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Chancel Repair Liability

Bryan Edgley, in his capacity as a farmer, was subjected many years ago to a claim for repair of the roof of the Chancel of a pre-Reformation church in the neighbouring county of Oxfordshire on the grounds that some of his fields carried an ancient liability.

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Some pre-reformation Parish Churches are entitled to call on the owners of specific nearby fields, known as the Rectoral Estate, to maintain the Chancel of the Parish Church in “wind and weather tight condition”. 
 
Bryan Edgley, in his capacity as a farmer, was subjected many years ago to a claim for repair of the roof of the Chancel of a pre-Reformation church in the neighbouring county of Oxfordshire on the grounds that some of his fields carried an ancient liability.
 
This case led to a debate at General Synod in February 1981 on the subject of Chancel Repair Liability, and that debate was followed by the publication in 1985 of the Law Commission Paper No. 152 entitled ‘Property Law, Liability for Chancel Repairs’. More recently special provisions for the registration of Chancel Repair Liability have been incorporated within the Land Registration Act 2002.

The subject of Chancel Repair legislation is of national importance, and a link to the full text of Bryan's guide is shown below: -
“Chancel Repair Liability, a Churchwarden’s Guide to Best Practice for Registration at HM Land Registry” 

Further Notes on Chancel Repair Records and Legislation

1. Oxford Diocesan Records

The Diocese is in the process of preparing a record of the Chancel Repair Liabilities which relate to the 623 parishes in the Diocese of Oxford. The Archdeacon of Oxford in consultation with the Archdeacons of Berkshire and Buckingham, stated in July 2010 that: “The record of Chancel Liabilities within the Diocese of Oxford is expected to be complete by the end of 2010 and so the figures quoted here are provisional but provide a good indication of the trends. So far responses have been received from three-quarters of the parishes. These indicated a total of about 60 parishes with Lay Rectors holding a liability, which is under ten per cent of the overall total of parishes in the Diocese. The large majority of these are with the Church Commissioners. On present figures, we expect the number of Lay Rectors who are private individuals such as farmers or private landowners to be approximately one per cent of the overall total of 623 parishes in the Diocese, that is a total of six or so. In addition, there are a significant number of parishes where the liabilities have already been commuted”.

2. National Records

No Schedule of Chancel Repair Liabilities exists for the Churches of England and Wales nationally. · HM Inland Revenue attempted to prepare a schedule seventy years ago. This Schedule was named the “Record of Ascertainments 1940”, but within it there were errors and omissions. This has been retained by The National Archives on microfilm.  The National Archives Legal Information Leaflet 33 is an excellent summary of the chancel repair liabilities which benefit some 5,200 pre-Reformation Churches in England and Wales. This 7 page Leaflet can be downloaded:- http://www.nationalarchives.gov.uk then ‘The Catalogue’ followed by ‘Research Guides’ then click on ‘Chancel Repairs’ within the alphabetical list. 

3. Resolution by Synod - February 1982

The then Archdeacon of Buckingham (now Bishop John Bone) spoke in favour of a Resolution put to General Synod in February 1982, calling for the abolition of Chancel Repair Liability which he described as being ‘arbitrary, inequitable and archaic’. Synod passed the Resolution, recommending that Chancel Repair Liability be phased out over a period of years, and that this decision be passed to the Law Commission.

4. Law Commission Papers

The Law Commission Working Paper No. 86 (Green Paper) entitled ‘Transfer of Land Liability for Chancel Repairs’ was published in June 1983. The writer was one of many respondents, all of whom are listed in Appendix C of the subsequent Law Commission (White Paper) Law Com. No. 152 published in November 1985 and entitled ‘Property Law, Liability for Chancel Repairs’. The White Paper included a draft Bill intended to “Make provision for ending the liability of lay rectors for the repair of chancels” after the end of 1995, thus recommending a 10 year period in which Parishes could ensure that their Lay Rectors had carried out their responsibilities of maintaining the Chancels for which they were responsible in “wind and weathertight condition”. This legislation was never enacted, perhaps the result of insufficient political pressure or perhaps because it could have been construed as inequitable that Parishes might have lost, without compensation, the benefit of a Lay Rector’s funds to which they had been previously entitled for the repair of the Chancel.

5. The Wallbank Case - Aston Cantlow

This much publicised case subjected the Wallbank family to two decades of legal wrangling, costing the family a total of £600,000, and forcing them to sell their family farm following an Appeal by the Aston Cantlow PCC to the House of Lords in 2003. Mrs. Wallbank’s late father had bought the farm in 1970 knowing that it carried the liability for repair of the Chancel of St. John the Baptist Church at Aston Cantlow. The purchase price paid for the farm reflected the burden of this liability to keep the Chancel in ‘wind and weathertight condition’. When the Aston Cantlow PCC first approached the Wallbanks in 1990 the Wallbank family offered to give to the PCC a 7 acre field as a matter of goodwill to settle the claim and commute the liability, but the PCC rejected that offer. The PCC then served a Notice, in 1994, on the Wallbanks under the 1932 Chancel Repairs Act. The legal process moved slowly but eventually the High Court, in February 2000, found in favour of the PCC. The Wallbanks then appealed successfully against the High Court ruling, as being in contravention of the Human Rights Act 1998. The Appeal Court judge described the High Court ruling as being ‘arbitrary and disproportionate’ and ruled that the Wallbanks were not liable for this repair of the Aston Cantlow Church chancel. Following this Appeal Court decision members of the Legal Advisory Committee for the Church of England (‘the LAC’) considered that the new ruling, which had reversed the earlier High Court ruling, would now deprive churches of their legal rights. Aston Cantlow PCC was therefore advised by the LAC to take the case to the House of Lords as the Court of final appeal, for which the PCC received assistance with its legal costs from the LAC. The Law Lords, in March 2003, found the PCC was not a public body and the church was not a public building, and that therefore the charge to the Wallbanks was not considered a tax and was not subject to Human Rights law. Thus the Appeal Court decision was reversed, with the new ruling that found in favour of the PCC, thereby confirming that the Wallbank family were indeed under their original legal obligation to repair the Chancel of Aston Cantlow Parish Church.

