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Interesting, thanks. This document talks about a "rentcharge liability" of £735 and that "the appropriate proportion of the liability for repair of the above chancel is 1/176450".

In practice what does this mean - e.g. does it mean that one subject freeholders liability would roughly 57p for a £100,000 claim? If so you can see why they wouldn't bother with it. Plus how does the £735 feature?

£735 is the entire tithe rent charge that take the liability it will be split into four sections A which is the portion that has been paid off B which is the portion of liability taken by large entity for all enterity such as the church commissioners or Eton College, C and D are essentially the same (you really don't want to know the difference) which has been the portion of liability merged into the land.

A plot which could be numbered on the appropriate tithe map (or called Mr smith's land beside the river and hence untraceable) will be given a Rent tithe Charge due. This figure could be as much as a £1 old pounds and the portion of liability in this case will be 240/176450 or £13.60 per £10.000 of damage to the chancel. To pay this liability off would work out at around £50 assuming the Aston Cantlow £36,500 for an entire chancel is a figure to go by. To collect any money would cost a PCC £15 and to find and register this land before Oct 13th around £50 and now £90.

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Buyer beware indeed.

However none of the other examples given above would violate someone's Human Rights to freedom of religion (which includes freedom from religion), or in fact in any other way that I can see. They are also all direct properties of the land - subsidence is a physical property of the ground itself, rights of way are specific to the land not a charge on the owner - in direct contrast to Chancel Repair Liability which, as mentioned earlier, has been previously defined in law as:

Ah yes, It was the High court in the Wallbank saga that rejected the Article 9 of the Human court of human rights argument on the grounds there was no discrimination all lay rectors were treated equally regardless of religion using some European precedent on church tax. I think I need to hunt out the actual ruling since I am just looking at my notes.

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Thank you for that. It is additional evidence for me and the Legal Ombudsman that my solicitor when I purchased the property was negligent in failing to flag up the possibility of CRL.

My purchase was in late 2002 / early 2003. In your opinion should the Solicitor have had an awareness of a potential chancel repair liability at that date.

I think at that time the issue of CRL was starting to enter the mind set of interested people and it was then I started reading about it and decided I wanted nothing to do with a church with that (a great irony). An on the ball solicitor should have been concious of the issue but the CRL industry had not started and so I doubt it was part of the normal searches and at that time I believe people felt the Wallbanks might have won the case.

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Ah yes, It was the High court in the Wallbank saga that rejected the Article 9 of the Human court of human rights argument on the grounds there was no discrimination all lay rectors were treated equally regardless of religion using some European precedent on church tax. I think I need to hunt out the actual ruling since I am just looking at my notes.

Again, this information is not correct. The relevant documents are freely available from the House of Lords: http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/aston-1.htm

This case concerns one of the more arcane and unsatisfactory areas of property law: the liability of a lay rector, or lay impropriator, for the repair of the chancel of a church. The very language is redolent of a society long disappeared. The anachronistic, even capricious, nature of this ancient liability was recognised some years ago by the Law Commission: Property Law: Liability for Chancel Repairs (1985) Law Com No 152. The commission said 'this relic of the past' is 'no longer acceptable'. The commission recommended its phased abolition.

. . .

Conformably with this purpose, the phrase 'a public authority' in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the European Convention on Human Rights. Hence, under the Human Rights Act a body of this nature is required to act compatibly with Convention rights in everything it does. The most obvious examples are government departments, local authorities, the police and the armed forces. Behind the instinctive classification of these organisations as bodies whose nature is governmental lie factors such as the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest, and a statutory constitution: see the valuable article by Professor Dawn Oliver, 'The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act', [2000] PL 476.

. . .

For these reasons this appeal succeeds. A parochial church council is not a core public authority, nor does it become such by virtue of section 6(3)(B) when enforcing a lay rector's liability for chancel repairs. Accordingly the Human Rights Act affords lay rectors no relief from their liabilities. This conclusion should not be allowed to detract from the force of the recommendations, already mentioned, of the Law Commission. The need for reform has not lessened with the passage of time.

. . .

On this footing the other issues raised in this case do not call for decision. I prefer to express no view on the application of article 1 of the First Protocol to the Convention or, more specifically, on the compatibility of the Chancel Repairs Act 1932 with Mr and Mrs Wallbank's Convention right under that article. The latter was not the subject of discrete argument.

. . .

The principal Human Rights issues which arise are (a) whether Mr and Mrs Wallbank can rely upon an alleged violation of their Convention rights as a ground of appeal when both the act complained of and the decision which went against them at first instance took place before 2 October 2000 ("the retrospectivity issue"), (B) whether the PCC is a public authority for the purposes of section 6(1) of the Act ("the public authority issue") and © whether the act of the PCC in serving the notice under the Chancel Repairs Act 1932 on Mr and Mrs Wallbank was incompatible with their rights under article 1 of the First Protocol read either alone or in conjunction with article 14 of the Convention ("the incompatibility issue").

. . .

It has been held that acts of courts or tribunals which took place before 2 October 2000 which they were required to make by primary legislation and were made according to the meaning which was to be given to the legislation at that time are not affected by section 22(4): see R v Kansal [2002] 2 AC 69, 112, para 84; Wainwright v Home Office [2002] QB 1334, 1346A-1347C, paras 29-36. Section 3(2) states that the obligation in section 3(1) to interpret legislation in a way that is compatible with Convention rights applies to primary and secondary legislation whenever enacted. But the interpretative obligation in section 3(1) cannot be applied to invalidate a decision which was good at the time when it was made by changing retrospectively the meaning which the court or tribunal previously gave to that legislation. The same view has been taken where the claim relates to acts of public authorities other than courts or tribunals. Here too it has been held that the Act cannot be relied upon retrospectively by introducing a right of privacy to make unlawful conduct which was lawful at the time when it took place: Wainwright v Home Office [2002] QB 1334, 1347G-H, para 40.

