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There are believed to be over 5,000 historic parishes in England established before the Reformation with the right to enforce payment of the cost of repairs to the chancel of the local church against particular landowners. The publicity surrounding the 2004 decision of the House of Lords in the claim of Aston Cantlow PCC vs Mr and Mrs Wallbank has led to a marked interest in the subject.

The Duties of the PCC

It is the duty of The Parochial Church Council to maintain the fabric of the church buildings in the parish, and so to enforce chancel repair liability.

PCCs are charities and therefore their position is analogous to that of a trustee of a trust and as such they are subject to a number of fiduciary duties.

Members of a PCC who act in breach of these fiduciary duties may be required to make good from their own resources any loss which the PCC suffers as a result of that breach.

They could also face an enquiry from the Charity Commission if the PCC is a registered charity which many of them are.

One of these fiduciary duties is to protect and preserve the assets of the PCC. The right to enforce chancel repair liability effectively represents an asset of the PCC. It follows that a PCC must not only take reasonable steps to investigate whether such a liability exists in relation to any church within its parish but also, enforce any such liability that exists.

Aston Cantlow

It was this issue that was central to the Aston Cantlow case. The question (which went all the way to the House of Lords) was not whether the Wallbanks as owners of the relevant land were liable for chancel repairs but whether it was fair that they should have to pay. The Wallbanks argued that the PCC's claim was unlawful in the light of the Human Rights Act 1998 as an act by a public authority incompatible with an individual's rights under the Human Rights Convention, here the right to peaceful enjoyment of their property.

The Wallbanks were unsuccessful. The Lords held that by maintaining the fabric of the church so that services may take place, the PCC was doing its part to help the minister discharge his pastoral and spiritual duties. And that was in the "public interest" in the general sense.

It was further held that the enforcement of the liability under general law was an incident of the property right that was vested jointly in Mr and Mrs Wallbank. It was not an outside intervention by way of a form of taxation (another "Human Right"). Nor was the peaceful enjoyment of their land being interfered with.

It is important to note that at no stage was there any argument that the Wallbanks' property carried with it chancel repair liability – that was obvious from the deeds of their property. However the case brought the issue of chancel repair liability to the fore and prompted panic amongst property owners that their property could carry chancel repair liability even if that property was in a very different type of location from the rural idyll of Aston Cantlow. The revelation that inner city churches including those in London and Manchester could carry similar rights fuelled the panic.

The Current Position

Prompted by the Aston Cantlow litigation, the law on chancel repair liability was clarified. In 2003 the Lord Chancellor made the Land Registration Act 2002 (Transitional Provisions) ( No 2) Order.

This preserves the current position until 13th October 2013. Any chancel repair liability continues to be an overriding interest (that is to say it will bind any owner of the land whether or not they know of it when they buy).

Thereafter any purchaser who buys ignorant of the liability cannot be held liable for the chancel repairs. The liability falls back on the PCC.

So what should PCCs do?

In short, ensure that any buyer knows about the liability before he buys. This can be achieved by registering a "Caution against first registration" in the case of unregistered land or a "Notice" in the case of registered land – the Caution or Notice in effect notifying any buyer of their prospective chancel repair liability.

Failing to register the Notice or Caution within that time may not be fatal. The liability will still be enforceable after the expiration of that period against any existing owner of the land until he or she disposes of it. But any new owner would be freed from liability. To bind a new owner the PCC would have to register their notice or caution before the land changes hands even if they do so after 12 October 2013.

The PCC’s obligation to investigate the existence of chancel repair liabilities remains. If they are successful in so doing, they should then register that liability so that they may enforce it.

That being said many PCCs mindful of the need to balance hard commercial realities with their spiritual duties may find other ways to finance necessary repairs to their churches – ways less likely to alienate local parishioners.

And what about the luckless landowner?

Those who know of a liability or are concerned that a liability may exist, should undertake a search with one of a number of chancel repair insurance companies, (most of which sprung up in the wake of the Aston Cantlow litigation). The search is not conclusive but does reveal whether or not a property is located within the boundaries of a historic parish with an ongoing chancel repair liability. If the search comes up positive then, for many, insurance will be the most attractive option. Others may prefer to trust in the Lord.

Rosie McCormick Paice, Solicitor
Residential Estate Property
email r.mccormickpaice@pglaw.co.uk
tel 020 7591 3344

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