6. Institutional Lay Rectors

A majority of chancel repair liabilities burden institutional Lay Rectors, such as the Church Commissioners, The National Trust, and Oxford and Cambridge Colleges. Most of these institutions are aware of their liabilities, and indeed some are worried by them. Many of the Colleges have detailed records of their liability and their past expenditures, some going back over four or five centuries.

7. Land Registration Act 2002

Government recognised that Chancel Repair Liability was a serious flaw and complication to the sale or purchase of any property within England or Wales, affecting the owners of private houses and their gardens as well as farms and estates. Potential Chancel Repair Liabilities are not clearly defined on any schedule or records, so that many purchasers or their solicitors or their mortgagors now insist on indemnity insurance against Chancel Repair Liability being provided by the vendors of a property prior to its proposed sale. Diocesan Registrars are frequently called on by conveyancing solicitors for advice concerning rural properties situated close to pre-reformation churches. As a solution to this flaw Government inserted an additional clause within the provisions of the Land Registration Act 2002. Under this Act (which is not yet supported by Statute) all land in England and Wales will have to be registered at HM Land Registry before the end of September 2013, and all Chancel Repair Liabilities will have to be included within the property registrations both of the Churches benefitting from the liability and of the houses or fields burdened by the liability. Any Chancel Repair Liability which is not so registered will not be enforceable at law on any new owner of such registered land after October 2013.

8. 2010 Suggested Best Practice for Churchwardens

The writer recommends that:- The proposed compulsory Registration of all land in England and Wales at HM Land Registry before September 2013 should be welcomed by all Churchwardens as the means by which Chancel Repair Liabilities will be defined in the future on the Land Certificates of any land burdened by liability, and on the Land Certificate of any church benefiting from such liability. · More Diocesan Websites should give guidance on the subject. In this respect the Diocese of Edmundsbury & Ipswich gives good guidance on its website (http://www.stedmundsbury.anglican.org/) and the Diocese of Peterborough also publishes useful information, including a paper by Edward Nugee QC, on its website (http://www.peterboroughdiocesanregistry.co.uk/) . · Diocesan records should be completed (see Section 1 above) so as to identify Parishes in which a Lay Rector is responsible for Chancel Repair. · 

For Parishes with an Institutional Lay Rector:

Churchwardens in those Parishes which benefit from an Institutional Lay Rector should request their Diocesan Registrar to assist them to register that Institution’s Chancel Repair Liability at HM Land Registry. 

For Parishes with a Private Lay Rector: 

Concerning the relatively small number of churches in which there is one private Lay Rector, or in which there are many private Lay Rectors following sales of plots from the Rectorial Land, Churchwardens should request their Archdeacon to assist them and their PCC to resolve any uncertainties, bearing in mind that:-

  1. Liabilities resting on individual farmers, landowners or householders can cause unfairness or misunderstanding. Publicity adverse to the Church can follow.

  2. PCCs have a fiduciary duty to consider the pastoral and reputational consequences of their actions as well as protecting the PCC’s financial position.

  3. Commutation, arranged by the Lay Rector’s solicitor in consultation with the Diocesan Registrar of the relevant diocese, can provide a satisfactory solution.

  4. If, over the years, the PCC has failed in its own duty to record the Lay Rector in the Church Terrier, to ask the Lay Rector to insure his interest in the Chancel, to keep in touch with the Lay Rector and to hand to him a copy of each Quinquennial Architect’s Report, then the PCC is unlikely to gain from any attempt to unearth long lost liability.

  5. Time is relatively short, the cut off date for Land Registration being 30th September 2013. 


Bryan K. Edgley MBE FRSA Churchwarden Holy Trinity Church, Lane End 27th September 2010 

The author of this Guide, who is a Churchwarden of Holy Trinity, Lane End and was at one time a reluctant Lay Rector of St. Margaret, Lewknor, acknowledges with gratitude the very considerable encouragement and assistance which he has received over the years from the Rt. Revd. John Bone, sometime Archdeacon of Buckingham and later Bishop of Reading.  The author also acknowledges with thanks the assistance of the Archdeacon of Oxford in researching the subject from Oxford Diocesan Records, and for preparing in July 2010 the Archdeacons’ statement which is shown under Section 1 of the Guide. However the author wishes to emphasise that the Guide reflects his own personal view and opinion, that this does not necessarily reflect Oxford Diocesan policy, and that those involved with disputed cases of Chancel Repair Liability should seek specific legal advice from their own Diocesan Registrar or lawyer. 

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