. . .

In this case the act which section 6(1) is said to have made unlawful is the enforcement by the PCC of the liability for the cost of the repairs to the chancel. It is the enforcement of that liability that is said to be an unlawful interference with the personal property rights of Mr and Mrs Wallbank contrary to article 1 of the First Protocol. Service by the PCC of the notice on Mr and Mrs Wallbank under section 2(1) of the Chancel Repairs Act 1932 took place in September 1994, well before the coming into effect of the Human Rights Act 1998.

. . .

It is clear from these provisions that, for the purposes of this Act, public authorities fall into two distinct types or categories. Courts and tribunals, which are expressly included in the definition, can perhaps be said to constitute a third category but they can be left on one side for present purposes. The first category comprises those persons or bodies which are obviously public or "standard" public authorities: Clayton and Tomlinson, The Law of Human Rights, (2000) para 5.08. They were referred to in the course of the argument as "core" public authorities. It appears to have been thought that no further description was needed as they obviously have the character of public authorities. In the Notes on Clauses which are quoted in Clayton and Tomlinson, para 5.06, it was explained that the legislation proceeds on the basis that some authorities are so obviously public authorities that it is not necessary to define them expressly. In other words, they are public authorities through and through. So section 6(5) does not apply to them. The second category comprises persons or bodies some of whose functions are of a public nature. They are described in Clayton and Tomlinson as "functional" public authorities and were referred to in the argument as "hybrid" public authorities. Section 6(5) applies to them, so in their case a distinction must be drawn between their public functions and the acts which they perform which are of a private nature.

. . .

For these reasons I would hold that the PCC is not a "core" public authority. As for the question whether it is a "hybrid" public authority, I would prefer not to deal with it in the abstract. The answer must depend on the facts of each case. The issue with which your Lordships are concerned in this case relates to the functions of the PCC in the enforcement of a liability to effect repairs to the chancel. Section 6(5) of the Human Rights Act 1998 provides that a person is not a public authority by virtue only of subsection (3) if the nature of the act which is alleged to be unlawful is private. The Court of Appeal said that the function of chancel repairs is of a public nature: [2002] Ch 51, 63, para 35. But the liability of the lay-rector to repair the chancel is a burden which arises as a matter of private law from the ownership of glebe land.

. . .

The incompatibility issue 65. This issue does not arise if, as I would hold, the PCC is not for present purposes a public authority. But I should like to offer these brief comments on it, as I do not agree with the Court of Appeal's finding that Mr and Mrs Wallbank's right to peaceful enjoyment of their possessions under article 1 of the First Protocol, read either alone or with article 14 of the Convention, has been violated: [2002] Ch 51, paras 38- 46.

. . .

"The argument for Mr and Mrs Wallbank seems to assume that the starting point is that they are to be regarded as the owners of Glebe Farm free from incumbrances or other burdensome incidents attached to the ownership of the land. But this is not in fact correct if the supposed rule represents the law. The liability to repair the chancel is, on that basis, one of the incidents of ownership of that part of Glebe Farm which consists of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is, of course, an unusual incident because it does not amount to a charge on the land, is not limited to the value of the land and imposes a personal liability on the owner of the land. But in principle I do not find it possible to distinguish it from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title."

. . .

How then does the liability arise? It cannot be considered in isolation from the obligation that gives rise to it. That is the obligation which rests on the owner of rectorial land, not as a result any outside intervention with the possession of the land by the state but as a matter of private law. The conveyance of Glebe Farm to Mrs Wallbank's parents in 1970 described the land as subject to the liability for the repair of the chancel mentioned in previous conveyances. Their deeds of gift to Mrs Wallbank in 1974 and 1986 also referred to the chancel repair liability. This is a burden on the land, just like any other burden that runs with the lands. It is, and has been at all times, within the scope of the property right which she acquired and among the various factors to be taken into account in determining its value. She could have divested herself of it at any time by disposing of the land to which it was attached. The enforcement of the liability under the general law is an incident of the property right which is now vested jointly in Mr and Mrs Wallbank. It is not, as the Court of Appeal said (para 40), an outside intervention by way of a form of taxation.

. . .

I recognise that Mr and Mrs Wallbank may well need to draw on their personal funds to discharge the liability. But they are not being deprived of their possessions or being controlled in the use of their property, as those expressions must be understood in the light of the general principle of peaceful enjoyment set out in the first sentence of article 1 of the First Protocol. The liability is simply an incident of the ownership of the land which gives rise to it. The peaceful enjoyment of land involves the discharge of burdens which are attached to it as well as the enjoyment of its rights and privileges. I do not think that in this case the right which article 1 of the First Protocol guarantees, read alone or in conjunction with article 14 of the Convention, is being violated.

. . .

The law relating to the liability for chancel repairs is open to criticism on various grounds. The liability has been described by the Law Commission as anachronistic and capricious in its application and as highly anomalous: Liability for Chancel Repairs (1985) (Law Com No 152), para 3.1; Land Registration for the Twenty-first Century (1998) (Law Com No 254; Cm 407), para 5.37. The existence of the liability can be difficult to discover, as most lay rectories have become fragmented over the years as a result of the division and separate disposals of land: Transfer of Land, Liability for Chancel Repairs (1983) (Law Commission Working paper No 86), para 2.29. The fact that it is a several liability may operate unfairly in cases where there is more than one lay rector and the person who is found liable is unable to recover a contribution from others who ought to have been found liable.

