Judgments - Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v Wallbank and another (Respondents)

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    84. The PCC is thus the creature of a statutory provision by what was then the National Assembly of the Church of England. It has only those functions, duties and powers which have been conferred on it by that or other legislation. It is part of the structure known as the Church of England but the Church of England is not itself a legal entity. The legal entities are the various office-holders and various distinct bodies set up within that structure.

    85. The Human Rights Act and s.6 do not contain any complete or general definition of the term "a public authority". Section 6 does however contain a secondary definition in sub-sections (3)(b) and (5) as including, in respect of acts which are not of a private nature, persons (or bodies) certain of whose functions are functions of a public nature. This secondary category has been described as "hybrid" public authorities. It requires a two-fold assessment, first of the body's functions, and secondly of the particular act in question. The body must be one of which at least some, but not all, of its functions are of a public nature. This leaves what by inference from subsection (3)(b) is the primary category, ie, a person or body all of whose functions are of a public nature. This category has conveniently been called by the commentators a 'core' public authority. For this category, there is no second requirement; the section potentially applies to everything that they do regardless of whether it is an act of a private or public nature.

    86. Is a PCC a 'core' public authority? The answer I would give to this question is that it is clearly not. Its functions, as identified above from the relevant statutory provisions, clearly include matters which are concerned only with the pastoral and organisational concerns of the diocese and the congregation of believers in the parish. It acts in the sectional not the public interest. The most that can be said is that it is a creature of a church measure having the force of a statute - but that is not suggested to be conclusive - and that some aspects of the Church of England which is the "established church" are of wider general interest and not of importance to the congregation alone. Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers. But the PCC itself does not have such public responsibilities nor are its functions public; it is essentially a domestic religious body. The fact that the Church of England is the established church of England may mean that various bodies within that Church may as a result perform public functions. But it does not follow that PCCs themselves perform any such functions. Even the monasteries of the established church in Greece, which has strong legal links with the state, such as the presence of representatives of the state on its governing body and direct financial links with the State, has been held not to be an emanation of the state for the purposes of the Convention: Holy Monasteries v Greece (1995) 20 EHRR 1.

    87. The Court of Appeal reached a different conclusion. I do not find their reasoning satisfactory. Neither Parliamentary material nor references to the law of judicial review assist on this question. The relevant underlying principles are to be found in Human Rights law not in Community law nor in the administrative law of England and Wales. The Strasbourg jurisprudence has already been deployed in the Opinion of my noble and learned friend Lord Hope of Craighead and I need not repeat it. The relevant concept is the opposition of the 'victim' and a 'governmental body'. The former can make a complaint; the latter can only be the object of a complaint. The difference between them is that the latter has a governmental character and discharges governmental functions. If there is a need to find additional assistance in construing s.6 of the Act, this is where it is to be found. The structure of the Act also supports the same conclusion. It is through s.7 and its reference to victims in s.7(1) and (7) that one gets from s.22(4) to s.6(1). Section 7 is drafted having regard to the Strasbourg jurisprudence; it would be inconsistent to construe s.6 in a manner opposed to that jurisprudence. The Court of Appeal's approach cannot be supported.

    88. In my opinion it has not been established that PCCs in general nor this PCC in particular perform any function of a public or governmental nature. If it is to be said that they do, I am unaware what specifically it can be said is that function. The Court of Appeal (in paragraph 34) said that the recovery of money under s.2 of the 1932 Act was the function which made the PCC a public authority. This is to be contrasted with the statement in paragraph 37 that the "power and, no doubt duty" to do so is a "common law" power. The nature of the person's functions are not to be confused with the nature of the act complained of, as s.6 makes clear. But in neither case are they governmental in nature nor is the body itself inherently governmental. It follows that in my opinion the PCC was neither a 'core' nor a 'hybrid public authority. On that basis the defence of Mr and Mrs Wallbank must fail.

