Court of Appeal: Sir Andrew Morritt V-C, Robert Walker and Sedley LJJ, May 2001
In allowing an appeal from the decision of Ferris J (noted at (2000) 5 Ecc LJ 494), the Court of Appeal rejected the contention that the relevant law was uncertain. Citing J Baker, 'Lay rectors and chancel repairs' (1984) 100 LQR 181; Appendix B to the Law Commission's report, Liability for Chancel Repairs (Law Com 152, 1985); G Bray The Anglican Canons 1529-1947 (1998); and M Hill, Ecclesiastical Law (2nd edition, Oxford, 2001), the court recognised the long standing obligation upon lay rectors to pay for repairs to a chancel. The Chancel Repairs Act 1932 was predicated upon the existence of such a common law duty. Unlike the first instance decision where the matter was obiter, the appeal was determined subsequently to the Human Rights Act 1998 coming into force on 2 October 2000. The Court of Appeal applied the Act as follows:
(i) It was of the opinion a PCC is a 'public authority' for the purposes of section 6 of the Human Rights Act 1998, thus its acts, to be lawful, must be compatible with the rights set out in Schedule 1 to the Act.
(ii) The PCC was not acting under the compulsion of primary legislation, since the Chancel Repairs Act 1932 merely affected the mechanism by which the PCC was to recover the cost of chancel repair. The duty to collect was a common law duty unprotected by section 6(2) of the Human Rights Act 1998.
(iii) Article 1 of the First Protocol to the European Convention on Human Rights creates an entitlement to the peaceful enjoyment of one's possessions. The court considered the liability to defray the cost of chancel repairs to be a form of taxation. It was a levy on the personal funds of the landowners. The mere fact (as Ferris J had held) that the liability was an incident of ownership did not mean that it was not also a tax. The Court of Appeal likened it to council tax which could similarly bear both descriptions.
(iv) The tax was in the public interest, serving to assist in the upkeep of the national heritage.
(v) However, the tax acted entirely arbitrarily: first in that the particular land to which it attaches does not differ relevantly from any other land, such distinction having 'vanished into history'; and secondly, because the liability may arise at any time and be (within the cost of total reconstruction) in almost any amount.
(vi) It could not be justified under the second paragraph of the First Protocol (see the note below).
(vii) Furthermore, the law is discriminatory in that the owners of land which was formerly glebe land were treated less favourably that the owners of land which was not, by making the former but not the latter liable for chancel repairs. Thus there was a breach of Article 14 of the Convention in that the state, by its laws, is failing on grounds relating to their property to secure to lay rectors the enjoyment without discrimination of the right assured by Article 1 of the First Protocol.
Thus the appeal was allowed with the Court of Appeal determining that the PCC may not lawfully recover the cost of repairs, estimated at £95,000, from the appellants.
Note: This judgment (in the opinion of the case notes editor) is unsatisfactory in a number of ways and it is regrettable that the wider interests of the Church of England were not ventilated either by means of an intervenor or the appointment of an amicus. The question of whether a PCC is a public authority is only superficially addressed. Whilst it may be arguable that certain of its functions are of a public nature (Human Rights Act 1998, s 6(3)(b)), it is not to be treated as a public authority in relation to acts which are private (s 6(5)). The recovery of the costs of chancel repairs, the burden of which runs with rectorial land, is self-evidently a private act akin to the enforcement of any other encumbrance on land. Defining the liability to defray the cost of chancel repairs as 'inescapably' a form of taxation is little more than reasoning by assertion. It gives no account of the extent to which the market value of the rectorial land is reduced by dint of this inchoate liability. More significant, however, is the failure to take proper account of the second paragraph of Article 1 of the First Protocol to the Convention, which reads:
'The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'
If the Court of Appeal is right that (a) the obligation to pay for chancel repairs is a tax, (b) that the 1932 Act merely creates a mechanism of enforcement, and (c) that the PCC is a public body and hence an organ of the state, the Court of Appeal has itself violated this latter paragraph by impairing the right of the PCC to enforce the 1932 Act and secure the payment of such tax. The fact that the 1932 Act remains on the statute book is sufficient evidence that the state deems such a law to be necessary. The Court of Appeal did not contemplate making a declaration of incompatibility. This may prove but the first example of the 'litany of unintended consequences' heralded in the prophetic words of the writer in M Hill, 'The Impact for the Church of England of the Human Rights Act 1998' at (2000) 5 Ecc LJ 431 at 439. [MH]
(2001) 6 Ecc LJ 172-174