. . .

It is admitted by the defendants that, apart from the Human Rights Act 1998, they are, as the joint owners of Glebe Farm, Aston Cantlow, and have been at all material times personally responsible for the repair of the chancel of the church of St. John the Baptist Aston Cantlow and that, they having failed to repair the chancel, the Parochial Church Council (PCC) is entitled to a judgment against them under s.2(3) of the Chancel Repairs Act 1932 for such sum as represents the cost of putting the chancel into a proper state of repair. This is because the defendants, Mr and Mrs Wallbank, being liable to repair the chancel, would, but for the 1932 Act, have been liable to be admonished to repair the chancel by an ecclesiastical court. The obligation of the defendants is the obligation to repair. Under the 1932 Act the remedy of an order that the obligation be performed is no longer to be available and the monetary remedy is provided in lieu but the character of the obligation was left unchanged.

. . .

In fact the defendants knew that ownership of the land was believed to carry with it the obligation. It was referred to in all the title deeds and, in at least one conveyance, an express indemnity had been taken by the vendor. In other cases some special consideration might arise from the fact that the relevant landowner had acquired the title to the land without any notice of the existence, or possible existence, of the obligation. But that is not this case and it need not be discussed further.

. . .

The only defence now raised by the defendants to the claim of the PCC under the 1932 Act is based upon the Human Rights Act 1998 and/or the Convention. The 1998 Act had not come into force at the time when the defendants failed to carry out the relevant repairs, nor when the PCC served the notice required by s.2(1) of the 1932 Act, nor at the time when Ferris J tried the case and gave judgment for the PCC. He was formally trying two preliminary issues ordered by Master Bragge but, when he decided the human rights issue against the defendants, the defendants, having abandoned their case on the other issue, admitted that they had no defence to the claim except as to quantum. He accordingly made a declaration of liability, ordered an inquiry as to quantum and ordered the defendants to pay to the claimants the sum found due on the inquiry. The question of quantum arose under s.2(3) of the 1932 Act: "[the] court ... shall give judgment ... for such sum as appears to the court to represent the cost of putting the chancel in proper repair". The points which the defendants were taking on quantum were pleaded in paragraph 1 of the Outline Defence. The judgment of Ferris J was in English procedural law a final judgment. The defendants appealed to the Court of Appeal. By the time that the defendants' appeal was heard, the 1998 Act had however come into force.

. . .

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.

. . .

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.

. . .

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.

. . .

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.

. . .

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.

. . .

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.

. . .

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 Chancel Repairs Act 1932 was passed in consequence of the inadequacies of enforcement procedure revealed by litigation between Hauxton PCC and a Mr Stevens. Pre 1932 the enforcement of chancel repair liability was primarily a matter for ecclesiastical courts. Proceedings for the issue of an admonition requiring the alleged lay-rector to carry out the repairs had to be issued in the consistory court. It had been established by dicta in, if not by the ratio of, Walwyn v Awberry that ordinary civil law enforcement procedures were not available. If the consistory court issued the admonition and it was not obeyed, the next step would be either a decree of excommunication or a transfer of the proceedings to the High Court in order for proceedings for committal for contempt of court to be brought, or both. The unfortunate Mr Stevens, having unsuccessfully disputed his liability, ignored the admonition issued by the consistory court. He ended up in prison for contempt under a committal order made in the King's Bench Division. He obtained his release only on undertaking to carry out the requisite repairs.

. . .

The preliminary issue that was, and is, persisted in was subsequently amended and in its amended form is as follows: "Whether having regard to the provisions of the European Convention on Human Rights, a co-rector is liable to repair the Chancel of the Church or otherwise to meet the costs of the said repairs by reason of the provisions of the Chancel Repairs Act 1932 and the common law."

. . .

On this issue my noble and learned friends have come to the conclusion that the nature of enforcement of chancel repair liability is private. I have found this a difficult question but at the end have come to the opposite conclusion. I agree with Lord Hope that the answer to the question, whether an authority, not being a 'core' public authority, is, when exercising a particular function, exercising a function of a public nature, must depend upon the facts of the particular case (para 63 of his opinion). The important facts and matters relevant to the question in the present case seem to me, in no particular order of importance, to be the following: 1. The parish church is a church of the Church of England, a church by law established.

2. It is a church to which the Anglican public are entitled to have recourse, regardless of whether they are practising members of the church, for marriage, for baptism of their children, for weddings, for funerals and burial, and perhaps for other purposes as well.

3. Members of other denominations, or even other religions, are, if parishioners, entitled to burial in the parish churchyard.

4. The church is, therefore, a public building. It is not a private building from which the public can lawfully be excluded at the whim of the owner.

5. The PCC is corporate and its functions are charitable. Its members have the status of charity trustees. Charitable trusts are public trusts, not private ones.

6. A decision by a PCC to enforce a chancel repairing liability is a decision taken in the interests of the parishioners as a whole. It is not taken in pursuit of any private interests. If it were so taken, it would I think be impeachable by judicial review.

. . .

In my opinion, therefore, the question posed under this issue should be answered in the affirmative. It follows, if that is right, that in enforcing chancel repair liability, a PCC must not act in a manner incompatible with a Convention right. Is enforcement of chancel repair liability against Mr and Mrs Wallbank an infringement of their rights under article 1 of the First Protocol?

. . .