    89. But, if I am wrong, and the PCC was a 'hybrid' public authority, the further question arises under s.6(5): Is the nature of the relevant act private? The act is the enforcement of a civil liability. The liability is one which arises under private law and which is enforceable by the PCC as a civil debt by virtue of the 1932 Act. The 1932 did not alter the preexisting law as to the obligations of lay impropriators. It is simply remedial (as the Court of Appeal recognised in paragraph 37). Its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried out. It is argued that it is akin to a power of taxation. Whether or not it was once true in the 16th century that such a power existed, it was certainly not true in the 20th century. Whatever the former obligations of lay impropriators may once have been, by the 18th century they were or had been converted into civil obligations. In the present case this occurred in 1743 as a result of an enclosure award made under a Private Act of Parliament of 1742 entitled "An Act for Dividing and Inclosing, Setting out and Allotting, certain Common Fields and Inclosures within the Manor and Parish of Aston Cantlow, in the County of Warwick". In return for financial and proprietorial advantages then conferred upon them, the impropriators accepted the obligation to repair the chancel as and when the need arose. That is the private law obligation which is being enforced in the present action using the remedy provided in the 1932 Act.

    90. The 1932 Act is irrelevant unless and until the lay impropriator fails to perform his obligation to repair the chancel, a failure which may have occurred on a single occasion or may, as in the present case, have been a continuing and cumulative failure over a long period of time. The responsibility for repairing the chancel was since 1743 an incident of the ownership of certain particular parcels of land. When Mr and Mrs Wallbank acquired the title to that land they assumed that responsibility to repair and the consequent liability in default if they should fail to discharge it. This was not a responsibility and liability which they shared with the public in general; it was something which they had personally assumed voluntarily by a voluntary act of acquisition which at the time they apparently thought was advantageous to them. From the point of view of both the PCC and the Wallbanks, the transaction and its incident were private law, non-governmental, non-public activities and not of a public nature. Again, this conclusion is adverse to the Wallbanks' defence.

Has there been a breach of Article 1 (and Article 14)?

    91. Article 14 (discrimination) is not a freestanding provision but has to be read in conjunction with the recognition of the rights conferred by other Articles. Therefore the material Article is Article 1 of the First Protocol which endorses the entitlement to the peaceful enjoyment of a person's possessions and prohibits depriving a person of his possessions, subject to certain qualifications. The word 'possessions' has been considered by the European Court of Human Rights, in particular in the cases of Marckx v Belgium (1979) 2 EHRR 350 and Sporrong v Sweden (1982) 5 EHRR 35. It applies to all forms of property and is the equivalent of 'assets'. But what is clear is that it does not extend to grant relief from liabilities incurred in accordance with the civil law. It may be that there are cases where the liability is merely a pretext or mechanism for depriving someone of their possessions by expropriation but that is not the case here. The liability is a private law liability which has arisen from the voluntary acts of the persons liable. They have no Convention right to be relieved of that liability. Nor do they have a Convention right to be relieved from the consequences of a bargain made, albeit some 200 years earlier, by their predecessors in title. They do not make any complaint under Article 6 or complain about the fairness of these legal proceedings. They cannot complain that they are being discriminated against. The only reason why they are being sued is because they are the parties liable. This defence also fails. The submission that there should be a declaration of incompatibility likewise fails.

    92. For the sake of completeness, it was clear that at all material times both they and their predecessors in title knew of the responsibility to repair or at least that it was asserted that they would be responsible if they acquired the title to the relevant land, an assertion which they have now admitted to be correct subject only to the Human Rights Act 1998. Further, they originally ran a case of waiver by the PCC which they have now accepted was rightly rejected. If they had had a legal defence it would have been recognised by the court and the action would have been dismissed. Their financial liability under the 1932 Act is not arbitrary. It arises from their failure to perform a civil private law obligation which they had voluntarily assumed.

The s.6(2) point:

    93. This point would only arise if I was wrong on all the preceding points. One therefore has to assume that the PCC is a public authority and the demand for payment is not of a private nature. In such circumstances, subsection (2) creates an exception to the application of subsection (1). The words of exception relevant to this case are "the authority was acting so as to give effect to or enforce" provisions of primary legislation. The primary legislation is the 1932 Act. Incontrovertibly the PCC were seeking to give effect to and enforce provisions of that Act. On the above-stated assumption, the PCC's act in suing the Wallbanks comes squarely within the exception. Paragraph (b) of the subsection is to be contrasted with paragraph (a) which is manifestly intended to cover cases where the public authority did not have any alternative but to act as it did (ie it was compelled to do so). Paragraph (b), on the other hand, covers situations where the public authority was empowered by legislation to act as it did and the intention of the legislation, whilst leaving open a measure of discretion, was that it should use the power provided. For some unstated reason, the Court of Appeal treated only paragraph (a) as being relevant and this accounts for their mistaken decision on this point.


