court allowed reference to be made to Hunsurd, it would have learnt that the intention of Parliament was that ‘Liability in domestic proceedings should lie with bodies in respect of whose actions the UK government was answerable to Strasbourg’.62 That suggests a restrictive interpretation. Professor OliveP advances strong reasons for prefemng such an interpretation (for the reasons she articulates); a public authority, being part of the state, does not enjoy Convention rights and as such would, for example, be without redress under the First Protocol were its property taken without compensation.M It is clear from HRA 1998, s 6 that the term does not point to one all-encompassing classification. Rather, it covers both those bodies which are public authorities outright, and those organisations which are quasi-public, that is, whilst not wholly public carry out public functions none the less. The existence of the latter category would afford further reason for at the very least not straining to

...

58. [2001] 3 All ER 393 at [30]. 59. [2001] 3 All ER 393. 60. [I9931 AC 593. 61. [2001] 3 All ER 393 at [29]. One sense of ‘intelligible’, given by the New Shorter Oxford English Dictionary, p 1387, is ‘capable of understanding’. In Pepper v Hart [ 19931 AC 593 the issue was whether the word ‘cost’ in the phrase ‘the cost of the benefit’ (in what is now Income and Corporation Taxes Act 1988, s 156( 1)) referred to marginal cost or average cost. One may suspect that future cases will reveal a greater richness of ambiguity in the term ‘public authority’. 62. 314 HC Official Report (6th series) cols 432-433, 17 June 1998, quoted in A Lester and D Pannick Human Rights law and Practice (London: Butterworths, 1999) pp 30-3 1. 63. D Oliver ‘The frontiers of the State: public authorities and public functions under the Human Rights Act’ [2000] PL 476-493. 64. Support for Oliver may in fact be found in para 33 where, after referring to art 34 as limiting the status of potential victim to ‘any person, non-governmental organisation or group of individuals’ continued ‘from which the state stands distinct’.

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expand the ambit of the principal category, since the hybrid category will be available to mop-up other cases.

Some bodies, like the government and the police, will be self-evidently public authorities and hence fall into the first category. Others, like a PCC, will hover at the borderline. For these cases definitive guidelines from the courts would be welcome, but so far the courts have relied upon apperception rather than definition. Commentators have attempted to fill this gap. Oliver, for example, has identified certain criteria to test if a body amounts to a public authority, arguing that the best approach would be to examine the nature of the body itself, and not just the functions that it undertakes.hs Oliver’s criteria include the body’s possession of special powers, authority or immunity; democratic accountability; funding out of public monies; constitution by statute; and an expectation to pursue activities only in the public interest and on a not-for-profit basis. These criteria are not exhaustive, nor are they definitive. Taken together, what they point to is the intrinsic connection between the body and the infrastructure of society, such that, without the body society would lack a key part of its organisational fabric.

The court in Wallbank advocated a substantive rather than formulaic approach to HRA 1998, s 6, concluding that a PCC fell into the principal category or, if not, then into the hybrid category. The reasoning of the court will be examined below, but it is worth noting at the outset that the court’s decision is somewhat confusing on this point, and not easy to square with its reasoning. The court rejected a narrow test. Drawing upon the wording of HRA 1998, s 6(3)(b) ‘functions of a public nature’, counsel for the PCC had sought to argue that the umbrella test of ‘public authority’ was ‘function-based’. Certainly, if one draws parallels to determining public authority by reference to determining judicial review, the function-based approach is the most pertinent.66 The court’s view, however, was that whilst the wording in HRA 1998, s 6(3)(b) would have a bearing on the characteristics of the public authority, it did not govern the principal category and cases such as R v Disciplinary Committee of the Jockey Club, e x p Aga Khan6’ and R v Panel on Takeovers and Mergers , e x p Datafin6’ on the amenability of bodies to judicial review, whilst applicable, were not de t e rmina t i~e .~~ These cases draw a line between functions of public governance (which have an essentially external focus), and functions of mutual governance (which have an essentially internal focus). Functions of public governance lend a public character and so would open up an organisation to judicial review.”