The chancel repair liability satisfies, in my opinion, the requirements of the article 1 exception: it is a liability created by the common law, it operates in the narrow public interest of the parishioners in the parish concerned and in the general public interest in the maintenance of churches. It is created by common law and is subject to the incidents attached to it by common law. And in the case of Mr and Mrs Wallbank they acquired the rectorial property and became lay rectors with full knowledge of the potential liability for chancel repair that that acquisition would carry with it. I can see no infringement of (or incompatibility with) article 1 produced by the actions of the PCC in enforcing that liability.

. . .

Nor, in my opinion, do Mr and Mrs Wallbank have any case of infringement of article 14. The comparators for article 14 purposes cannot possibly be persons who are not lay rectors. A person who is sued for £1000 that he owes is not discriminated against for article 14 purposes because people who do not owe £1000 are not similarly sued. A person who builds in breach of planning permission and has proceedings taken against him by the local planning authority is not discriminated against for article 14 purposes because a person who builds and has obtained planning permission is not sued. The comparators are not apt. The apt comparator in the present case would be a co lay rector who was liable for chancel repairs to the Aston Cantlow church but on whom no 1932 Act notice had been served. There is no case here of article 14 discrimination.

. . .

A final point before your Lordships was whether, if the PCC's enforcement of the chancel repair liability had constituted an infringement of Mr and Mrs Wallbank's Convention rights, the PCC could have relied on section 6(2)(a) or (B) of the 1998 Act. As to (a), it was contended that, as a result of section 2 of the 1932 Act, the PCC could not have done otherwise than enforce the chancel repair liability. In my opinion, this contention could not be sustained. Section 2 confers a power. It does not impose a mandatory duty. The PCC could have decided not to enforce the repairing obligation. They could have so decided for a number of different reasons which, in particular factual situations, might have had weight. They might, for example, have recommended the deconsecration of the church and its sale for conversion into a dwelling. They might have taken into account excessive hardship to Mr and Mrs Wallbank in having to find £95,000. Trustees are not always obliged to be Scrooge. Section 2 is not, in my opinion, a provision of primary legislation capable of engaging section 6(2)(a) of the 1998 Act. As to (B), it is not section 2 of the 1932 Act that produces the alleged incompatibility with Convention rights. Section 2 merely provides enforcement machinery for the obligation created by the common law. If section 2 had never been enacted the allegedly Convention infringing obligation to pay for chancel repairs would still have been present. Nonetheless, if the imposition by the common law of the obligation constitutes an infringement of Convention rights so, too, the use of section 2 for the purpose of enforcement would constitute an infringement. So I respectfully agree with my learned friends Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough that the PCC would be entitled to rely on section 6(2)(B).

. . .

My noble and learned friend Lord Scott of Foscote has described the origins and development of the liability for chancel repairs as well as the way in which that liability attaches to the owners of Glebe Farm. The law as it applies today can scarcely be regarded as satisfactory and may well cause real hardship to lay rectors who are called on to pay the cost of repairs to the chancel. Not surprisingly, the Law Commission have made proposals for the abolition of the liability over a period of time: Liability for Chancel Repairs (Law Com No 152, (1985)). Not altogether surprisingly either, Parliament has not yet acted on those proposals since abolition without compensation would cause significant financial harm to many ancient parish churches throughout England. This case highlights both aspects of the problem.

. . .

The key to the role of the PCC lies in the first of its general functions: co-operation with the minister in promoting in the parish the whole mission of the Church. Its other more particular functions are to be seen as ways of carrying out this general function. The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local. Founding on scriptural and other recognised authority, the Church seeks to serve the purposes of God, not those of the government carried on by the modern equivalents of Caesar and his proconsuls. This is true even though the Church of England has certain important links with the state. Those links, which do not include any funding of the Church by the government, give the Church a unique position but they do not mean that it is a department of state: Marshall v Graham [1907] 2 KB 112, 126 per Phillimore LJ. In so far as the ties are intended to assist the Church, it is to accomplish the Church's own mission, not the aims and objectives of the government of the United Kingdom. The PCC exists to carry forward the Church's mission at the local level.

. . .

In Hautanemi v Sweden (1996) 22 EHRR CD 155 the applicants were members of a parish of the Church of Sweden who complained of a violation of article 9 of the Convention because the Assembly of the Church of Sweden had prohibited the use of the liturgy of the Finnish Evangelical-Lutheran Church in their parish. Under reference to the judgment in the Holy Monasteries case, the Commission recalled article 25(1) (now article 34) of the Convention and observed, at p 155, that

  • "at the relevant time the Church of Sweden and its member parishes were to be regarded as corporations of public law. Since these religious bodies cannot be considered to have been exercising governmental powers, the Church of Sweden and notably the applicant parish can nevertheless be regarded as 'non-governmental organisations' within the meaning of article 25(1)."

Having held that, as members of the parish, the applicants could be regarded as victims in terms of article 25(1), the Commission added, at p 156:

"The Commission has just found that, for the purposes of article 25 of the Convention, the Church of Sweden and its member parishes are to be regarded as 'non-governmental organisations'. It follows that the respondent state cannot be held responsible for the alleged violation of the applicants' freedom of religion resulting from the decision of the Church Assembly ….. There has thus been no State interference with that freedom."

. . .

Moreover, the fact that, as part of its responsibilities in relation to the maintenance of the church fabric, the PCC may have to enforce a common law obligation against a lay rector who happens not to be a member of the Church can hardly transform the PCC into a public authority. Indeed, the very term "lay rector" is a reminder that the common law obligation which the PCC is enforcing is the last remnant of a set of more complex rights and liabilities that were ecclesiastical in origin. As Ferris J held, at para 23 of his judgment, today the liability to repair the chancel can be regarded as one of the incidents of ownership of rectorial property:

  • "It is, of course, an unusual incident because it does not amount to a charge on the land, is not limited to the value of the land and imposes a personal liability on the owner of the land. But in principle I do not find it possible to distinguish it from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title."