    94. It follows that, far from making out all three of the necessary constituents in their defence, the defendants have made out none. Their defence accordingly fails and the appeal must be allowed. There is no need to consider the retrospectivity question.


My Lords,


    95. The respondents, Mr and Mrs Wallbank, are the freehold owners of Glebe Farm, Aston Cantlow in Warwickshire. Glebe Farm, which consists of a farmhouse and about 179 acres of land, includes five fields amounting to just over 52 acres known, or formerly known, as Clanacre. The Clanacre fields, it is contended, were and remain rectorial property thereby constituting its owners for the time being lay rectors and subjecting them to the liability of paying for all and any necessary repairs to the chancel of St John the Baptist church, the parish church of Aston Cantlow.

    96. The appellants, the Parochial Church council of Aston Cantlow are responsible for supervising the care, maintenance, preservation and insurance of the fabric of the church (see s.4(1)(ii)(b) of the Parochial Church Councils (Powers) Measure 1956) and have served notices on Mr and Mrs Wallbank requiring them to put the chancel in proper repair. The notices were served on 12 September 1994 and 23 January 1996 pursuant to section 2 of the Chancel Repairs Act 1932. The cost of the necessary repairs is put in the notices at £95,260 odd. Mr and Mrs Wallbank dispute their liability. This litigation has resulted.

The law on chancel repairs

    97. A description, even a brief one, of the law on chancel repairs must, if it is to be comprehensible, start with mediaeval times when every parish had its parish priest, the "rector". The rector had, by virtue of his office, a number of valuable proprietary rights which, collectively, constituted his "rectory". These rights included the profits of glebe land and tithes, usually one-tenth of the produce of land in the parish. Responsibility for the repair of the parish church was, absent some special custom to the contrary (see Bishop of Ely v Gibbons (1833) 4 Hagg. Ecc. 156), shared between the rector and the parishioners. The parishioners were responsible for repairing the part of the church where they sat, the western end of the church. The rector was responsible for repairing the chancel, the eastern end of the church. The rector's glebe land and tithes, the "rectory", provided both for his maintenance and a fund from which he could pay for chancel repairs.

    98. The right of appointment to a rectory, the advowson, was an item of property transferable by conveyance and often in the hands of a lay person, typically the landowner who had built and endowed the church or his successors. But the appointee had to be a spiritual rector and, on appointment, would become entitled to the rectorial rights and subject to the chancel repair liability.

    99. In the 300 years or so prior to the dissolution of the monasteries under Henry VIII a great number of advowsons were acquired by monasteries. A monastery, having acquired an advowson, would almost invariably appoint itself the rector and thereby appropriate to itself the valuable rectorial rights, the rectory. It would, of course, be a spiritual rector. The parish would, however, need a parish priest. So the monastery would appoint a deputy, a vicar, to fulfil that role, usually allocating to the vicar some part of the rectorial tithes or glebe. It seems, interestingly, never to have been suggested that the vicar, by virtue of the allocation to him of some part of the rectory thereby became liable for chancel repairs. Vicarial tithes or vicarial glebe did not carry that liability which remained with the rector.

    100. On the dissolution of the monasteries under Henry VIII the property of religious houses, including their advowsons and the rectories they had appropriated, were compulsorily sold, impropriated, to lay institutions, such as Oxford and Cambridge colleges, and individuals. The lay institutions and individuals who acquired the rectories became lay rectors, or lay impropriators (the terms are synonymous) and, as such, subject to the chancel repair liability. The lay-rector may have, and usually had, also acquired the advowson and thereby become the patron and entitled to appoint the vicar of the parish. A vicar, thus appointed, was no longer a deputy but held office in his own right. The obligation to repair the chancel lay on the lay rector in that capacity and not as owner of the advowson.

    101. The proprietary rights acquired by lay rectors would have included the rectorial glebe and the rectorial tithes. These rights could be alienated and divided up. Many rectorial tithes were extinguished under Inclosure Awards made pursuant to Inclosure Acts. Under these Awards plots forming part of the common lands to be enclosed were allotted to lay-rectors in lieu of their rectorial tithes. It is generally assumed that the allotted lands then took the place of the tithes as the lay rector's rectorial property (see para 2.11 of the Law Commission's Working Paper No.86 "Transfer of land. Liability for Chancel Repairs," (1983).

