Human rights

Whether owners of former glebe land liable to defray cost of repairing chancel of parish church - whether parish church council public authority within section 6 of Human Rights Act 1998 - whether action unlawful by reason of European Convention on Human Rights - judge holding owners liable to church council - appeal allowedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another: Court of Appeal: Lords Justice Walker and Sedley, Vice-Chancellor Sir Andrew Morritt:17 May 2001The defendants were the owners of Glebe Farm, Aston Cantlow, which stood on a field formerly known as Clanacre.The field had been allotted to a previous owner, by an inclosure award of 1743, in exchange for other land that he owned as a lay impropriator of the rectory.

Accordingly, the owners of the Clanacre rectorial property, then and thereafter, were lay rectors of the parish, and were legally obliged to maintain the chancel of the parish church in a state of good repair.

The power to enforce that obligation rested with the claimant.By 1990 the chancel of the church of St John the Baptist, Aston Cantlow was in a state of serious disrepair.

In September 1994 the claimant served a notice upon the defendants, demanding that they repair the chancel.

The defendants disputed their liability and the claimant subsequently issued proceedings to recover the estimated costs of 95,000.A hearing of a preliminary issue was ordered to establish whether the liability of the lay rector to repair the chancel, or otherwise to meet the cost of repairs by reason of the provisions of the Chancel Repairs Act 1932 was unenforceable by reason of the Human Rights Act 1998.

The judge found against the defendants.The issues on appeal were whether: the claimant was a public authority within section 6 of the Human Rights Act 1998; and, if so its action in serving the notice upon the defendants was unlawful by reason of article 1 of the first protocol, read either alone or with article 14 of the convention.Held: The appeal was allowed.The claimant possessed powers to determine how others should act that were not possessed by individuals.

Its notice to repair had statutory force.

It was public in that it was created and empowered by law.

Its functions included the enforcement, through the courts, of a common law to maintain its chancels, and this liability could fall upon persons who were not members of the church.

It was therefore a public body, whose actions had to be compatible with the convention.Under article 1 of the first protocol, every person is entitled to the peaceful enjoyment of his possessions, subject to the right of the state to, among other things, secure the payment of taxes.However, legitimate taxation in the public interest has to be pursued by means that are not completely arbitrary or out of all proportion to their purpose.

The liability for chancel repairs attaching to former rectorial land was entirely arbitrary, and therefore violated the convention right contained in article 1.The way in which the liability operated resulted in unlawful discrimination in the right to the peaceful enjoyment of an individual's possession contained within article 14.

It discriminated between owners of land that was formerly glebe land and owners of land that was not by making the former, but not the latter, liable for chancel repairs.

It was neither appropriate nor proportionate to single out those landowners whose property was once glebe in order to maintain historic buildings in the public interest.

Furthermore, there was no surviving reasonable or objective justification for distinguishing them from other freehold property owners, whether locally or nationally: James v United Kingdom A/98 (1986) 8 EHRR 123; and Hkansson v Sweden A/171 (1991) 13 EHRR 1 considered.Sarah Asplin (instructed by Rotherham & Co, of Coventry) for the claimant; Ian Partridge (instructed by Eddowes Perry & Osbourne, of Sutton Coldfield) for the defendants.