Ecclesiastical law

Category: Chancel Repair

Chancel Repair: Ecclesiastical Duty and Financial Liability

It seems that, in the case of Hauxton Parochial Church Council v Stevens (1929) Probate 240, Mr Stevens, the lay rector, was imprisoned for contempt after neglecting the admonition of the ecclesiastical court to repair the chancel of his parish church (House of Commons Official Report volume 264, column 521).  However, neither the ecclesiastical court nor the secular court could force the lay rector to pay for the repair by the usual civil enforcement procedures (bailiffs etc).

The Chancel Repair Act 1932, which was passed in the wake of the Hauxton case, sought to enforce the lay rector’s liability, where it still existed, by conferring a civil jurisdiction on the secular courts.  However, that jurisdiction was not very clearly expressed in the 1932 Act.

The 1932 Act was first examined in Wickhambrook Parochial Church Council (‘PCC’) v Croxford (1935) 2 King’s Bench 417.  Mrs Croxford was one of several lay rectors of Wickhambrook church.  She received tithe rentcharge of £39.  The chancel required repairs costing £123.

The PCC sued Mrs Croxford under the 1932 Act for the entire cost of the repairs.  The county court dismissed the PCC’s claim on the ground that Mrs Croxford could not be liable to repair the chancel because she had not sufficient tithe income to pay for it.

The PCC appealed and was successful.  The Court of Appeal agreed that Mrs Croxford was liable to pay £123, even though her tithe income was only £39.  (To mitigate hardship, it stipulated a payment by instalments.)

The question of liability turned on the interrelation of the ecclesiastical law governing chancel repair and the 1932 Act.  Under ecclesiastical law the rector had the duty to repair the chancel, physically to do the work.  This is not quite the same as a liability to pay the cost of repair.  The distinction between ecclesiastical duty and financial liability is important.

S.2(3) of the 1932 Act provides that the secular court ‘if it finds that the [rector] would … have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court’ must order him to pay the entire cost of the repair.   The secular court has no discretion to inquire further into the case.  If the lay rector would have been liable to admonition by the ecclesiastical court to do his ecclesiastical duty, he is liable to pay the costs of repair.

The Court of Appeal concluded that Mrs Croxford would have been liable to be admonished to repair.  In reaching this conclusion the Court construed s.2(3) thus:

‘the only question … is whether the [ecclesiastical] court had the power to [admonish].  The word ‘liable’ shows … that the question … is whether the defendant could, consistently with the [ecclesiastical] law, have been admonished and not … whether the defendant would in fact have been admonished in the particular case’ (p.440).

The county court had taken the opposite view.  It apparently accepted that Mrs Croxford could have been admonished by the ecclesiastical court, but found that she would not have been, for two reasons.  First, she did not have sufficient funds to carry out the repairs.  Second, she was not the only lay rector.  The PCC could have pursued the other lay rectors for the cost of repairs, as well as Mrs Croxford, but it chose to proceed against Mrs Croxford alone.

Thus the county court held that ‘an ecclesiastical court, sitting as a court of conscience as well as a court of law, would have declined to [admonish Mrs Croxford]’ (p.424).

It is argued that the county court’s interpretation of s.2(3) was correct.  The Court of Appeal’s ‘rigorist’ interpretation suggests that a lay rector will be liable to pay the cost of repair, even if he would not have been admonished by the ecclesiastical court.  It therefore imposes a greater burden on the lay rector than did the ecclesiastical law.  Instead of merely enforcing a pre-existing duty, it lays down a new and stricter basis of liability.

The ecclesiastical court would have admonished a lay rector who wilfully refused or neglected to perform his duty.  It would surely not have admonished a lay rector who was unable to perform his duty for lack of funds.  Yet the Court of Appeal decided that the lay rector must pay the whole cost of repair, regardless of means to do so.

This raises the question of the extent or measure of the lay rector’s liability to pay for repair.  The 1932 Act translated a physical duty into a financial liability. 

The county court held that Mrs Croxford would not have been admonished by the ecclesiastical court.  It concluded from this that she should not be required to pay anything at all and should be allowed to retain her tithe income when the chancel stood in need or repair.

This decision was clearly unsatisfactory.  However, the Court of Appeal went to the opposite extreme, holding that a lay rector’s liability was not limited to his tithe property but was an unlimited personal liability.

