Lay rector's obligation to repair chancel of parish church - parochial church council not 'public authority' and entitled to enforce liability against lay rector - no infringement of convention rights

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another: HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry): 26 June 2003

The defendants, as freehold owners of former rectorial land, were lay rectors liable at common law to repair the chancel of their parish church.

The claimant parochial church council had a statutory obligation to maintain the fabric of the church.

The claimant served the first defendant with a notice under section 2(1) of the Chancel Repairs Act 1932 requiring her to repair the chancel.

She disputed liability and the claimant brought proceedings against the defendants, pursuant to section 2(2) of the 1932 Act, to recover the cost of chancel repairs.

On a preliminary issue, Mr Justice Ferris held that the defendants were liable (see [2000] Gazette, 28 April, 32).

The Court of Appeal [2002] Ch 51, allowed the defendants' appeal on the ground that the claimant was a public authority for the purposes of section 6 of the Human Rights Act 1998 and, therefore, obliged not to act in a manner which was incompatible with the defendants' rights under the European Convention on Human Rights, and that the defendants' liability to defray the cost of chancel repairs amounted to an infringement of their right to peaceful enjoyment of their possessions guaranteed by article 1 of the first protocol to the convention, and unlawful discrimination as between landowners contrary to article 14.

The claimant appealed.

Charles George QC and Mark Hill (instructed by Winckworth Sherwood for Rotherham & Co, Coventry) for the claimant; Michael Beloff QC and Ian Partridge (instructed by Eddowes Perry & Osbourne, Sutton Coldfield) for the defendants.

Held, allowing the appeal, that although the Church of England, as the established church, had special links with central government and performed certain public functions, it was essentially a religious organisation and not a governmental one; that parochial church councils were part of the means whereby the church promoted its religious mission and discharged financial responsibilities in respect of parish churches; that the functions of parochial church councils were not wholly functions of a public nature nor (Lord Scott dissenting) was the claimant performing a function of a public nature when it took steps to enforce the defendants' liability to repair the chancel; that that was a private law liability arising out of the ownership of land, and its enforcement by the claimant was an act of a private nature and, therefore, excluded by section 6(5) from coming within the ambit of section 6(3)(b); that (per Lord Nicholls, Lord Hobhouse, Lord Scott and Lord Rodger) in seeking to enforce the defendants' chancel repair liability, the claimant was acting under primary legislation (section 2 of the 1932 Act) and was consequently within the exception in section 6(2)(b) of the 1998 Act; that, therefore, there were no grounds upon which the claimant could be regarded as a public authority within section 6 of the 1998 Act and so it had no obligation to act compatibly with convention rights; that (per Lord Hope, Lord Hobhouse and Lord Scott) the private law liability for the cost of chancel repairs was a burden which ran with rectorial land and was similar to any other burden which ran with the land; and that the defendants were not, therefore, being discriminated against as compared with other owners of rectorial land, contrary to article 14, nor was the peaceful enjoyment of their possessions being interfered with contrary to article 1 of the first protocol.

(WLR)