I respectfully agree. There is nothing in the nature of the obligation itself, or in the means or purpose of its enforcement, that would lead to the conclusion that the PCC of Aston Cantlow is exercising a governmental function, however broadly defined, when it enforces the lay rectors' obligation to pay for chancel repairs. Therefore, even when it is enforcing that obligation, the PCC is not to be regarded as a public authority for the purposes of section 6 of the 1998 Act.

The details of the case are contrary to what you have asserted and are in fact as follows:

a. Article 9 of the European Convention on Human Rights was never argued and no precedent has therefore been set in this regard (I can only assume the Wallbanks are CofE, in which case more fool them); as an Article 9 argument for freedom of religion and freedom from religion has never been made it has clearly also never been "rejected" on the basis of "no discrimination all lay rectors were treated equally regardless of religion"

b. The Wallbank's specific case was dismissed for four primary reasons that should have been obvious from the start, frankly I don't believe they were ever in a strong position to win the case because:

i) the liable parties were aware of the liability at the time of purchase and inheritance and therefore implicitly agreed to the liability by progressing with the purchase and failing to sell the inherited property

ii) the case was argued on the basis of the European Convention on Human Rights, Article 1 (specifically in regards to freedom to enjoy their possessions) and Article 14 (enjoyment of the freedoms and rights set out in said convention without discrimination on any grounds); clearly neither is at all applicable in this particular case given Article 1 does not protect against financial arrangements freely entered into and Article 14 is only applicable where it has successfully been argued that another Article has been violated and that this was done on a discriminatory basis; although some Law Lords chose not to comment on these arguments this is where the ruling of "no discrimination" comes into play, it does not have any bearing on Article 9 rights whatsoever

iii) the PCC was not deemed to be a "public authority", however some Law Lords argued that while this was the case the law involved was public rather than private, so while the majority say "not" there is currently dissent as to whether or not the PCCs (and the CofE in general?) are directly subject to the European Convention on Human Rights

iv) additionally the 1998 Human Rights Act was not in force when notice of the chancel repair liability was issued in 1994 and so far precedent suggests that it cannot be applied retrospectively, however some Law Lords decided not to comment on this issue or felt there was room for further arguments to be made

c. In a wider context beyond this case:

i) that the ruling might be quite different in cases where the liable party was not made aware of the liability at the time of purchase has already been acknowledged - "special consideration might arise from the fact that the relevant landowner had acquired the title to the land without any notice of the existence, or possible existence, of the obligation"

ii) the 1998 Human Rights Act is now in effect and clearly applies to any cases moving forward (whether it applies directly to the PCC or only indirectly to the courts is another matter however)

iii) courts and tribunals are expressly considered "public authorities" and subject to the European Convention on Human Rights, thereby making the decisions of the court in relation to the status of a liability unknown at the time of purchase subject to Article 9 rights; in fact the only ruling on Article 9 rights in relation to the actions of the Church Sweden specifically stated that in that particular case the reason why those rights were not upheld was specifically because there had "been no State interference with that freedom", thereby implying that they would be upheld where State interventions such as a judicial ruling were involved

iv) as opinion was not unanimous PCC's and the CofE in general may still be deemed to be subject to the European Convention on Human Rights in future rulings and therefore directly responsible for respecting Article 9 rights

v) chancel repair liabilities were not considered to be a charge on the land but in fact a personal liability on the owner of the land, and were quite clearly and repeatedly referred to as religious in nature, thereby enhancing an individual's ability to claim their personal Article 9 rights have been violated where they did not knowingly enter into the liability

vi) Chancel Repair Liabilities are not necessarily unlimited in amount and it may be possible to argue that they are limited to the amount of income possible to generate from the land or that the land has been so subdivided as to make any remaining liability charge essentially zero

vii) there is no obligation on the part of PCC's to pursue Chancel Repair Liability

vii) it may be possible to simply offer to do the building work yourself (thereby potentially annulling the liability if this is refused) as "1932 did not alter the preexisting law . . . its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried out"

I repeat: there is no precedent in law regarding liability that was unknowingly entered into by someone who is not a CofE believer

For anyone who's interested:

The Human Rights Act 1998 is available here http://www.legislation.gov.uk/ukpga/1998/42/section/6

The European Convention on Human Rights is available here http://www.hri.org/docs/ECHR50.html

And a good explanation of these rights is available here http://ukhumanrightsblog.com/incorporated-rights/

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vii) it may be possible to simply offer to do the building work yourself (thereby potentially annulling the liability if this is refused) as "1932 did not alter the preexisting law . . . its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried

So,

1 Is there any time limit to how long you take to make repairs?

2 Is there any definition of 'repair?'

3 Can the PCC just order up expensive repairs from ecclesiastical masons and send you the bill, or do they have to accept your version of 'repairs' (i.e. just make it watertight with any old material you please.

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Again, this information is not correct. The relevant documents are freely available from the House of Lords: http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/aston-1.htm

The details of the case are contrary to what you have asserted and are in fact as follows:

a. Article 9 of the European Convention on Human Rights was never argued and no precedent has therefore been set in this regard (I can only assume the Wallbanks are CofE, in which case more fool them); as an Article 9 argument for freedom of religion and freedom from religion has never been made it has clearly also never been "rejected" on the basis of "no discrimination all lay rectors were treated equally regardless of religion"

I am sorry you must have misread me but I said the High court and the ruling is found

here. I knew it was somewhere.....

