The Enforcement of Chancel Repair

by Philip Jones

The Church of England’s Legal Advisory Commission has argued that the power conferred on the parochial church council (PCC) by the Chancel Repairs Act 1932, to enforce a lay rector’s liability to repair the chancel, ‘represents an asset of the PCC’, which the PCC is required to ‘protect and preserve’ (Opinion, October 2007).

The word ‘asset’ may suggest that the PCC’s ability to enforce the rectorial liability is a species of property, similar to a right of way or other easement over land.  It constitutes a ‘dominant’ right over the lay rector’s ‘servient’ property. 

However, the PCC has no legal estate in the chancel, nor in any other part of the parish church.  Indeed its power to acquire an interest in any land is limited (PCC (Powers) Measure 1956, ss.5 and 6).  It is therefore not in the same position as the owner of an easement.

It is not very meaningful to speak of the chancel repair liability as an asset of the PCC, when the PCC has no legal estate in the chancel.  It is true that the case of St. Edmundsbury v Clark (No.2) 3 All England Reports 902 held that the PCC has a right of way to the church and churchyard.  The PCC must also have a right of possession or occupation (as distinct from ownership) of the church, including the chancel, sufficient to discharge its legal responsibilities thereto.

However, as St. Edmundsbury makes clear, these rights are limited to the access necessary to the discharge of the PCC’s own legal responsibilities towards the church.  The 1932 Act, by contrast, is concerned with the discharge of the lay rector’s responsibility to the church, not the PCC’s.

If the lay rector’s liability can be said to constitute an ‘asset’, that asset belongs to the parish, or even to the Church of England generally, but not to the PCC.  Parish churches exist ‘for the purposes of religion and the worship of God’ (Griffin v Dighton and Davies (1864) 122 English Reports 767 at 771).  The lay rector’s liability exists to serve these purposes, and the Church is responsible for administering them.

It is true, however, that parish and Church have no legal personality, and that the lay rector’s liability can only be enforced by the PCC, or by the churchwardens if there is no PCC (1932 Act, s.4(1)).  Thus, in exercising its rights under the 1932 Act, the PCC acts on behalf of the parish/Church.  It acts as their agent or representative, but not as trustee of any property.

So what is the PCC’s duty towards the parish/Church?  The 1932 Act does not impose any obligation on the PCC.  It provides only that the PCC ‘may’ act to enforce the rectorial liability.  There is nothing in the wording of the Act to suggest that the PCC must do so.

PCCs are now constituted under the Parochial Church Councils (Powers) Measure 1956.  S.4 of the 1956 Measure provides that, subject to certain exceptions, the PCC has ‘the like powers, duties and liabilities’ that formerly belonged to the vestry and the churchwardens.

Before the 1932 Act, legal proceedings against a lay rector could be taken only in the ecclesiastical court.  The churchwardens, as officers of the ecclesiastical court and of the parish, might bring the proceedings.  Such proceedings were of limited effectiveness, because the ecclesiastical court could only impose spiritual sanctions against a defaulting lay rector.  It could ‘admonish’ the lay rector to do his duty, and excommunicate him for neglecting it.  However, it lacked the powers of enforcement available to the secular civil court (bailiffs etc).

Thus the purpose of the 1932 Act was to enable the lay rector’s liability to be enforced in the secular civil court.  However, though it provided for enforcement in the secular court, the 1932 Act also abolished proceedings in the ecclesiastical court for chancel repair (s.1).

Annual visitations are not affected by this latter provision.  A complaint can still be laid against a defaulting lay rector before the visiting archdeacon.  Such a complaint might draw attention to the existence of the rectorial liability, but could not per se lead to proceedings under the 1932 Act.

Moreover, one of the exceptions to the transfer of responsibilities in s.4 of the 1956 Measure relates to the ‘powers, duties and liabilities with respect to visitations’.  The churchwardens continue to act in visitations, not the PCC.  In consequence, any ‘duty’ to denounce a defaulting lay rector in a visitation belongs to the churchwardens, not to the PCC.

Thus any duty to take steps to enforce the rectorial liability only ever existed in ecclesiastical law, and belonged only to the churchwardens.  That duty (if it existed) was abolished by the 1932 Act.  As mentioned, the 1932 Act does not replace the churchwardens’ duty with a new duty on the PCC to enforce the rectorial liability.

S.7 of the 1956 Measure confers certain ‘miscellaneous powers’ on PCCs, in addition to the responsibilities inherited from the churchwardens and the vestry.  This includes ‘Power to frame an annual budget of moneys required for … the work of the Church in the parish, and to take such steps as they think necessary for the raising collecting and allocating of such moneys’ (s.7(1)).

This wording does not impose any duty to take action under the 1932 Act.  It refers to the usual fundraising activities undertaken by any charitable organisation.  Even if it could be said to include enforcement of the lay rector’s liability, the wording makes clear that this is a matter for the PCC’s discretion.  It does not impose a duty or liability, any more than does the 1932 Act.

There is case law which suggests that if a PCC incurs a liability without proper authority, the individual PCC members involved will be personally responsible for this (see for example Fell v Official Trustee (1898) 2 Chancery 44).  The courts will not assist churchwardens or PCC members who, over-anxious to fulfill their duties to take care of the church, exceed their authority.  However, there is a considerable difference between incurring a liability without authority and neglecting to take steps to enforce the liability of a third party.

Nor can it be argued that the secular court has some a priori power to require the PCC to take action under the 1932 Act.  Not only does the wording of the 1932 Act contradict this argument, the 1932 Act  itself would hardly have been necessary if such a power existed.  The 1932 Act was passed precisely because the secular court had no power to enforce ecclesiastical liabilities towards the parish church.

It must therefore be concluded that the PCC has no ‘duty’ cognisable in any secular court to exercise its power under the 1932 Act. 

This does not mean that nothing can be done about a PCC which neglects to exercise this power.  Just as the ecclesiastical courts used to impose sanctions against defaulting ecclesiastical officeholders, so modern ecclesiastical law provides sanctions, albeit of a rather different character.

Thus the Synodical Government Measure 1969 enables parishioners (or rather, the parish electors) to vote in new PCC members.  If the parishioners decline to take action, and the church falls into disrepair as a result, the Church authorities have wide powers under the pastoral legislation (now contained in the Mission and Pastoral Measure 2011) to dissolve or restructure the parish, and to close the church building.  As Chancellor Newsom observed, ‘the primary remedy for a badly neglected church is to make it redundant, since its parishioners have shown by their neglect that they have not cared to look after it’ (The Faculty Jurisdiction, 2nd edition, Sweet & Maxwell, London, 1993, p.98).