In reaching its conclusion on the extent of liability, the Court of Appeal reviewed the existing ecclesiastical law.  Phillimore had suggested that a lay rector was only liable to be admonished if he had sufficient tithe income to repair the chancel, thus supporting the county court’s decision on Mrs Croxford’s liability.

The Court of Appeal rejected Phillimore’s dictum.  It considered that he did not take account of the position where, as in this case, there were several lay rectors.  ‘The parties sued might escape [liability] because of the insufficiency of their [individual] receipts, although the total receipts … might be sufficient to attract liability’ (p.431).  It rejected the contribution rules suggested by Phillimore to settle liability between lay rectors as ‘very unsatisfactory and illogical’.

Instead the Court of Appeal turned to other authorities.  It found that they contain ‘no trace of any condition limiting the liability of the lay rector’ (p.436).  On this basis it concluded that ‘the liability of a lay rector is personal and is not limited to the amount of his receipts …’ (p.437).

Yet the Court of Appeal misunderstood these authorities.  That they did not expressly limit liability did not justify the conclusion that liability was personal and unlimited.  As discussed, the pre-1932 ecclesiastical courts were concerned to enforce a physical duty, not a financial liability.  Therefore they were not concerned to establish the extent of a liability which they had no jurisdiction to impose.

The Court of Appeal referred to a case in which a bishop had ordered the sequestration of the tithes of a spiritual rectory to secure repair of the chancel (p.435).  The fact that sequestration was limited to the tithes actually supports the view that rectorial liability was limited to the property held by the rector qua rector.

The ecclesiastical court’s power to order sequestration was, of course, limited to spiritual rectors (clergy).  It had no power to order sequestration against a lay rector.  It was for this reason that the Chancel Repair Act 1932 was enacted.  However, even the power over the clergy was limited to property held ex officio.  A clergyman’s private or family property would have been beyond the reach of the ecclesiastical courts.  Thus, even if sequestration could lawfully extend to all  benefice property, glebe as well as tithe, to secure the repair of the chancel, it still did not impose an unlimited personal liability.

The 1932 Act was carelessly drafted, but it should not have been difficult to interpret it so as to achieve a just result in this case.  An ecclesiastical court would not have admonished a lay rector who was willing to perform his duty but lacked the tithe income to do so.  A conscientious lay rector who cannot fully perform his duty will perform it cy pres, by offering such tithe income as he has towards the repair of the chancel.

Thus it is argued that a secular court should conclude that, provided the lay rector has paid over his tithe income to the PCC, or into court, he would not have been liable to be admonished by an ecclesiastical court and so should not be subject to further liability.

However, the decision in Croxford was upheld by the House of Lords in Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37.  Mr and Mrs Wallbank were owners of Glebe Farm (the name is significant).  As such, they were lay rectors of Aston Cantlow church.  The estimated cost of chancel repair was £95,000, vastly more than Mrs Croxford’s liability.

The liability to repair the chancel had, apparently, been attached to Glebe Farm under a private Act of Parliament of 1743.  As a result of this Act the parishioners gave land to the then rector in return for the extinguishment of their liability to pay tithes to him.

This arrangement was to their mutual advantage.  The parishioners ceased to be burdened with tithes.  The lay rector was relieved of the administrative burden of collecting the tithes from the parishioners.

Glebe Farm was part of the land given to the rector in 1743.  The Wallbanks were aware that Glebe Farm carried the liability to repair the chancel when they acquired it.

The House of Lords held the Wallbanks liable for the full cost of the chancel repairs.  They rejected arguments that the liability was unenforceable because it contravened the Wallbanks’ human rights.  Although the House of Lords questioned the soundness of the Croxford decision, they did not overrule it. 

This was doubly unfortunate for the Wallbanks.  Not only did their human rights claim fail, but their counsel’s preoccupation with the human rights claim meant that the question of the common law liability was neglected and the opportunity to overrule Croxford was missed.

There was some uncertainty about the conveyancing history of Glebe Farm.  The very name of the property suggested that it comprised rectorial glebe, not rectorial tithe.  Ecclesiastical law suggests that a rector is required to defray the cost of chancel repair from his tithe, not his glebe.  The glebe is for his personal maintenance.  All previous reported cases on chancel repair concern either tithe property only, or property comprising both glebe and tithe.