65. Oliver, n 63 above, drawing most particularly upon GrifJiths v Smith [ 19411 AC 170; Derbyshire County Council v Times Newspuppers [ 19921 QB 770; Foster v British Gas [ 19901 2 CMLR 833. 66. See H W R Wade and C Forsyth Administrurive Law (Oxford: Oxford University Press, 8th edn, 2000) ch 18. 67. [ 19331 1 WLR 909. 68. [ 19871 QB 815. 69. [2001] 3 All ER 393 [34]. 70. In Ex p Dutufin [ 19871 QB 8 15 at 838, Sir John Donaldson MR had emphasised the key criteria and stated: ‘Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to [their] jurisdiction.’


None the less the court reasoned that, even if these cases were decisive and the PCC’s argument were to be followed, they would not assist the PCC since its power to enforce the repairing obligation against a lay rector had statutory authority. Thus the PCC had an external function-based relationship rather than an internal or mutual-based relationship with the lay rector. In the words of Momtt V-C:7’

‘The relationship in which the function arises is created by a rule of law and a state of fact which are independent of the volition of either of them.’

This is not an inevitable conclusion. If one turns to the nature of the obligation to repair the chancel, as already noted, the statute to which Momtt V-C refers, the Chancel Repairs Act 1932, does not itself either create or impose the repairing obligation. It merely operates on a procedural level to transfer jurisdiction from the Ecclesiastical courts to the county court. The county court, a creature of statute, can only exercise jurisdiction specifically given to it. Given this and that the ecclesiastical courts were the King’s courts, as were the temporal courts,72 there is in principle no difference between a statute allocating this jurisdiction to the county court and a statute directing certain possession actions exclusively to the county And this last statute does not alter the right to possession: that has to be proved aliunde. Likewise with the Chancel Repairs Act 1932.

Thus the ‘relationship’ to which Morritt V-C refers arose not from the 1932 Act but from the common law, as indeed he recognised.’‘ That relationship is of neighbouring landowners, one having a benefit and the other a burden as is commonplace with servitudes. As such it is not, in principle, different from other situations where a benefit and burden are held to be sufficiently connected to go together. The relationship in fact arose many years ago,75 and thereafter subsisted because successive purchasers of Clanacre decided (presumably voluntarily) to enter into that relationship. So one may legitimately differ from Morritt V-C’s assertion that the relationship arose from ‘a state of fact ... independent of the volition of either of them’.

Our reasoning may be tested by an example. Suppose that the obligation had been created not by common law custom, but by express covenant supported by a legal mortgage over Clanacre. How would that differ, conceptually, from the relationship that Morritt V-C identified? Of course, the covenant, being positive, would not run with the land so a successor in title could not be sued on the covenant. But why would the legal mortgage not bind the covenantor’s successor in title? If one were to categorise the purchaser in this situation as voluntarily assuming (albeit indirectly) that obligation (not an impossible categorisation) then so must one be able to categorise the Wallbanks’ relationship with the PCC. It is questionable, therefore, whether the relationship

71. [2001] 3 All ER 393 at (341. 72. A point expressly recognised by Momtt V-C in [2001] 3 All ER 393 at [31]. 73. See eg, County Courts Act 1984, s 21(3): ‘...if a county court has jurisdiction by virtue of this section . . . no court other than a county court shall have jurisdiction to hear and determine that action.’ 74. In the judgment of [2001] 3 All ER 393 at [37] ‘the Act simply changes the mechanism . . . The power.. . is a common law power’. 75. Ie since the inclosure award in 1743.

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between the parties, viewed purely from the function of the PCC to enforce the repairing obligation, is sufficient to put the PCC into the category of a public authority.

In fact, it is the court’s broader focus on the nature of the Chancel Repair Act 1932 that causes some difficulties with their overall reasoning. Whilst rejecting the PCC’s view that the decisive factor was the function of the body, the court nevertheless concluded that the PCC was a public authority on the bases that in enforcing the obligation to repair the chancel upon a lay rector the PCC was carrying out a function that had been given to it by statute, and that the PCC was a body ‘created and empowered by law’ forming part of the established

The court did not elaborate upon either of these two point~.’~ This is to be lamented, since it is hard to justify the conclusion that the PCC is a public authority on these points alone. First, as noted above, the Chancel Repairs Act 1932 does not provide the PCC with the function to enforce the repair obligation against a lay impropriator, that right is an ancient right from the common law. On the simplest of constructions the court seems to be arguing little more than that the PCC is a public authority as of right because it is exercising a statutory function. Yet all the statutory function does is allow the PCC to seek enforcement, in the county court, of a right which exists independently of the legislation.

