Imposition of Chancel Repair liability contrary to Human Rights Act

In a much publicised case last year, a couple found themselves liable for a bill for GBP 95,000 for repairing the local church's chancel. Mr and Mrs Wallbank had purchased Glebe Farm which was classified as a rectorial property and because of their ownership, Mr and Mrs Wallbank became lay rectors.

In 1994 the parochial church council served a notice in accordance with the Chancel Repairs Act 1932 stating that the chancel of the church was in disrepair. The notice called upon the Wallbanks to put the church into good repair at a cost of over GBP 95,000. Mr and Mrs Wallbank mounted a defence to the claim which included the objection that to hold a lay rector liable for chancel repair would involve a contravention of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). The defence was unsuccessful and so they lodged an appeal.

In Aston Cantlow -v- Wallbank [2001] AllER (D) 212 (May) the Court of Appeal held, on 17th May 2001, that because the parochial church council was a public authority within the terms of the Human Rights Act 1998, its acts had to be compatible with the rights contained in the European Convention on Human Rights. It was an authority because it possessed powers that ordinary individuals did not possess and it was public in the sense that it was created and empowered by law.

The Court held that the modern liability of lay owners to pay for or contribute to the cost of repair to the chancel of a parish church was a form of taxation. Article 1 of the First Protocol to the Convention provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions. The arbitrary manner in which the Chancel Repair liability system operated did not meet the standard required by Article 1. Further, the way in which the common law singled out the owners of particular land within a parish was unjustifiably indiscriminatory and was therefore a breach of Article 14, which provides a right to freedom from discrimination in respect of the rights protected by Convention.

This decision will be most welcome to property owners faced with a potential claim. There is no chancel repair liability register as such. The records held by the Public Records office are available by appointment only and are not complete. It is therefore difficult to ascertain if liability attaches to a property you intend to purchase. Subject only to an appeal being made to the House of Lords, this decision brings an end to common law liability for chancel repairs.

For further information, please contact Richard Hanson at richard.hanson@cms-cmck.com or on +44 (0)20 7367 2903 or Caroline Potter at caroline.potter@cms-cmck.com or on +44 (0)20 7367 2721.