As for Article 9 of the Convention relating to religious freedom, Mr Justice Ferris could not distinguish this from the position of a tenant of a property owned by the Church Commissioners and dismissed the case of Darby v Sweden cited which related to a municipal tax which included a tax fixed by the Church of Sweden and paid to the Church but which, if he lived in Sweden, would be reduced because he was not a member of that Church. His problem was that he worked in Sweden and lived in Finland. The Commission held by ten votes to three that his rights under Article 9 had been violated.

Ferris J. also dismissed the Article 14 argument that the Wallbanks had been discriminated against. He thought not, since all lay impropriators were liable to pay the repair liability.

Therefore he concluded that none of the Convention or Protocol rights had been violated and the Wallbanks had to pay the Church what they owed them

I agree though that Article 9 never reached the House of Lords or supreme court I suspect because the barristers thought it had no chance because of the practice in European countries of having church tax.

What more importantly the Wallbanks didn't argue was the principal of 'personal and several'since they only owned part of the land given for tithe. this fact or had only reached the appeal court (in the wichambrook and Croxford Case) I believe that after reading the History of tithe and the various changes in law they would have had a better argument on that part. Indeed one of the Law Lords almost said as much.

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vii) it may be possible to simply offer to do the building work yourself (thereby potentially annulling the liability if this is refused) as "1932 did not alter the preexisting law . . . its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried

So,

1 Is there any time limit to how long you take to make repairs?

2 Is there any definition of 'repair?'

3 Can the PCC just order up expensive repairs from ecclesiastical masons and send you the bill, or do they have to accept your version of 'repairs' (i.e. just make it watertight with any old material you please.

Before Aston Cantlow repair was thought to be little more than 'water and wind proof' but after Aston Cantlow it is considered to be substantial repair but not decoration which suggests the repairs have to be done correctly and since churches are covered by various planning laws making certain that repairs are done to the correct specification a Lay Rector would be obliged to follow those. The Lay rector has to be informed before the repairs start and there is a process laid out in the 1932 act.

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Dear bumpy there are certainly several large estates who acquired land on the cheap because of the liability these were admittingly sales back in the 1800's when CRL was a well known issue for the landed gentry at the time. These though are far more the exception than the rule but I am aware in vast majority of situations this is not true

And how much did the Church pay for the land in the Dark Ages after they raped the Anglo Saxon peasants.

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Further to my previous comment about article 9 it seems it was never taken to appealand so the last say on the matter is Mr Justice Ferrise in the High Court.

I still believe that the Humans Right act was the wrong angle in which to take it because the law applies to all religions or none it is a personal liability attached to a particular piece of land. a far more productive argument would have been based on questioning the concept of personal and several. Would the ecclesiastical courts admonished the Wallbanks or insisted that the PCC obtained the money in a more equitable way. One such authorities as the 1839 tithe act section 1 which states

In every case where any tithes or rent-charge shall have been or shall hereafter be released, assigned, or otherwise conveyed or disposed of under the provisions of the said Acts, or any of them, or of this Act, for merging or extinguishing the same, the lands in which such merger or extinguishment shall take effect shall be subject to any charge, incumbrance, or liability which lawfully existed on such tithes or rent-charge, previous to such merger to, the extent of the value of such tithes or rent-charge; and any such charge, incumbrance

This would not have ended the liability but made it reasonable, but probably at the end of the day impossible to enforce unless one entity had all the liable land.

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And how much did the Church pay for the land in the Dark Ages after they raped the Anglo Saxon peasants.

I believe you are making several common misunderstandings firstly that the land was owned by the church which is generally untrue. It was normally owned by the local Lord of the manor or Tithe owner who was given the land as part of enclosure award. In the case of Braughing it was common land that was enclosed and come into the possession of a Miss Mellish and a Sir E Harvey in 1820 by an Act of Parliament which was approximately 500 hundred years after the end of the Anglo Saxons. The two Lords of the Manor asked for the liability to be transferred into the land by requesting the enclosure and by the removal of the tithes For this enclosure the local Lords paid substantial sums of money which in the case of Braughing deprived many commoners of the right to common probably forcing them into the cities.

From a historical viewpoint the Anglo Saxons of the 8 and 9th century where Christians who were raided and pillaged by the Pagan Vikings

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I still believe that the Humans Right act was the wrong angle in which to take it because the law applies to all religions or none it is a personal liability attached to a particular piece of land. a far more productive argument would have been based on questioning the concept of personal and several.

This would not have ended the liability but made it reasonable, but probably at the end of the day impossible to enforce unless one entity had all the liable land.

This is exactly the approach that I recently recommended to the MP Peter Luff. He has failed in Parliament getting the CRL removed completely and this would seem a slightly softer option that might find favour. Gone are the days when the Lord of the Manor can extract money from the plebs.

Incidentally I have always known it as 'joint and several' and you refer to it as 'personal and several' - is there a difference in law?

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vii) it may be possible to simply offer to do the building work yourself (thereby potentially annulling the liability if this is refused) as "1932 did not alter the preexisting law . . . its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried

So,

1 Is there any time limit to how long you take to make repairs?

2 Is there any definition of 'repair?'

3 Can the PCC just order up expensive repairs from ecclesiastical masons and send you the bill, or do they have to accept your version of 'repairs' (i.e. just make it watertight with any old material you please.

I doubt any precedent has been set in regarding this but the act is available to read here http://www.legislation.gov.uk/ukpga/Geo5/22-23/20/contents and may provide further detail in regards to undertaking the work oneself.