Secondly, there are a number of bodies ‘created and empowered by law’ which one would not assume to fall without question into the category of public authority, for example, bodies such as the National The court further reasoned that the fact that the National Assembly of the Church of England was empowered to create a statutory corporation, ie the PCC, was ‘an index . . . (to some extent) of [the public character] of a PCC’. This reasoning would suggest that if the Crown can create a company by Royal Charter,79 then the body created ‘to some extent’ has a public character. That does seem implausible and certainly

76. [2001] 3 All ER 393 at [32]. The court emphasised (at [35]) that ‘The PCC itself exemplifies the special status of the Church of which it forms a part.. . The successor of the vestry, the PCC is constituted not as a voluntary association but by law’: see Act of Supremacy 1568; Church of England Assembly (Powers) Act 1919; Parochial Church Councils (Powers) Measure 1956. 77. Although it did repeat at [35] that the PCC was ‘an authority in the sense that it possess powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force’. But here again there was no development of the argument. What is intended by the phrase ‘statutory force’, and how does that differ from the statutory force given under the Law of Property Act 1925 given by virtue of the service of a valid notice under that section? In each case the service of the notice merely unlocks the entry to the next stage of the enforcement process, and in each case the statute grants no new right: unless there is apre-existing right neither Act will have anything to bite on. 78. R v National Trust, e x p Scott [I9981 1 WLR 226. It is not felt that the fact that the National Trust is a public body for the purposes of the Local Government Act 1972, s 95 (disclosure etc of pecuniary interests), and that it does have the power to make byelaws under the National Trust Act 1907, s 33 detracts from the point made in the text. 79. As it can, see the detailed discussions in W R Scott The Constitution and Finance of English, Scottish und Irish Joint-Stock Companies to 1720 (Cambridge: Cambridge University Press, 1910-12); and A Dubois The English Business Company a f e r the Bubble Act 1720-1800 (London: Oxford University Press, 1938), both referred to in Mayson, French and Ryan Company Law (London: Blackstone Press, 15th edn, 2000) para 0.1.2.2.


historically was not universally true, although of course some such corporations did have a public character.E0

Certainly, one could construct an argument that a PCC is a public authority, although, it is submitted, such an argument was not constructed by the Court of Appeal. For example, examining Oliver’s suggested tests noted above and drawn from case law, one could argue that the nature of a PCC lends it a public character.81 Thus: the composition of a PCC is regulated by the Church Representation Rules (see especially Appendix II), and each PCC will be constituted by a mixture of clergy and lay members, some directly elected to the body. The PCC is democratically accountable and each PCC will have special powers and authority found, inter alia, in the Parochial Church Councils (Powers) Measure 1956. These powers include the control of expenditure and the maintenance of the fabric of the church; power to hold, acquire, administer and dispose of property for any ecclesiastical purpose; putting into effect the decisions of the deanery; raising matters with synod; co-operation with the minister in promoting in the parish the whole mission of the church; and consideration of matters concerning the Church of England or of religious or public interest.” A PCC will be a body corporate,83 with access to public monies, and will pursue activities in the broad public interest on a not-for-profit basis. However, taking a substantive approach to these criteria, they do not inevitably lead to the conclusion that a PCC is a public authority as of right. Whilst a PCC provides a link between an incumbent and parishioners, and functions partly as an administrative arm of the Church of England, it does not of itself have an intrinsic connection to the infrastructure of society, such that, without it society would lack a key part of its organisational fabric. True, as the established church, the Church of England forms part of society’s infrastructure, and will inevitably be required to put into place procedures to cany out its administrative functions. The PCC forms one level of the management procedures, but it is not the only method that is, or could be, utilised. If the PCC did not exist, the Church of England could still function.

In its defence, the PCC had sought to argue that its actions were justified in the public interest. In fact, Morritt V-C used their argument to support his conclusion that the PCC were a public authority since ‘[counsel] cannot have the one without the other’. It was the court’s view that if the actions of the PCC were in the public interest it must mean that the corollary of the argument applies, that the action must thus be a public function. This approach was not necessary to reach a conclusion on whether the PCC was a public authority, and the court’s reasoning is too simplistic. Many individuals or organisations might undertake an action in the public interest, but that does not necessarily mean that the action per se is a public function; the two concepts are distinct. For example, if a company decrees in advance of legislation that silencers are to be fitted on all company vehicles in order to reduce noise and omissions, or that all paper and printing cartridges used in company offices should be recycled, it will have made a decree in the public interest with regard to the environment. However,

80. See Scott and Dubois, n 79 above. 81. See M Hill Ecclesiastical Law (Oxford: Oxford University Press, 2nd edn, 2001)

82. See Parochial Church Councils (Powers) Measure 1956, s 2 and Hill, n 81 above,

83. Parochial Church Councils (Powers) Measure 1956, s 3.

pp 48-57.

pp 53-55.

