Chancel Repairs

Lord Avebury Excerpts

Thursday 15th January 2015 Grand Committee

Asked by

[Lord Avebury]

To ask Her Majesty’s Government what steps they are taking to abolish the liability of private householders and others for chancel repairs.

[Lord Avebury (LD)]

My Lords, a consensus that reform of the law on chancel repairs is long overdue has emerged from discussions with the church, the Law Commission, the Law Society, the Country Landowners’ Association and the National Secular Society. Since the Chancel Repairs Bill will not make further progress until after the general election, a preliminary debate on the issues is useful now.

By the 12th century, the liability to pay for chancel repairs, the CRL, was already linked to the tithes being received by the rectors of certain parishes. At the Reformation, Henry VIII sold the right to the tithes to lay people, who became liable for chancel repairs as “lay rectors”. Under the current law, the Tithe Act 1936, some lay rectors are still responsible for those repairs, but the tithes which originally enabled them to make a profit from the transaction were abolished. The unfortunate remnants were those who owned land that was not relieved of the burden in 1936, or their successors in title, who have been living under a sword of Damocles for the past 78 years. It is for discussion whether major institutions such as the schools of Eton and Winchester or the colleges of Oxford and Cambridge should continue to be required to pay long-standing non land-based CRL, but it is unreasonable for the owners of generally small plots of land in some 2,500 Anglican parishes in England—around half of them—to be potentially liable for the charge, which is without limit.

The Chancel Repairs Act 1932 reasserted the little-used right to enforce CRL but transferred enforcement from the ecclesiastical courts to the county courts after a lay rector was sentenced to prison by the High Court for contempt of the ecclesiastical court for non-payment of CRL. It was seldom recovered during the succeeding half-century, and in 1981 the General Synod accepted the recommendation of its standing committee, headed by the late Archbishop of Canterbury Lord Runcie, to phase it out. In moving to receive the committee’s report, Mr Clark of Southwark said:

“So I hope we shall support the suggestion that we phase out these liabilities, just as the Church of the 1830s agreed reluctantly to tithes being phased out”.

The synod approved the recommendation but declined to use its legislative powers to implement it. Soon after, and with Church of England involvement, the Law Commission recommended the abolition of CRL by statute after a 10-year notice period, which would by now have long expired. That recommendation, made in a well argued paper, was not implemented, but if the synod itself agreed to ending CRL, thinking it unlikely that compensation would be forthcoming from the Government in 1982, it would be even less realistic in this age of austerity to expect the taxpayer to reimburse parishes for the loss of a doubtful future income. Given the furore over even the registration of CRL of properties in the roughly one in 20 parishes thought eligible to do so, parochial church councils have wisely refrained from enforcing their legal rights since 2003, so are they worth anything?

The state already contributes hugely to the upkeep of churches through gift aid worth some £84 million; the Listed Places of Worship Grant Scheme worth £42 million; the National Heritage Memorial Fund, currently funding repairs to Winchester Cathedral costing £14 million and of York Minster at £18.3 million; further grants to cathedrals recently announced worth £8 million; Heritage Lottery Fund grants to churches of £300 million in the 10 years to 2004, the lion’s share to the Church of England; and finally, £15 million recently announced by the Chancellor of the Exchequer for repairs to church roofs and rainwater pipes under the Listed Places of Worship Roof Repair Fund.

In 2003, following a refusal by English Heritage to fund repairs to the church in Aston Cantlow in Warwickshire, the local PCC refused an offer of £25,000 from the lay rectors, Mr and Mrs Wallbank, and the parish took the case all the way to the House of Lords, with the active support of the Archbishops’ Council. There, the Wallbanks lost, and had to sell their farm to pay the CRL and costs approaching £500,000.