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This is exactly the approach that I recently recommended to the MP Peter Luff. He has failed in Parliament getting the CRL removed completely and this would seem a slightly softer option that might find favour. Gone are the days when the Lord of the Manor can extract money from the plebs.

Incidentally I have always known it as 'joint and several' and you refer to it as 'personal and several' - is there a difference in law?

Hi all - been watching this thread with interest.

Yes, but it's pretty technical.

Assume 3 different landowners are liable, L1, L2 and L3.

Joint and Several - PCC sues L1. L1 can get L2 and L3 joined as defendants to the case and get the whole case heard together.

Personal and Several - PCC sues L1. L1 cannot get L2, L3 etc joined as defendants. He would have to launch his own claim against L2 and L3 for contributions towards what he's had to pay out to the PCC.

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Before Aston Cantlow repair was thought to be little more than 'water and wind proof' but after Aston Cantlow it is considered to be substantial repair but not decoration which suggests the repairs have to be done correctly and since churches are covered by various planning laws making certain that repairs are done to the correct specification a Lay Rector would be obliged to follow those. The Lay rector has to be informed before the repairs start and there is a process laid out in the 1932 act.

Logically this does not preclude the person with the liability from directly managing and overseeing the work themselves, or undertaking it themselves if sufficiently qualified, it merely indicates that building and planning regulations must be adhered to by whomsoever does undertake the work

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Logically this does not preclude the person with the liability from directly managing and overseeing the work themselves, or undertaking it themselves if sufficiently qualified, it merely indicates that building and planning regulations must be adhered to by whomsoever does undertake the work

True, however the permission you need to undertake work to a church (a "Faculty", which supersedes Listed Building Consent) can stipulate that the work be undertaken under the supervision of a certain architect/surveyor. I must admit I've never considered whether the Lay Rector could be forced to pay the fees of that architect in those circumstances.

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I agree though that Article 9 never reached the House of Lords or supreme court I suspect because the barristers thought it had no chance because of the practice in European countries of having church tax.

Your opinion here is pure supposition and faulty on several counts:

1) the original court dates pre-date the full coming into fource of the Human Rights Act and any precendent regarding the Wallbanks would in any case only be applicable to similar cases where the liability was known prior to purchase and freely entered into

2) you have absolutely no idea why the barristers did not take this argument forward, perhaps the Wallbanks are CofE or Christian and therefore not ideologically opposed to supporting the church? this as valid an opinion as the one you have stated given you do not know the details

3) the original court ruling was overturned in appeal, that appeal was then overturned by the Lords, the ruling of the Lords is therefore the one that is most relevant going forward

4) the Wallbanks barristers are clearly either idiots or profiteers, the basis on which they brought the case was clearly unwinnable and foolish, and they failed to make the only legitimate case possible where the liability is freely entered into - that there should be some limit to the amount of liability that can be extracted - and I would therefore not advise anyone to base their understanding of what would or would not represent a legitimate case on the decisions of these cowboys

I reiterate: where the liability was not known or not freely entered into there has been no precedent set as regarding Article 9

You may not believe in my human right to freedom from religion and freedom to exercise my personal beliefs that it is morally wrong for me to support any religious institution, your church may even be allowed under the law to ignore such rights, the judicial system is not. If the liability was unknown then there is no private contract and violation of my Article 9 rights in this matter could only be made with the help of the state and judiciary. The state and judiciary are not legally allowed to provide such support and would themselves be brought up before the European Court should they choose to do so.

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here. I knew it was somewhere.....

As for Article 9 of the Convention relating to religious freedom, Mr Justice Ferris could not distinguish this from the position of a tenant of a property owned by the Church Commissioners and dismissed the case of Darby v Sweden cited which related to a municipal tax which included a tax fixed by the Church of Sweden and paid to the Church but which, if he lived in Sweden, would be reduced because he was not a member of that Church. His problem was that he worked in Sweden and lived in Finland. The Commission held by ten votes to three that his rights under Article 9 had been violated.

Your own link and quotation actually support my position - the European Court held that in relation to church tax "his rights under Article 9 had been violated" - Ferris dismissed this as irrelevant to the Wallbanks particular case but that doesn't mean that it wouldn't be applicable to cases where the liability was not known or freely entered into. It certainly indicates that in such instances there would be a case to answer at a European level, which is what matters in relation to Human Rights violations.

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Further to my previous comment about article 9 it seems it was never taken to appealand so the last say on the matter is Mr Justice Ferrise in the High Court.

I still believe that the Humans Right act was the wrong angle in which to take it because the law applies to all religions or none it is a personal liability attached to a particular piece of land.

The last word on the matter in relation to this particular case may be Mr Justice Ferris, but it does not set any precedent for cases where the liability was neither known nor freely entered into after the Human rights Act came fully into force. Why are you so loathe to admit this?

The Wallbanks were wrong to go down the Human Rights path in their particular case, not for the reasons you suggest, but becuase the European Convention on Human Rights does not protect anyone from contractual arrangments freely entered into. Pretending that they were wrong to do so because there could be no violation, even if the liability had not be known about or freely entered into, is both ethically and factually wrong and nothing more than church propoganda (whether intentionally or unintentionally so).

If you were to discover that due to a document you had never seen on known could possibly exist that because of where you lived you were habitually described as "the atheist and godless Greg Yerbury" and were obliged to pay monies to maintain the buildings of an organisation that actively promoted the fact that there is no God and that the Church of England is both factually and morally wrong in all things would you not be greatly offended? Would you not feel that your rights to freedom of religion were being violated? Would you not rally the church around you to take the case to the European Court of Human Rights?