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one would find it hard to argue that that reason alone would make the actions of the company public functions.

Acting in the broad public interest would not, in any event, have been enough to excuse a public authority from liability under HRA 1998. If the conclusion is drawn that a body is a public authority as of right, it will escape liability if it can fall within HRA 1998, s 6(2):

‘(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.’

The Court of Appeal rightly rejected this escape route for the PCC. As noted above, the primary legislation in this case is the Chancel Repairs Act 1932, an Act which does not introduce a power of recovery, the power remains a common law right ‘unprotected by section 6(2)’.8J This reasoning, though correct, appears not to have been evident in the earlier part of their judgment.

The alternative construction of the PCC is that it falls within HRA 1998, s 6(3)(b) as a legal person certain of whose functions are public functions. The court was of the view that if the PCC was not a public authority as of right, it would fall within this second category of a quasi-public authority. It is submitted that this is where the PCC properly belongs. From the points highlighted from Oliver’s approach to construction of a public authority, this conclusion would indeed seem ‘inescapable’ since certain of the PCC’s functions have a public flavour. Yet, categorising the PCC as a hybrid authority allows the courts in future to develop a jurisprudence under which in exercising their public functions they must give effect to Convention rights, but in other respects, they are entitled to the protection afforded by those Convention rights.

However, bodies which fall within the quasi-public authority category can escape liability under HRA 1998, s 6(5) where in relation to the act called into question, the ‘nature of the act is private’. The distinction between private and public has always been contested, but in the context of the PCC’s exercise of the enforcement of a proprietary right, one would think that the distinction is clear cut, and that the enforcement of the chancel repair obligation is a private act. As a parallel, one may draw upon the example provided by the Lord Chancellor, Lord Irvine, during the passage of the Human Rights Bill through Parliament. He stated:85

‘Railtrack, as a public utility, obviously qualifies as a public authority because some of its functions, for example its functions in relation to public safety on the railways, qualify it as a public authority. However, acts carried out in its capacity as a private property developer would no doubt be held by the courts to be of a private nature and therefore not caught.’

In conclusion on the point whether a PCC is a public authority, it is argued that the Court of Appeal’s decision in the affirmative for a public authority can be

84. (20011 3 All ER 393 at [37]. 85. 2R HL Official Report (5th series) ~01796.3 November 1997.


supported, but not on the reasoning provided by the court itself. Further, the alternative, to categorise the PCC as a quasi-public body, has distinct advantages which make such categorisation preferable. However, in so doing the PCC would appear to fall within the exception provided in HRA 1998, s 6(5), that their enforcement of the chancel repair obligation against a lay rector is a private right and not a public function.

Right to peaceful enjoyment of possessions (art 1 of the First Protocol)

The second issue faced by the Court of Appeal was, if the PCC is a public authority, whether their serving of notice on the Wallbanks was unlawful by reason of art 1 of the First Protocol alone, or with art 14 ECHR.

At first instance Ferris J, obiter, rejected infringement of art 1 by the PCC. It was Ferris J’s view that in cases where there is the chancel repair obligation the obligation existed in similar fashion to other encumbrances, such as a restrictive covenant. Thus the landowner becomes subject to the obligation on the basis that it was indistinguishable from the land. The Court of Appeal rejected this approach to the obligation as intrinsic to ownership, despite the fact that it has much to commend it.x6 Rather, the court focused on the personal nature of the obligation, that is, that it was not limited to the value of the land, and allied it to an instrument of taxation. The chancel repair obligation amounted to a tax because ‘a private individual who has no necessary connection with the church is required by law to pay money to a public authority for its ~pkeep’ .~ ’ In these terms the court felt that it was indistinguishable, from other personal taxes such as the council tax, which were derived from, but not limited by, ‘a legal relationship with land’. In drawing this conclusion, the Court of Appeal adopted Darby v Sweden:* in which the European Court of Human Rights accepted that art 1 ECHR included money within the definition of possessions by virtue of the article’s reference to ‘taxation’. It may be argued that whether or not this was a tax was not relevant since the first paragraph of the Protocol makes no mention of tax. But accepting that it was relevant, the court’s analysis made no reference to the source of the obligation. Although there is no single test of what amounts to a tax, it has hitherto been assumed that a feature is that the ultimate justification for its imposition is the l eg i~ la tu re .~~ That element was absent.

