Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] EWCA Civ 713 |
| Docket Number | Case No: A3/2000/0644 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2001 |
[2001] EWCA Civ 713
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
CHANCERY DIVISION (MR. JUSTICE FERRIS)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Vice-chancellorlord Justice Robert Walkerandlord Justice Sedley
Case No: A3/2000/0644
Mr. Ian Partridge (instructed by Eddowes Perry & Osbourne for the Appellants)Miss Sarah J. Asplin (instructed by Rotherham & Co. for the Respondents)
Judgment of the Court:
The appeal
The question in this appeal is whether the appellants, as the freehold owners of Glebe Farm and consequently as rectors of the rectory of Aston Cantlow, are in law liable to defray the cost of repairing the chancel of the parish church.
The issue has arisen in this way. The farmhouse stands on a field once known as Clanacre which was allotted by an inclosure award of 1743 to Lord Brooke in exchange for other land which he owned as lay impropriator of the rectory. For reasons explained below, this made Clanacre rectorial property, and its owners then and thereafter lay rectors of the parish. One of the legal obligations of a lay rector is to keep the chancel of the parish church in repair. The power to enforce this obligation rests with the parochial church council (PCC).
By 1990 the chancel of the church of St. John the Baptist, Aston Cantlow, was in serious disrepair. On 12 September 1994 the PCC served a notice in proper form upon Mrs Wallbank calling upon her to repair the chancel. Mrs Wallbank disputed her liability, with the result that proceedings were issued against her to recover the estimated cost, a sum of £95,260: 84. When it was found that Mr Wallbank was a joint freeholder, he was joined in the proceedings.
On 29 September 1999 Master Bragge ordered the trial of two preliminary issues. The first, concerning the existence of a customary liability in somebody other than the lay rector, has gone by common consent. The second was whether the liability of the lay rector to repair the chancel of the church or otherwise to meet the cost of repairs by reason of the provisions of the Chancel Repairs Act 1932 and the common law is unenforceable by reason of the Human Rights Act 1998 or otherwise.
On 28 March 2000 Ferris J, having heard argument on this issue, found for the PCC and held the defendants liable for the cost of the chancel repairs. The issue now comes before us by leave of Aldous LJ, who ordered a stay pending our decision.
At the time of the decision of Ferris J the Human Rights Act 1998 was enacted but not yet in force. The case for the defendants was accordingly put on the basis that, the law being in doubt, the doubt should be resolved compatibly with the United Kingdom's treaty obligation to observe the European Convention on Human Rights. Since then, on 2 October 2000, the Act has been brought into effect, with the consequence that before us the shape of the argument has changed significantly. At the outset of the appeal, without objection, we gave permission for the notice of appeal to be amended and a respondent's notice lodged, so that the issues as they now stand might be properly pleaded. They engage two important new questions: whether the PCC is a public authority within s.6 of the Act and, if so, whether its action in serving notice upon the defendants was unlawful by reason of Article 1 of the First Protocol, read either alone or with Article 14, of the Convention.
It is accepted by the PCC that these related issues are open to the defendants, notwithstanding that the impugned notice antedates the Human Rights Act, by virtue of ss. 22(4) and 7(1)(b) which permit a potential victim of a breach of a Convention right to rely on that right in any legal proceedings brought by a public authority whenever the act in question took place. We are aware that this construction of the Human Rights Act 1998 is at present contested, but we have accepted the concession because we consider it to have been rightly made. In brief, Parliament's intention in enacting the material provisions appears to us to have been the straightforward one that nobody should be able to attack a public authority for having violated the Convention before the Act brought it into force, but equally that no public authority should be able, once the Convention rights were in force, to continue to rely on earlier acts of its own which, though lawful, were incompatible with the Convention. The words "has acted … in a way which is made unlawful by s.6(1)", used as they are in a statute distinguished by its lack of technicality, are in our view entirely consistent with this meaning. The alternative, which will have been apparent to Parliament, is a continuing residue of non-compliant decisions of public authorities kept indefinitely in effect by their own antiquity. The point not having been the subject of argument, however, we refrain from developing it.