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The last word on the matter in relation to this particular case may be Mr Justice Ferris, but it does not set any precedent for cases where the liability was neither known nor freely entered into after the Human rights Act came fully into force. Why are you so loathe to admit this?

I agree with you if it was a liability that was completely unknown and there was no public record then the human rights law may well be successful indeed even with the Wallbank case one Law Lord mentioned that this could be the case but then it is unlikely a PCC would be able to register such a liability. Generally the human rights way of dealing with CRL is probably doomed to failure because of the precedents that have already been set and I am surprised that you are unable to see this but you are free to have your own opinion.

The Human right aspect of CRL is the only aspect of the law that that has reached the highest court. There are numerous other aspects of the law that are uncertain such as the apportionment of the liability is it really personal and several?, what is a chancel?, To what extent are rebuilt chancels liable, to what extent is merged land and tithe liable?, is impropriated Glebe land liable?, does the liability return if a closed church re-opens? What about Clerical Rector land? (although I would argue common Law resolves this) etc etc

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Furthermore, you still seem to be arguing Article 14 (anti-disrcimination), rather than Article 9 (freedom of belief in thought, practice and observance):

I am uncertain how being obliged to support an organisation I actually oppose would stop me from having my own religious opinions but that would be for the courts to decide. A court has ruled one way so far but I guess it does not preclude a court ruling another way in the future. I would like to find the entire High court ruling but I cannot so it remains a mystery to me.

You seem to be thinking I actually agree with the effect of CRL I don't.

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Few points on the Wallbank/Human Rights Act stuff, particularly in relation to the High Court judgment.

1) The High Court judgment was made before the HRA 1998 was in force, but the judge was required (and did) consider whether any Convention rights were infringed by the Wallbank CRL claim. He held there was no breach of Articles 1, 9 or 14.

2) The judge's ruling that there was no breach of Article 9 was NOT on the basis that the Wallbank's knew of the liability. It's worth posting para 25 of the judgment in full.

  • 25. Approaching the matter without reference to authority I have to say that I find it difficult to see how liability to repair the chancel arising under the ancient law which is applicable in this case affects Mr. and Mrs. Wallbank’s freedom of religion. They are at liberty to hold and practice whatever religious beliefs they may choose. Although it is not always possible to be sure about the existence of a liability for chancel repairs when land is acquired and, on this trial of a preliminary issue, I do not have material before me from which to form a view whether or not they were aware of this liability when they acquired their land, the fact remains that their liability is attributable to their own decision to acquire the land. It is in this respect different in character from liability to pay a tax imposed by some government agency in respect of which the payers have no choice whatever. Moreover if they were to dispose of the relevant part of their land they would put an end to their liability in respect of future years. These factors are, I think, of some importance in examining the nature of the liability. For example it is difficult to see how the tenant of leasehold property of which the landlord is an ecclesiastical body such as the Church Commissioners could argue that the liability to pay rent which will be used for church purposes affects his religious freedom. I find it difficult to draw a distinction of principle between this incident of leasehold property and the liability to repair the chancel which is an incident of rectorial property.

3) The Wallbanks then took a high-risk gamble of arguing a narrow range of issues at appeal and, eventually, lost. I would tend to agree that they were not brilliantly advised.

4) It is worth briefly noting that the European COURT of Human Rights (as opposed to the Commission) did not hold that there was a breach of Article 9 in the Darby v Sweden case. They pronounced no view and did not need to because they found a breach of Article 14 (discrimination based on Darby's residence in Finland, which put him in a worse taxation position than had he lived in Sweden).

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I agree with you if it was a liability that was completely unknown and there was no public record then the human rights law may well be successful indeed even with the Wallbank case one Law Lord mentioned that this could be the case but then it is unlikely a PCC would be able to register such a liability.

I think two things need to be considered when you claim that CRL on a particular piece of land was a matter of public record.

1. That the land owner may have been poorly served by the professionals assisting in the purchase, either though the general assumption that the liability had been obscured in history or through pure negligence.

2. The maps and documentation supporting CRL are poorly recorded, ambiguous and complex. Often they are not truly in the public domain. So even with good intentions the land owner does not have access to full clear documentation to support his knowledge and decisions.

Either of these create a fog against the notion of public record.

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I agree with you if it was a liability that was completely unknown and there was no public record then the human rights law may well be successful indeed even with the Wallbank case one Law Lord mentioned that this could be the case but then it is unlikely a PCC would be able to register such a liability. Generally the human rights way of dealing with CRL is probably doomed to failure because of the precedents that have already been set and I am surprised that you are unable to see this but you are free to have your own opinion.

The Human right aspect of CRL is the only aspect of the law that that has reached the highest court. There are numerous other aspects of the law that are uncertain such as the apportionment of the liability is it really personal and several?, what is a chancel?, To what extent are rebuilt chancels liable, to what extent is merged land and tithe liable?, is impropriated Glebe land liable?, does the liability return if a closed church re-opens? What about Clerical Rector land? (although I would argue common Law resolves this) etc etc

The first statement in bold is the only point that I was making throughout, and is actually contradictory to your second position. All of my posts reflect that view that if the liability was known there is no human rights defense as the liability was freely entered into. It is only where it was unknown (including where it was not known that such a liability could exist and therefore be actively searched for) that a viable human rights defense could be made and a test case from this position has not reached any court since the Human Rights Act came fully into force. I am not at all surprised that you continue to conflate the two positions, however doing so is factually incorrect and not a matter of opinion.

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