Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank

A parochial church council constituted and empowered by law is a public authority when enforcing chancel repair liability against landowners. The Chancel Repairs Act 1932 changes the enforcement mechanism but does not compel recovery, so the statutory protection for acts required by primary legislation does not apply.

The liability is a tax on the owners’ personal funds. Its arbitrary incidence, uncertain amount and lack of a rational connection with the land’s value make it incompatible with Article 1 of the First Protocol. Singling out former rectorial glebe owners also amounts to unjustified discrimination under Article 14.

The appellants were the freehold owners of Glebe Farm and were treated as lay rectors liable to repair the chancel of Aston Cantlow parish church. The respondent parochial church council served notice requiring repairs and brought proceedings to recover the estimated cost.

Ferris J held the appellants liable on a preliminary issue. On appeal, the issues included whether the council was a public authority under the Human Rights Act 1998, whether its enforcement action was protected as compelled by primary legislation, and whether the liability was compatible with Article 1 of the First Protocol and Article 14 of the Convention.

Appeal allowed. The preliminary question was answered affirmatively, the judgments below were set aside, and the claim was dismissed.

1. The common-law obligation of a lay rector to repair the chancel remained the substantive basis of liability. The Chancel Repairs Act 1932 replaced ecclesiastical enforcement with notice and recovery proceedings, but created no substantive liability.
2. A parochial church council is a public authority for the purposes of section 6 of the Human Rights Act 1998. It is constituted as a statutory corporation, forms part of the established Church, possesses powers private individuals do not possess, and may enforce through the courts a liability imposed on persons who need not belong to the Church. The analysis of public authority is not confined to whether a body performs functions of a public nature; the body’s legal characteristics must be examined.
3. The section 6(2) protection for action required by primary legislation did not apply. The 1932 Act did not require the council to recover the cost from these owners. The relevant power and duty arose from the common law.
4. Money is a possession for Article 1 of the First Protocol. The chancel repair liability is a tax on the ownership of former rectorial glebe land, although the land itself remains undisturbed. Taxation must pursue a legitimate public interest by means that are not completely arbitrary or disproportionate. This liability was arbitrary because the historical connection with the rectory had disappeared, the land was indistinguishable from other freehold land, the liability could arise unpredictably, and its amount had no rational relationship to the land’s value or extent.
5. Alternatively, Article 14 was breached. The proper comparison was with other freehold owners, not merely with lay impropriators. Former glebe owners were singled out without a reasonable and objective justification or a proportionate relationship between the measure and the legitimate aim of maintaining historic church buildings.

• Court of Appeal: The appeal was allowed. The preliminary issue was answered affirmatively, the judgments below were set aside, and the claim was dismissed.
• High Court, Chancery Division: Ferris J held on 28 March 2000 that the appellants were liable for the cost of repairing the chancel.