Representative Body of the Church in Wales v Tithe Redemption Commission
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Macmillan,Lord Wright,Lord Porter,Lord Simonds |
| Judgment Date | 24 May 1944 |
| Judgment citation (vLex) | [1944] UKHL J0524-1 |
| Date | 24 May 1944 |
| Court | House of Lords |
[1944] UKHL J0524-1
House of Lords
Lord Chancellor
Lord Macmillan
Lord Wright
Lord Porter
Lord Simonds
After hearing Counsel, as well on Tuesday the 18th, as on Wednesday the 19th, Thursday the 20th, Friday the 21st, Monday the 24th, Tuesday the 25th and Wednesday the 26th, days of April last, upon the Petition and Appeal of the Representative Body of the Church in Wales, whose Office is at 39 Cathedral Road, in the City of Cardiff, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 20th of April 1943, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the Premises as to His Majesty the King, in His Court of parliament, might seem meet; as also upon the printed Case of The Commissioners of Church Temporalities in Wales and The University of Wales, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 20th day of April 1943, complained of in the said Appeal, be, and the same is hereby Reversed: and that the question raised by the originating summons should be answered by saying that, upon the true construction of the Welsh Church Acts 1914 and 1919, the tithe rentcharges which were formerly vested in the Ecclesiastical Commissioners for England and which, if the Tithe Act 1936, had not been passed would have been transferable to the University of Wales under the Welsh Church Acts 1914 and 1919, by the Defendants the Commissioners of Church Temporalities in Wales, became and were immediately before the 2nd October 1936, vested in the said Defendants the Commissioners of Church Temporalities in Wales subject to the liability for the repair of chancels of churches to which such rentcharges were subject immediately before the vesting thereof in the Defendants the Commissioners of Church Temporalities in Wales: And it is further Ordered, That (by consent) there be no Costs of the Appeal to this House: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
These Appeals are from the decision of the Court of Appeal (Lord Greene M.R., Luxmoore and Goddard L.J J.) affirming an Order of the late Mr. Justice Bennett in an action commenced by Originating Summons in which the Tithe Redemption Commission were Plaintiffs and the Commissioners of Church Temporalities in Wales (hereinafter called the Welsh Commissioners), the Representative Body of the Church in Wales (hereinafter called the Representative Body), the Plymouth Estates Ltd. and the University of Wales were Defendants
The question formulated for decision in the Summons is whether upon the true construction of the Welsh Church Acts, 1914 and 1919, certain tithe rentcharges which were formerly vested in the Ecclesiastical Commissioners for England, and which, if the Tithe Act, 1936, had not been passed, would have been transferable by the Welsh Church Commissioners to the University of Wales under the Welsh Church Acts, 1914 and 1919, became under the said Acts and were immediately before the 2nd October, 1936 (the date when all tithe rentcharge was extinguished by the Tithe Act, 1936), vested in the Welsh Commissioners ( a) subject to the liability for the repair of chancels of churches to which they were subject or gave rise immediately before the vesting thereof in the Welsh Commissioners; or ( b) freed from the liability aforesaid.
The Welsh Church Acts, 1914 and 1919, provided for the disestablishment and partial disendowment of the Church in Wales, and the date of disestablishment was finally fixed at March 31st, 1920. At that date every cathedral and ecclesiastical corporation of the Church in Wales, whether sole or aggregate, was dissolved, and by section 3 of the Act of 1914 ecclesiastical courts and persons in Wales ceased to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales ceased to exist as law. I must return to this section at a later stage of this Opinion.
The method by which the partial disendowment was to be carried out was to vest in the Welsh Commissioners—a statutory body created by section 10 of the Act of 1914 and originally intended to be dissolved at the end of 1917—as from the date of disestablishment all Welsh ecclesiastical property of every kind, and then to impose on the Welsh Commissioners the duty of distributing various types of property to their prescribed recipients—on the one hand, to the Representative Body which represented the disestablished Church, and, on the other hand, to two classes of lay recipients, the Welsh County Councils and the University of Wales, according to the nature and incidents of the property taken from the Church. Broadly speaking, the Commissioners were to transfer to the newly created Representative Body all churches and ecclesiastical residences, all restoration funds and property derived from Queen Anne's Bounty, and all private benefactions, which last were defined to include gifts and the like made to the Church in Wales since the year 1662. It would appear from section 4, subsection (2) of the Welsh Church (Temporalities) Act, 1919, that among the property that might come to be transferred to the Representative Body was certain tithe rentcharge—presumably arising from private benefaction—but this is quite exceptional.
