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Chancel Repair Liabilities


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

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.

Thanks for that I have never been able to find a copy of the judgement is it buried on the net somewhere? I have read Eagles book of tithes and some ancient cases connected with CRL and tithes and came to the opinion long ago that the Human Rights angle was the wrong approach I think they took the barristers went this way because it was new bright and shiny. They should have gone to old cases and attacked the Wickhambrook PCC v Croxford judgement.

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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.

I don't think that you agree with CRL I just think your understanding of the European Convention on Human Rights leaves something to be desired.

As an atheist my personal beliefs (analagous to religious beliefs in the context of Article 9) are specifically opposed to the support of any religion or religious establishment. You are conflating an opinion (opposition) with a belief (atheism). The former is not protected, the latter is. The argument made in this context would differ depending on particular belief systems. I have a friend who was raised JW, for instance, and was taught that any support for another religious organisation would automatically condemn them to hell.

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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).

Thank you for posting this, the link I found for this case did not seem to work. Absolutely agree that the Wallbanks were not well advised at all.

Do you have the original transcript of what the Wallbanks argued in relation to Article 9? As the ruling states that "They are at liberty to hold and practice whatever religious beliefs they may choose." it seems as if they did not make the argument that their religious beliefs were in and of themselves directly counter to the passing of any funds to the CofE but rather that they were making a general complaint that the payments were in some way religious?

Apologies for confusing the European Court with the European Commission, was assuming a similarity to the Supreme Court / House of Lords set up which apparently doesn't exist.

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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.

This exactly.

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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.

I am sorry you seem to have lost of track of your own points as I may well have done earlier you stated which is what I was dealing with

I think there would be a stark difference between what happened to the Wallbanks and what would happen to anyone who was not made aware of the liability at the time of purchase and was not CofE themselves.

Since in all known l cases (I have never found any who are not) liabilities are publicly recorded in archives that anyone could look at. My point is that the Human rights may offer some protection is that in the extremely unlikely case that the records are private (although from what I have just read that is not the case). The fact a buyer may well buy a property with CRL that it is not recorded on the deeds but recorded on in a public archive 20 miles away, I do not think the Human rights law offers a defence since the buyer could have researched it. I hope I have made myself clear since I still think the principle of the Buyer beware remains a key principle.

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I am sorry you seem to have lost of track of your own points as I may well have done earlier you stated which is what I was dealing with

Since in all known l cases (I have never found any who are not) liabilities are publicly recorded in archives that anyone could look at. My point is that the Human rights may offer some protection is that in the extremely unlikely case that the records are private (although from what I have just read that is not the case). The fact a buyer may well buy a property with CRL that it is not recorded on the deeds but recorded on in a public archive 20 miles away, I do not think the Human rights law offers a defence since the buyer could have researched it. I hope I have made myself clear since I still think the principle of the Buyer beware remains a key principle.

That you feel that the following statements contradict each other and in some way mean that I have "lost track of [my] own points" is symptomatic of the standard of logic being applied here:

I think there would be a stark difference between what happened to the Wallbanks and what would happen to anyone who was not made aware of the liability at the time of purchase and was not CofE themselves.
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
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.

In regards to public records it seems that there are instances where there is no knowledge that such records could exist (this is quite widespread); the records are technically available but not easily or freely discoverable; the records are incomplete, contradictory or not readily decipherable; the relevant professional bodies (solicitors, surveyors) were not aware of the need to search for such records; the records only exist for a parcel of land that has since been subdivided with no record as to where the liability there lies. To suggest that "buyer could have researched" something that was not commonly known to exist is (as opposed to public rights of way, structural issues, listed status, etc) is pretty damn unethical and I doubt it would be upheld that the records were public enough to counteract a well argued Human Rights case.

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That you feel that the following statements contradict each other and in some way mean that I have "lost track of [my] own points" is symptomatic of the standard of logic being applied here:

In regards to public records it seems that there are instances where there is no knowledge that such records could exist (this is quite widespread); the records are technically available but not easily or freely discoverable; the records are incomplete, contradictory or not readily decipherable; the relevant professional bodies (solicitors, surveyors) were not aware of the need to search for such records; the records only exist for a parcel of land that has since been subdivided with no record as to where the liability there lies. To suggest that "buyer could have researched" something that was not commonly known to exist is (as opposed to public rights of way, structural issues, listed status, etc) is pretty damn unethical and I doubt it would be upheld that the records were public enough to counteract a well argued Human Rights case.

