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Published online by Cambridge University Press: 31 July 2008
The two main aspects of the Aston Cantlow case1 have been the subject of considerable academic interest.2 The first concerns the status of a parochial church council (‘PCC’) for the purposes of the Human Rights Act 1998, and by implication the status of many other church bodies under that Act. The second concerns the law relating to the liability of certain individuals and corporate bodies to repair the chancel of the parish church.
1 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, (2001) 81 P & CR 14, [2000] 2 EGLR 149 (Ferris J); [2002] Ch 51, [2001] 3 All ER 393, [2001] 3 WLR 1323 (CA); [2003] 3 WLR 283, [2003] 3 All ER 1213 (HL).Google Scholar
2 See the Editiorial at (2004) 7 Ecc LJ 246, and the articles there referred to. See also Cane, Peter, ‘Church, State and Human Rights: are Parish Councils Public Authorities?’ (2004), 120 LQR 41.Google Scholar
3 Para 64.Google Scholar
4 Paras 60–61.Google Scholar
5 This rather nebulous character of the Church of England was emphasised by Gerald Ellison, then recently retired as Bishop of London, in an address which he gave to the Partners in Mission Consultation at Hengrave Hall in May 1982: ‘The Church of England as such has never trained a priest, has never sent a missionary, has never opened a hospital’. Lord Rodger described the juridical nature of the Church as ‘notoriously somewhat amorphous’ (para 154).Google Scholar
6 Marshall v Graham [1907] 2 KB 112, 126Google Scholar
7 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1992] 1 WLR 1036 at 1042A. [1993] 2 All Er 249, per Simon Brown J.Google Scholar
8 Para 15.Google Scholar
9 Law Com No. 152. published in November 1985.Google Scholar
10 Ibid para 1.7.
11 Ibid para 4.6.
12 See the excellent Working Paper No.86. written by Brian O'Brien. the former secretary of the Commission. Which contains the best modern account of the intricacies of the law relating to chancel repair liability, paras 6 19–22Google Scholar
13 James v United Kingdom (1986), 8 EHRR 123, para 54, E Ct HR.Google Scholar
14 Law Com No. 152 para 1.2.Google Scholar
15 Ibid para 4.7.
16 See ‘Lay Rectors and Chancel Repairs’ (1984), 100 LQR 181, 184.Google Scholar
17 Land Registration Act 1925, s. 70(1)(c).Google Scholar
18 Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003. SI 2003/2431.Google Scholar
19 See the Land Registration Act 2002, ss. 11 (4)(a) and 12(4)(b) for first registration. and ss. 29(2)(a)(i) and 30(2)(a)(i) for registered dispositions of estates and charges.Google Scholar
20 Para 2.29.Google Scholar
21 The Law Commission was told by the Church Commissioners that they themselves, under one head or other, are liable, solely or partly, for the repair of some 800 chancels; that cathedral authorities have liabilities in respect of some 200; and that educational foundations have liabilities in respect of a further 200: Working Paper 86, para 2 30.Google Scholar
22 It included the Wallbanks in the Aston Cantlow case, and both parties in Chivers & Sons Ltd v Air Ministry[1955] Ch 585, [1955] 2 All ER 607, [1955] 3 WLR 154.Google Scholar
23 Domestic Records Information 86, available at http://catalogue.pro.gov.uk/Leaflets/ri2193.htm. In many cases the original Enclosure Awards may be found in the relevant county record office.Google Scholar
24 Legal Records Information Leaflet 33, available at http://catalogue.pro.gov.uk/Leaflets/ri2251.htmGoogle Scholar
25 Series IR 104. For further details, click on IR 104 in the internet version of Leaflet 33, note 24 above.Google Scholar
26 Working Paper 86, para 2.20; but it appears that the original rectorial property replaced by the lands in question in Chivers & Sons Ltd v Air Ministry, cited in note 22 above, had included glebe; and in Aston Cantlow it was not clear whether the Wallbanks' land, which was known as Glebe Farm, was allotted by the Enclosure Award to their predecessor in title on account of the ownership of tithes or on account of glebe that may have been included in the common lands that were being enclosed: see para 112, per Lord Scott.Google Scholar
27 Working Paper 86, para 2.29.Google Scholar
28 Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417. CA.Google Scholar
29 Law Com No. 152, para 5.10.Google Scholar
30 Para 122, Viscount Simon LC also left the question open in Representative Body of the Church in Wales v Tithe Redemption Commission, [1944] AC 225 at 239, HL; and Lord Nicholls (para 3) and Lord Hope (para 82) also appear to have regarded it as open to review.Google Scholar
31 Para 7.2(b).Google Scholar
32 Working Paper 86, paras 6. 12–13.Google Scholar
33 Working Paper 86, para 3.15.Google Scholar
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