86. Because English land law is posited upon the general principle that benefits and burdens can be attached to titles to land, eg the benefit and burden of an easement respectively attaching to the title to the land benefited and the land burdened. It is, of course, true that there are exceptions to this general principle, so, for example, a servient tenement is not ordinarily liable to expend money for the benefit of the dominant tenement owner: Bond v Nottingham Corpn [ 19401 Ch 429 at 438, per Sir Wilfred Greene MR. 87. [2001] 3 All ER 393 at [40]. 88. (1991) 13 EHRR 774. 89. See eg, Re Eurig Estate ( 1998) 165 DLR 1 at 10 per Major J (giving a judgment concurred in by Lamer CTC, II’Heureux-DuM, Cory and Iacobucci JJ, with Bastarache and Gonthier JJ dissenting but not specifically on this point), adopting the analysis of Duff J in Lawson v Interior Tree Fruit and Vegetable Committee of Direction [ 193 11 SCR 357 at 363, [ 193 11 2 DLR 193, a levy was ‘a tax because it was: ( 1) enforceable by law; (2) imposed under the authority of the legislature; (3) levied by a public body; and (4) intended for a public purpose’. See further J Tiley Revenue Law (Oxford: Hart Publishing, 4th edn, 2000) pp 1-7.

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Whilst the court concluded that this particular taxation was in the public interest by virtue of the fact that it contributed to the restoration and upkeep of historical buildings, under the principle of proportionality which attaches to art 1, they nevertheless were of the view that the aim of the chancel repair obligation was not pursued in a legitimate and proportionate manner.9o Case law has established that proportionality will not exist if the aim of the taxation is achieved by a method which causes the person affected to bear ‘an individual and excessive burden’, so depriving them of peaceful enjoyment of their possession^.^' Pointing to the fact that art 1 permits a state to enjoy a large choice of measures to control the use of property or to redistribute wealth by legitimate means, it was the court’s view that because the chancel repair obligation applies arbitrarily in that it attaches to land ‘now shorn of any connection with the rectory’, that it can arise at any time and is not limited to the value of the land, it imposes upon the landowner an excessive and disproportionate burden.’2 In the words of Morritt V-C:93

‘The rationale which once distinguished such land materially from other freehold land has vanished into history. No rational link is discernible between the extent or value of the interest in the land and potential amount of the liability. Arbitrariness is thus not simply a side-effect but the dominant feature of this historical form of taxation.’

Thus, following James v UK, and Hentrich v France,94 the arbitrary operation of a tax amounts to an infringement of the right to peaceful enjoyment of possessions, and so the PCC had infringed art 1 of the First Protocol ECHR. Accepting for the moment that the rationale has disappeared, arbitrariness is not a necessary consequence. The first purchaser of the land with the chancel liability did so with full knowledge - that is the nature of a custom, it is notorious. Subsequent purchasers all took with notice. Each either could have or did ascertain the likely expenditure related to that obligation, and had every incentive to do so, in order to bargain a lower purchase price. Indeed, the court seemed to accept the possibility of this argument.95 Knowing the likely burden and the date when it either was known to or could be expected next to materialise are not the hallmarks of arbitrariness. Neither, in the context of the purchase by Mrs Wallbank’s parents, does E95,OOO seem a large burden when set against (i) the lower purchase price attributable to this burden, (ii) the 20 years of enjoyment of Glebe Farm during which time the discount from the purchase price could

90. James v UK (1986) 8 EHRR 123. 91. See Sporrong v Sweden (1982) 5 EHRR 35 (para 73) Hiikunsson v Sweden (1990) I3 EHRR 1 (para51). 92. [2001] 3 All ER 393 at [MI-[45]. 93. [2001] 3 All ER 393 at [45]. 94. (1994) 18 EHRR 440. 95. See [2001] 3 All ER 393 (para 5 1): ‘If the liability were a registrable charge or interest reflected in the purchase price or value of the land, an argument to the contrary might begin to run.’ The court never articulated (i) the relevance of registration given that there was, and always had been, actual notice, and (ii) given the actual notice, what, in the mind of the court, displaced what would seem an inevitable consequence, that the known presence of an incumbrance would be reflected in a lower price.