I agree there are instances of all the above where the maps are uncertain or unclear but in those cases the PCC can't even register the liability but the tithe commissioner and Enclosure commissioners were generally very good and it is rare for it to be unclear where the liability is if there is ones. For Enclosure awards before about 1765 there were not often plans showing the liability and so there is only a descriptions which are hard to follow but after that date it becomes more common for a plan to exist

The possibility of there being CRL in any given ancient parish is quite easily determined today although that would have not be the case 20 years ago since it would have meant a visit to the local archives. To determine if a particular plot is liable will totally determine on the changes of land scape over the years but generally outside very build up areas it is not that hard. I have successfully partially laid an enclosure plan over several parishes although in all cases I have done it or a friend has done it it has been in rural areas.

I would have thought the archives being open 5 days a week for about 40 hours would count as being public.

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As I was getting on with my work for the evening I couldn't but help but think of this Douglas Adams quote

`...You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything.'

`But the plans were on display...'

`On display? I eventually had to go down to the cellar to find them.'

`That's the display department.'

`With a torch.'

`Ah, well the lights had probably gone.'

`So had the stairs.'

`But look you found the notice didn't you?'

`Yes,' said Arthur, `yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard"

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No it is the earlier judgement from the High court. My life is now complete I think I have read every judgement related to CRL carried out in the last 100 years.

Oh. It says House of Lords in the top left hand. The Court of Appeal decision was in 2001, the appeal to The House of Lords that my link takes you to was in 2004. Was there another later hearing? Perhaps I haven't inserted the link correctly. Nevertheless in the BAIILI search results there are only three links to the Wallbank case.

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Oh. It says House of Lords in the top left hand. The Court of Appeal decision was in 2001, the appeal to The House of Lords that my link takes you to was in 2004. Was there another later hearing? Perhaps I haven't inserted the link correctly. Nevertheless in the BAIILI search results there are only three links to the Wallbank case.

High Court - Court of Appeal - House of Lords, in that order as far as I can see so there is no later hearing.

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We have debated the issue of difficulty of finding the liabilities which are virtually all in public archives but not necessarily that easy to access or easy to understand. There are some records that are totally public with the maps on the net to the extent people who know what they are looking for can tell which plot and fields are liable and by looking at any online map can see which houses are liable today.

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We have debated the issue of difficulty of finding the liabilities which are virtually all in public archives but not necessarily that easy to access or easy to understand. There are some records that are totally public with the maps on the net to the extent people who know what they are looking for can tell which plot and fields are liable and by looking at any online map can see which houses are liable today.

Greg

I have never found these and have been surfing CRL for a couple of months. Can you give links, or even what you search for on Google?

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This is unfortunately what I mean when I say that records may be technically public but not readily discoverable in practice...

Agreed. Even after the CRL was placed on the Land Registry against my land (presumably marking its existence) I still can't' find a single bit of evidence.

I spend all day Googling things, I contacted the National Archive, and also a £100 fee for a Record of Ascertainment found nothing. I think it would be easier to find the Holy Grail.

Edited by bumpy
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Agreed. Even after the CRL was placed on the Land Registry against my land (presumably marking its existence) I still can't' find a single bit of evidence.

I spend all day Googling things, I contacted the National Archive, and also a £100 fee for a Record of Ascertainment found nothing. I think it would be easier to find the Holy Grail.

Dear Bumpy the record of ascertainments only dealt with the liabilities that were left over in 1936. The records for Braughing can be found by googling 'braughing inclosure award' which shows on the national archive website there are two copies of the award. Alternatively you could use the enclosure plan search engine and put Braughing into it and it shows one with a different reference number suggesting there are three copies two in Hertfordshire record office and one in Cambridgeshire record office..

You asked about online records well if you searched 'Cheshire tithe maps' f you will come up with the tithe maps of that county and if the record of ascertainments were downloaded from the national archives for the correct parish a person could see precisely which plots were liable for apportioned liability.

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