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Ecclesiastical Case Reports
Aston Cantlow PCC v Wallbank
(Judicial Committee of the House of Lords, June 2003)
Lay rector – chancel repairs – Human Rights Act
The Defendants were the freehold owners of former rectorial land and consequently, as lay rectors or lay impropriators were liable at common law to repair the chancel of their parish church. In September 1994 the plaintiff, the parochial church council, served the first defendant with a notice under section 2 (1) of the Chancel Repairs Act 1932 calling upon her to repair the chancel. She disputed the liability, and the plaintiff subsequently brought proceedings against the defendants, pursuant to section 2(2) of the 1932 Act, to recover the cost of the chancel repairs. On a preliminary issue the judge held that the defendants were liable for the cost of the repairs. The Court of Appeal allowed the defendants appeal and held that the plaintiff could not recover the cost of chancel repairs from the defendants on the grounds that a parochial church council was a public authority for the purposes of section 6 of the Human Rights Act 1998 since it had powers unavailable to private individuals to determine how others should act, that therefore it could not act in a manner which was incompatible with the defendants’ rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the defendants’ liability to defray the cost of chancel repairs was in indiscriminate form of taxation and amounted to an infringement of their right to peaceful enjoyment of their possessions guaranteed by article 1 of the First Protocol to the Convention and unlawful discrimination as between landowners contrary to article 14.
In allowing the appeal by the Plaintiff it was held:
(1) that a ‘public authority’ for the purposes of section 6 of the 1998 Act could be either a core public authority which exercised functions which were broadly governmental so that they were all functions of a public nature, or a hybrid public authority some of whose functions were of a public nature; that although the Church of England, as the established church, had special links with central government and performed certain public functions, it was essentially a religious organisation and not a governmental organisation, and parochial church councils were part of the means whereby the Church promoted its religious mission and discharged financial responsibilities in respect of parish churches; that the functions of parochial church councils were primarily concerned with pastoral and administrative measures within the parish and were not wholly of a public nature, and therefore they were not core public authorities under section 6 (1); that (Lord Scott of Foscote dissenting) the fact that the public had certain rights in relation to their parish church was not sufficient to characterise the actions of a parochial church council 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 section 6 (3) (b); that the defendants’ chancel repair liability was a private law liability arising out of the ownership of the land, and the enforcement of that liability by the plaintiffs was an act of a private nature and therefore excluded by section 6 (5) from coming within the ambit of section 6 (3) (b); that (per Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry) in seeking to enforce the defendants’ chancel repair liability the plaintiff was acting under primary legislation, namely section 2 of the 1932 Act, and was consequently within the exception in section 6(2)(b) of the 1998 Act; that therefore, there were no grounds upon which the plaintiff could be regarded as a public authority within section 6 of the 1998 Act; and that accordingly, it had no obligation to act compatibly with Convention rights.
(2)That (per Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote) a person’s right to peaceful enjoyment of his possessions did not extend to the grant of relief from liabilities incurred under the civil law; that the defendants had acquired the rectorial property with full knowledge of the potential liability for chancel repair that the acquisition would carry with it; that it was a burden which ran with the rectorial land and was similar to any other burden which ran with the land; and that the defendants were not therefore being discriminated against as compared with other owners of rectorial land, nor were they subjected to an arbitrary form of taxation or being interfered with in the peaceful enjoyment of their possessions contrary to article 14 of, and article 1 of the First Protocol to, the Convention.
Decision of the Court of Appeal [2002] Ch 51; [2001] 3 WLR 1323; [2001] 3 All ER 393 (2001) 6 Ecc LJ 172 reversed and first instance decision of Ferris J (2000) 5 Ecc LJ 494 reinstated.
The foregoing summary is taken from the headnote to the report of the case at [2003] 3 WLR 283 and is reproduced with permission of the Incorporated Council of Law Reporting.
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