have been invested, (iii) the value of Glebe Farm in 1994 when the burden fell in, (iv) the income produced over those years, and (v) the right of contribution from the remaining owners of C l a n a ~ r e . ~ ~

Three further points may be made here. First, it was only at the secondary point of questioning proportionality that the court considered the rationale for the imposition of the chancel repair obligation. In reaching their primary conclusion that the obligation amounted to a tax, the Court of Appeal paid no attention to the obligation’s rationale. As noted above, though outmoded, the original rationale for the imposition of the burden on a rector was the doctrine of reciprocal benefit and burden. Rectors had a distinct advantage from ownership of the land in that it provided them with their ‘living’, the benefice. It was out of that tangible benefit that the burden was to be carved. It is arguable therefore, that this obligation was not a taxation on ownership, rather it was a duty indistinguishable from and intrinsic to a specific value accorded to a landowner. That the advantage has ceased to exist due to historical accident/ development does not thereafter make the obligation a taxation because the burden is so firmly entrenched with the land. This leads to the second point, that the obligation though unlimited to the value of the land is still a proprietary right which attaches to specific land. It is entirely distinguishable from a personal taxation such as the council tax to which the court referred, which was only superficially connected to possession of residential property. The court’s conclusion should have stopped, therefore, at a point before it reached the question of proportionality.

Thirdly, and most starkly for the purposes of land law, the Court of Appeal when addressing art 1 paid no attention to the fact that the landowners in the case before them, and their predecessors in title, took the land with notice of the chancel repair obligation. One of the reasons why the chancel repair obligation is viewed as arbitrary is that it is often difficult to discover its existence, and a landowner can be fixed with liability with no opportunity to have made contingency plans. This was not the case for the Wallbanks; they had notice of the obligation. That must have depressed the price at which the land was valued when purchased by Mrs Wallbank’s parents and hence the price they should have paid.97 Further, taking with notice both they and their predecessors in title had every opportunity to reject the land, or to take out indemnity insurance to cover the possibility of being called upon to pay. This is no small point, since the conclusion reached by the Court of Appeal could have significant repercussions for more prevalent proprietary rights. For example, what if a landowner had taken with notice land upon which their farmhouse had been built in breach of a restrictive covenant? Providing the dominant tenement owner fell within the construct of a public authority under HRA 1998, s 6, an

96. The fact that the Wallbanks had received the property by way of gift does not detract from the point. 97. The court deliberately chose strong language (‘completely arbitrary’ and ‘out of all proportion’: see [2001] 3 All ER 393 at [MI), reasoning that it was arbitrary because there was no relevant difference between the former rectorial land and other freehold and because the liability could arise at any time and be in any sum up to the cost of total reconstruction, resulting in no rational link between the extent or value of the interest in the land and the potential liability.

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argument could be advanced in the landowner’s defence under art 1 of the First Protocol. At one level, enforcement of the covenant is arbitrary in that whether it is enforced is entirely at the whim of the dominant tenement owner. Moreover, the aim of the restrictive covenant could be disproportionate to the method of enforcement. Would the Court of Appeal have reached the same conclusion in favour of the landowner without paying heed to the fact that the landowner had notice of the breach and had every opportunity to take out indemnity insurance for their own protection? If so, this puts human rights law at extreme odds with the principles of land law, land registration, and the balance of protections for all proprietary right holders. If not, then the court should have taken the point of notice into account when dealing with the Wallbanks’ case.

Is there discrimination under art 14?

Whilst the court was of the view that the foregoing analysis was enough to decide the appeal, they went on to consider whether there had been discrimination under art 14. As noted above, art 14 is to be read intrinsically with the Convention, guaranteeing not a general freedom from discrimination, but a freedom from discrimination in the context of the application of the Convention rights. Ferris J had concluded at first instance that where the Wallbanks were compared with a narrow class of lay rectors, they had not suffered any different treatment in the application of art of the First Protocol. Consequently, there was no breach of art 14. The Court of Appeal, however, concluded that Ferris J had started from the wrong premise, that of discrimination against the Wallbanks rather than against lay rectors generally, and so his conclusion was erroneous. It was the Court of Appeal’s view that not only did lay rectors (a class of which the Wallbanks formed a part) suffer discrimination, but that discrimination was disproportionate having ‘no reasonable and objective justification’.