The great bulk of tithe rentcharge in Wales after vesting at disestablishment in the Welsh Commissioners was to be transferred in due course either to the Welsh County Councils or to the University of Wales according to the following rule. Out of the property not transferred to the Representative Body, the Welsh Commissioners were to transfer "any tithe rentcharge which was formerly appropriated to the use of any parochial benefice" to the Council of the County in which the land out of which such tithe rentcharge issues is situate. But tithe rentcharge which was not formerly appropriated to the use of any parochial benefice, but none the less vested in the Welsh Commissioners as from the date of disestablishment as being Welsh ecclesiastical property (such as was tithe rentcharge in Wales formerly owned by the Ecclesiastical Commissioners) was to be transferred by the Commissioners to the University of Wales.
It is convenient at this stage to point out that, in addition to the two varieties of tithe rentcharge mentioned above, there was also a third kind of tithe rentcharge the title to and devolution of which was not affected by the Welsh Church Acts at all. This was tithe rentcharge which had long ceased to belong to the Church and which at the time of the dissolution of the monasteries or later had by Royal grant or otherwise come into the possession of lay owners.
Generally speaking, down to the time of the disestablishment of the Church, an owner of any kind of tithe rentcharge in Wales was, in virtue of that ownership, under a personal obligation to maintain or to contribute to maintaining the chancel of the Church from whose parish the tithe rentcharge was derived.
The Tithe Act of 1936 extinguished all tithe rentcharge, whether in England or Wales, from October 2nd, 1936, and authorised the issue of tithe redemption stock for the compensation of the persons interested in a tithe rentcharge in respect of its extinguishment. The Act created a body called the Tithe Redemption Commission to carry out the purposes of the Act, and by section 31 it was provided that, in respect of the liability to repair arising from the ownership of a tithe rentcharge extinguished by this Act in respect of which redemption stock was to be issued, the Diocesan Authority (which in the case of Wales means the Representative Body) shall be entitled to receive a part of the stock to be issued in respect of the rentcharge equal to such a sum as may be reasonably sufficient, having regard to the condition of the chancel or building at the appointed day, to provide for the cost of future repairs thereof, and to provide a capital sum the income of which will be sufficient to ensure it against destruction by fire. Where two or more owners of rentcharges were involved in the liability to repair the same building, the Act provided for the apportionment of the stock issuable to the Representative Body from the two or more sources.
The practical importance of the question raised by the originating summons thus becomes clear. The tithe rentcharge which was vested in the Welsh Commissioners with a view to its being transferred to the University of Wales has been extinguished. When the Tithe Redemption Commission determines the amount of stock to be issued for compensation in respect of the extinguishment of any such tithe rentcharge, are the Welsh Commissioners entitled to receive the whole of such stock with a view to transferring it to the University of Wales, or does there attach to the ownership of the tithe rentcharge which has been extinguished a liability to chancel repair, with the result that the Representative Body will be entitled to receive so much of the stock as is needed to provide for this repair hereafter, while only the residue of the stock goes to the Welsh Commissioners for transfer to the University? To determine this issue, it is necessary to look at the situation as it...
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...That that is so is implicit in the decision of this House in Representative Body of the Church in Wales v Tithe Redemption Commission [1944] AC 228, the Welsh Commissioners case. The issue, which arose out of the disestablishment in 1914 of the Welsh Church, was whether tithe rent charges w......
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Parochial Church Council v. Wallbank et al., [2003] N.R. Uned. 194 (HL)
...That that is so is implicit in the decision of this House in Representative Body of the Church in Wales v. Tithe Redemption Commission [1944] A.C. 228, the Welsh Commissioners case. The issue, which arose out of the disestablishment in 1914 of the Welsh Church, was whether tithe rent charge......