    102. Tithes, other than those extinguished under Inclosure Awards, were converted into tithe rent-charges under the Tithe Act 1836. Tithe rent-charges, unlike their predecessor tithes, were charged on the land in respect of which the tithe had been payable and attracted the same chancel repair liability as had been attracted by the predecessor tithes— see s.71 of the 1836 Act which subjected the rent-charges to "the same liabilities and incidents as the like estate in the tithes commuted ….". Over the next hundred years various further statutory changes were made until, finally, the Tithe Act 1936 abolished tithe rent-charges and replaced them with tithe redemption annuities. The annuities were payable to the Government and the owners of the rent-charges received Government stock in compensation for the extinction of their rights.

    103. Section 31 of the 1936 Act and the 7th Schedule to the Act dealt specifically with chancel repairs. As to liability for chancel repair arising from the ownership of tithe rent-charges (evidently on the footing that the tithe rent-charge had taken the place of the tithes as rectorial property) a part of the Government stock to be issued in respect of that rent-charge was to go to the Diocesan Authority to provide for the cost of future repairs to the chancel and the cost of insuring against damage by fire (s.31(2)). Subsections (3) and (4) of section 31 merit mention. They provided, in conjunction with section 21 of the 1936 Act and section 1 of the Tithe Act 1839, that where the tithe rent-charge and the land on which it was charged were in the same ownership, the rent-charge would be treated as abolished by merger but the land would be subject to the chancel repair liability "to the extent of the value of …. the rent-charge" (s.1 of the 1839 Act). The chancel repair liability of the lay-rector became thereby limited to the value of the rectorial property, the rent-charge, from which his office of lay-rector was derived.

    104. It is clear that a lay rectorship and liability for chancel repair could attach to a person who had become owner of a part only of the rectorial property. 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 which, until abolished by the 1936 Act, had become temporally vested in the Commissioner of Church Temporalties in Wales (the Welsh Commissioners) pending their transfer to the University of Wales under provisions in the Welsh Churches Acts 1914 and 1919 had, while so vested, subjected the Welsh Commissioners to chancel repair liability. If the answer was 'Yes', Government stock needed to be issued to the appropriate Welsh authority pursuant to the Tithe Act 1936. Their Lordships held that the Welsh Commissioners, so long as they held the tithe rent-charges, were lay impropriators and accordingly under a chancel repair liability. The issue, which applied to a number of parishes in Wales, was examined by reference to a particular parish, Llanwit Major in Glamorgan. Tithe rent charges valued at £481. 7s.11d., representing rectorial property of the parish, were held by the Dean and Chapter of Gloucester. Other tithe rent-charges, valued at £64.4s.2d. and also representing rectorial property of the parish were held by a limited company, Plymouth Estates Ltd. Viscount Simon LC said that "Plymouth Estates Ltd plainly and admittedly remain liable for chancel repair" (p 239). He described the obligation of a rector to repair the chancel as "an obligation imposed by common law" (p 240 and see also Lord Wright at p 247). Lord Porter expressed himself to the same effect. He said, at p 249

    "Prima facie, therefore, if the tithe rent charge gets into the hands of a lay impropriator at anytime it is held subject to the liability to repair".

and that "…. impropriation exists where the property is in lay hands …." (p 250).

    105. But although it must now be regarded as settled law that an individual who becomes the owner of rectorial property of a parish becomes liable for chancel repair, there remain subsidiary issues which, in my opinion, are not settled. For example, the extent of the liability is not settled. Is the liability limited to the value of the rectorial profits the ownership of which has attracted the office of lay rector and the consequent chancel repair liability or is it unlimited in amount? I have already referred to the effect of section 31(3) and (4) of the Tithe Act 1936 whereby, by reference to section 21 of the 1936 Act and section 1 of the Tithe Act 1839, the chancel repair liability of a lay rector attributable to his ownership of a tithe rent charge which had merged in the land on which it was charged was limited to the value of the rent- charge. In Walwyn v Awberry (1677) 2 Mod. 254 a lay rector brought an action for trespass because the local Bishop had sequestered his tithes on account of his failure to obey an admonition to repair the chancel of the parish church. The issue was whether sequestration was an available remedy. It was held that it was not. Atkins J, at p 258 who disagreed on the sequestration point, said that

    "it was agreed by all, that an impropriator is chargeable with the repairs of the chancel; but the charge was not personal but in regard of the profits of the impropriation …."