The historical liability for chancel repairs
In addition to the judgment of Ferris J, we have had the advantage both of well-informed submissions and of valuable synoptic material in the form of Professor John Baker's article "Lay rectors and chancel repairs" (1984) 100 LQR 181 and of Appendix B to the Law Commission's report Liability for Chancel Repairs (Law Com. 152, 1985), which reproduces the historical conspectus set out in its earlier working paper on the topic. It is possible in consequence to restrict this judgment to an outline. It is useful, however, first to be clear about nomenclature. The term canon law is properly applied to the law made by the churches for the regulation of legal matters within their competence (see Bray, "Canon law and the Anglican Church", The Anglican Canons 1529–1947 (1998), xxi ff.). Ecclesiastical law is a portmanteau term which embraces not only the canon law but both secular legislation and common law relating to the church.
"The law of the Church of England is part of the law of the land. As Uthwatt J stated in Attorney-General v Dean and Chapter of Ripon Cathedral [1945] 1 Ch. 239, 245: 'The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts'," (Hill, Ecclesiastical Law, 2 nd ed., p.1)
While some matters (for example defamation, probate and matrimony) have passed from the canon law to the general law, others have always been within the jurisdiction of the secular courts. Among the latter is the law governing church property (Bray, loc.cit.; but see also paragraph 13 below).
The liability of the rector of a parish to repair the chancel of the parish church (the nave commonly was, though it no longer is, the responsibility of the parishioners) has been known to the law from time immemorial. It was part of the medieval canon law and has been absorbed by the common law; but its form has changed radically over time. The rectory of a parish included the right to receive tithes (the surrender of a tenth) of the product of the labour of parishioners, and the whole produce of the rectorial glebe (land forming part of the endowment, other than the parsonage house and grounds). This income was for the rector's maintenance. A rectory also included the obligation to keep the chancel of the church in repair out of the same profits. It was these proprietary rights and concomitant repairing obligations which the word 'rectory' in its original usage connoted.
Many rectories in the course of the later middle ages became monastic property. The mechanism was for the monastery to acquire by royal licence the advowson (the right usually vested in lay persons of appointment to a rectory) and to use it to appoint itself to the rectory, with the benefit of its tithe income and glebe holdings. The cure of souls in the parish would thereafter be discharged by a vicar, that is to say a surrogate for the monastery. But the liability to repair the chancel vested in the monastery as rector along with the property rights.
Upon the dissolution of the monasteries in the reign of Henry VIII these rectories were given or (more often) sold by the Crown to lay persons or to lay corporations, frequently colleges. These became the lay rectors of parishes, entitled like their predecessors to the fruits of the rectory and bearing the associated burden of chancel repairs. Since the same lay impropriators (as they are called in ecclesiastical law) held the advowsons, lay rectories never fell vacant and became perpetual.
The major benefit of a rectory, tithe, has its own complex history; but it is enough for present purposes to say that no tithes now survive. They went first by voluntary commutation, then by statutory conversion under the Tithe Act 1836 into tithe rentcharges, and finally by extinction with compensation by the Tithe Act 1936. Glebe has undergone no such legal metamorphosis. Fate, as Professor Baker remarks (loc. cit.), had its own revenge in store for its lay impropriators. Spiritual rectors were relieved of the repairing liability in 1923. But wherever rectorial glebe has come through monastic hands to a lay rector it continues at common law to carry (subject to immaterial exceptions) the ultimate liability to repair the chancel of the parish church.
The penalty for breach of this obligation was admonition by ecclesiastical courts, followed if the breach continued by excommunication. If these spiritual expedients failed, the final resort was committal by the High Court for contempt of the ecclesiastical court.
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