In reaching this conclusion, the Court of Appeal drew upon Stubbings v UK,98 in which the European Court of Human Rights had identified the comparator class for the purposes of art 14 as one ‘in an analogous or relevantly similar situation’.99 The key, according to the Court of Appeal, was to find a class with mutual characteristics other than the one upon which discrimination is founded.lm In the Wallbanks’ case the mutual characteristic was ownership of freehold land, not merely ownership of rectorial land. This constitutes a very broad comparator class in which lay rectors are treated somewhat differently. Moreover, this discrimination was not proportionate since the restoration of historical buildings may be legitimate, but the means to achieving that purpose were not objectively justified.’”’

In an increasingly secular society, one can appreciate the outcome of the Court of Appeal’s decision on this point. There is no modern objective justification for landowners per se to support the maintenance of historical buildings, buildings which should more properly be supported by the

98. (1996) 23 EHRR 213. 99. [2001] 3 All ER 393 at 1701. 100. [2001] 3 All ER 393 at [50]. 101. [2001] 3 All ER 393.


communities which derive their benefit. However, one can still question the approach taken by the court. In their view, Ferris J had taken a wrong turn by comparing like with like, that is, one lay rector as against all lay rectors. In the Court of Appeal’s view, such an approach would only ever result in a finding of no discrimination because there are insufficient differences between the two classes. Yet, as an antidote to that lack of differential, the court took the opposite approach of choosing two widely differential classes joined only superficially by virtue of their ownership of freehold land. It is arguable that the two classes of lay rectors and freehold owners are not in ‘an analogous or relevantly similar situation’ as indicated by Stubbings v UK.Io2 Land which bears one obligation, whether it be chancel repair liability, a mortgage, an easement or a restrictive covenant by definition exhibits characteristics which put them apart from a general category of landowners whose land is unburdened by those obligations. It would have been more appropriate to have compared the Wallbanks as lay rectors with notice of their obligation with the broad class of lay rectors generally, most of whom would not have notice. These two classes are analogous, and share mutual characteristics, but have significant differentials to test if discrimination occurs. Of course, had these classes been used, the Wallbanks would not have been found to have suffered discrimination under art 14, not least because a lay rector with notice is in a better situation than one without notice, having the opportunity to make contingency plans.

CONCLUSION

Whether from a land law or secular perspective, few would argue that chancel liability is not increasingly incongruous in today’s society. Many will have welcomed this ‘landmark’Io3 decision from the Court of Appeal to limit the ability of a PCC to enforce the repairing obligation against an owner of former rectorial property. A few will be concerned with the encroachment of human rights in a previously protected area of law concerned with real property rights, but may accept that law has to evolve. However, before accepting the outcome of the court’s decision as a welcome dissolution to the endurance of chancel liability one should question the proportionality of the court’s own approach. Chancel liability is an incongruity, it has been severed from its original rationale, and it is increasingly hard to discover. Yet there are sufficient holes in the court’s approach to mean than the outcome may not be justified by the means used to achieve it. Morritt V-C, in delivering the judgment of the court made the broad point that:

‘Our task is not to cast around in the European Human Rights Reports like blackletter lawyers seeking clues. In the light of section 2( 1) of the HRA 1998 it is to draw out the broad principles which animate the convention.’

For the reasons identified in the forgoing section, the convention may well have been animated and, inasmuch as the decision will obviously remove the possibility of persons without notice of the chancel repair obligation from a

102. (1996) 23 EHRR 213 (para 70). 103. See (2001) Times, 18 May.

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wholly unexpected liability, its result may be welcomed. But this has been achieved at a price. That price includes a definition of tax as including liabilities not arising under the authority of the legislature, a wide definition of ‘statutory force’, a willingness to accord the status of public authority on slender criteria, a willingness to equate public interest with public function, (impliedly) a very narrow definition of private function (since the chancel repair was held to be a public function), and creating uncertainty. Legislation based upon the Law Commission’s proposals could provide a more rounded solution.

seeking the principle: chancels, choices and human rights

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