Parliament reacted with an order providing for registration of CRL at the Land Registry to alert buyers to land being subject to the liability, since it was rarely shown on deeds, but lawyers doubt whether buyers of unregistered land are protected as envisaged when the order was enacted. The church warned PCCs that failure to register under the order might render trustees personally liable, so it is little wonder that an estimated 17,000 titles in a few hundred parishes have been registered. The vast majority are owned by ordinary householders, not major landowners.

Attempts were made to mitigate the harm to the mission of the church that registration caused. Titles were singled out where the return seemed most lucrative or there was likely to be opposition. PCCs often announced that there was no intention of enforcing the liability. However, assurances are not legally binding and can be rescinded at the stroke of a pen. Even cancellation of the registration does not extinguish the right to enforcement.

PCCs were ill equipped for the laborious and exacting work of registration, often involving missing, archaic or inaccurate documents. Unsurprisingly, thousands of registrations have been made in error, compounding the distress caused to householders. This happened, for example, in Gorleston in Norfolk, where all of the nearly 1,000 registrations had to be withdrawn.

Given the hostility to registration reported by the media, churches would find it extraordinarily difficult and counterproductive in terms of their relationships with their parishes to sue for recovery of CRL. It appears not to have been attempted since Aston Cantlow. Registration is literally a medieval anomaly that undermines the value and saleability of land, creating lasting animosity towards the church, without achieving the objective of improving the funding of chancel repairs. It aims at taxing citizens who may not even be Christian or belong to any religion, for the purposes of one faith out of dozens in our multicultural society.

Even more harmful for many landowners than the exposure to unquantifiable and theoretically limitless CRL is the blight of registration, significantly reducing the sale price and even making the property unsaleable, particularly to buyers requiring mortgages. Since Aston Cantlow, purchasers of land have routinely taken out insurance against having to pay CRL, and this has proved very lucrative to the insurance industry, given that payouts have been minimal. But for property blighted by registration, premiums are astronomical or insurance is totally unavailable.

The only fair solution is abolition, modelled on the Law Commission’s recommendation, but until that can be effected, a much greater availability is needed of compounding—the ability to buy out the liability to CRL, at low cost and minimal professional fees. At Edingale in the diocese of Lichfield, the diocese agreed after long and stressful negotiations to accept just £45 from a householder to extinguish her liability to pay CRL of thousands of times that amount if it had been recoverable. Without compounding, any would-be purchaser would have had to take into account the probability that, ultimately, the church would be able to enforce the claim, as it did in Aston Cantlow.

Some dioceses already recommend compounding, but a uniform countrywide scheme would be the ideal, possibly by way of amendments to the Ecclesiastical Dilapidations Measure 1923. The initiatives of the Reverend Greg Yerbury, team rector of Penkridge, Staffs, might provide a useful model. In any case, based on the principle that half a loaf is better than no bread, it might be sensible for the church to devise a workable national scheme for compounding before we return to the Chancel Repairs Bill, abolishing CRL altogether after the general election.

--- Later in debate ---

[Lord Ashton of Hyde]

The problem is that nobody has come up with a simple way of how to do it, except by providing compensation, because it is a property right under the Human Rights Act. The issue is: who provides compensation to the people who own the right? We have decided that there is no necessity to do that when there is no actual example of hardship taking place at the moment. The reason that I said that we will keep it under review is that if there is evidence of actual hardship taking place, we will consider this measure.

[Lord Avebury]

As we have a couple of minutes, I ask the Minister whether the Government will encourage the church to consider the schemes of compensation that I mentioned at the end of my speech, which have been successful in certain parishes? As we heard, one householder managed to compound his liability for the sum of £45. If the church could be encouraged to consider that sort of solution, it might solve the financial problem.

[Lord Ashton of Hyde]

I believe that the church is in discussions with the National Secular Society, for example, in dealing with this. The Government have said that they are prepared to join in those discussions or to take account of them. Beyond that, I am not able to commit the Government but I know that we will be interested to listen to what they have to say and we are prepared to take part in those discussions.