This suggests that the liability is limited to the amount of the profits. A similar suggestion appears in the Report of the Chancel Repairs Committee presented by the Lord Chancellor to Parliament in May 1930 (Cmd 3571). The chancel repair liability was described in para 4(a) as

    "an obligation imposed by the Common Law of England, which annexes to the ownership of the rectory the duty of the rector to maintain the chancel of the church out of the profits of the rectory." (emphasis added).

As to the position where the rectorial property has passed to several owners, the paragraph said

    "…. every several owner is, to the extent of the profits derived by him from his piece of the property, under the duty of maintaining the chancel…." (emphasis added).

    106. In Wickhambrook Parochial Church Council v Croxford [1935] 2KB 417, however, the Court of Appeal decided otherwise. The defendants were lay-rectors of the parish of Wickhambrook by virtue of ownership of rent charge of £39.11s.9d. per year, a sub-divided part of a tithe rent charge of £120 per year. The cost of the necessary chancel repairs was estimated to be £123.12s.6d. It was this sum that the PCC sought to recover from the defendants. It was proved at trial that the total sum actually received by the defendants from their ownership of the rent-charge was £50 odd. The trial judge, relying on passages in Phillimore's Ecclesiastical Law (1895 ed.), held that it was necessary to prove that the impropriator had received tithes or other profits belonging to the rectory sufficient to cover the cost of repair (p 423) and, accordingly, that the PCC's claim failed. He was reversed on appeal. Lord Hanworth MR after examining various reports of Walwyn v Awberry expressed the view that the case was an unsatisfactory authority on which to found a limitation of a lay-rector's chancel repair liability (p 437) and concluded that "the liability of a lay impropriator is personal and is not limited to the amount of the receipts from the tithe". But he held that the defendants had a right of contribution from other owners of parts of the tithe rent charge. Romer LJ agreed with the Master of the Rolls, as too did Eve J who added that "the result does not appear to me to be reasonable or just".

    107. In the Welsh Commissioners Case [1944] AC 228, 239, Viscount Simon LC, having referred to the chancel repair liability of Plymouth Estates Ltd, said that

    "It is not necessary for the purposes of the present appeal to discuss the difficult question of the extent of their possible responsibility or whether Wickhambrook Parochial Church Council v Croxford was rightly decided."

    108. Counsel before your Lordships have not argued whether the Wickhambrook PCC case was or was not rightly decided. But if Mr and Mrs Wallbank are liable as lay-rectors, the question whether their liability should be limited to the profits they have received from the rectorial property may be open to them. The point is certainly still open in this House.

    109. A further point of law that cannot, in my opinion, yet be regarded as settled is whether each and every alienation by a lay-rector of impropriatorial assets of the rectory necessarily makes the alienee a co lay-rector and liable for chancel repairs. The point arose in Chivers & Sons Ltd v Air Ministry [1955] 1 Ch 585, 594 where Wyn-Parry J held that the liability to repair the chancel

    "…. is not a charge on the rectorial property, but a personal liability imposed on the owner or owners for the time being of the rectorial property."

and that

    "If there is more than one owner, each is severally liable."

For reasons which will appear, this is not a point which can have any bearing on the present case but, nonetheless, the conclusion to which the learned judge came may be open to question. Is it really the case that on every disposition of any part of former rectorial property, no matter how small and no matter what may be the intentions of the parties, express or implied, regarding the assumption by the transferee of chancel repair liabilities, the transferee becomes willy-nilly by dint of inflexible legal principle a lay impropriator liable to chancel repairs? I doubt it.

The conveyancing history of Clanacre

    110. At the time of the Inclosure Act 1742 and the Award of 1743, under which the common lands of Aston Cantlow were enclosed, Lord Brooke was the lay impropriator of the rectory of the parish church of Aston Cantlow. A recital to the Act so states. It appears from another recital to the Act that Lord Brooke was the owner of tithes and it appears from the terms of the Award that the impropriated property included glebe land.

    111. Under the Award Lord Brooke was allotted Clanacre. It was described as "one plot lying in Aston Cantlow…. called Clanacre combining (containing) …. 52 acres two roods and 21 perches". Details of its boundaries were given so that there could be no doubt as to the identity of what had been allotted.

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