If the Wallbanks’ property comprised only glebe it is arguable that it did not carry the liability for chancel repair at all.  If the issue had arisen, the burden of proof would have been on the PCC to establish that the land represented tithe rather than glebe.

The historical facts of the Wallbank case reinforce the view that the Croxford rule of unlimited personal liability is flawed.  The rector in 1743 would never have accepted the tithe commutation land on the understanding that he faced financial ruin if the profits proved insufficient to pay for the repair of the chancel.  It is also unlikely that the parishioners sought to impose unlimited liability on the rector when they made over their land to him.  They merely wished to be free of the obligation to pay tithes.

The PCC and Public Authority: The Wallbank Case

Editorial, Ecclesiastical Law Journal (Issue 34, January 2004, pp247-8)

The learned editor appeared for the parochial church council (‘PCC’) in the case of Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37, as junior counsel. 

The case seems to have been fiercely contested.  Its outcome was an unqualified victory for the PCC and the Church of England.  The House of Lords ruled that Mr and Mrs Wallbank, as lay rectors, were liable for the repair of the chancel of Aston Cantlow parish church.  It further held (though with a hint of reluctance) that that liability was an unlimited personal liability.  It did not attach only to the profits of the rectorial property (if any), but to every last penny that the lay rectors possessed.

In giving his account of the case, the editor does not dwell on its disastrous consequences for Mr and Mrs Wallbank.  Instead he concentrates on the conclusion in the case (held by a majority of the Law Lords, but not by Lord Scott or the Court of Appeal) that a PCC is not a public authority for the purposes of the Human Rights Act 1998.

The editor attaches great significance to this conclusion.  ‘The importance of the House of Lords’ decision for the Church of England lies not in the provisions of the Chancel Repair Act 1932 [which had impacted so adversely on Mr and Mrs Wallbank] but rather in the discussion of the nature of the Church itself and its place in society and government’ (p.247).

The Human Rights Act enables ‘victims’ to go to court to vindicate their human rights against oppressive public authorities.  A public authority cannot be a ‘victim’, only an ‘oppressor’.  The editor’s point is that, if PCCs had been held to be public authorities under the Human Rights Act, they would ‘lose the status of ‘victim”.  They would therefore be unable to claim breach of human rights against a secular public authority.

The ‘human right’ most obviously associated with the Church is the right to practice one’s religion.  On the editor’s view the Wallbank case is an important safeguard of Anglican religious freedom.  ‘Not being classified a public authority, the Church of England will remain free to engage in its mission and witness … on an equal footing with all other denominations and faith communities in the UK’ (p.248).

The reference to ‘an equal footing’ makes the point that non-Anglican Churches and ‘faith groups’, being constituted on a voluntary basis only rather than ‘established by law’, would not be in danger of being considered public authorities under the Human Rights Act.

It is argued that this exegesis of the Wallbank case is somewhat farfetched.  The PCC’s functions do include ‘co-operating with the incumbent in promoting in the parish the whole mission of the Church’ (PCC (Powers) Measure 1956, s.2(2)(a)).  Of course it is possible to imagine a secular authority taking some action or decision that would impede a PCC’s missionary work.

However, the PCC’s missionary function, indeed all its legal functions, are exercised on behalf of, and for the benefit of, the parishioners, not itself.  Thus if the secular authority’s action impeded the PCC’s function and thereby infringed the parishioners’ right to practice their religion, the parishioners, not the PCC, would be the victims of this action. 

As victims, the parishioners (an individual parishioner or a group of parishioners) could bring a Human Rights Act claim against the secular authority, even if the PCC could not.  Indeed the members of the PCC could bring such a claim.  The only possible restriction of their ‘human rights’ is that they would have to bring a joint claim in their own names, rather than in the corporate name of the PCC.

If the secular authority’s action were to impede the PCC’s function but without infringing the human rights of the parishioners, there is no reason why the PCC should be enabled to bring a Human Rights Act claim.  Judicial review is always available to the PCC if a secular authority exceeds or abuses its powers.  (A public authority can apply for judicial review of the action of another public authority.)

The Enforcement of Chancel Repair

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).