1 Examples of the former include rights of way and of drainage, of the latter advowsons (the right of presentation to a living) and (at least some) franchises (eg of long discontinued ferries).

2 See Law Com no 254, Land Registration for the Twenty-First Century (1998) paras 2.44,lO. 19, in which the Law Commission, after having identified the difficulties of operating s 75 of the Land Registration Act 1925 in the context of adverse possession, recommended that the law on adverse possession be remodelled to more properly represent the principles of the land registration system. These changes have been incorporated into the Land Registration Act 2002.

3 See I Dawson and A Dunn ‘Negative easements - a crumb of analysis’ (1998)

4 See Law Commission No 152 Property Law: Liabilityfor Chancel Repairs (1985).

5 Such potential for harm arising for example in the context of chancel liability, because the person liable may be unaware on purchasing the land giving rise to the (personal) liability of the owner of the liability: such liability, in unregistered conveyancing, may not be abstracted, and, in registered conveyancing, may be an ovemding interest under the Land Registration Act 1925, s 70(l)(c).

6 Public policy ‘is a very unruly horse and when once you get astride of it you never know where it will carry you. It may lead you from the sound law’, per Burrough J in Richardson v Mellish (1824) 2 Bing 229 at 252.

7 [2001] EWCA Civ 713, [2001] 3 All ER 393.

8 For a fuller examination of the history and development of liability for chancel repair, see Law Commission Working Paper No 86 Transfer of Land: Liability for Chancel Repairs (1983); J H Baker ‘Lay Rectors and Chancel Repairs’ (1 984) 100 LQR 18 1 - 185; and Law Commission No 152, n 4 above.

9 Which is approximately 3,000 churches: see Law Commission Working Paper No 86, n 8 above, para 1.3.

10 This Act was merely procedural and did not affect the nature of the right itself.

11 See the Chancel Repairs Act 1932 for general enforcement provisions and for procedure.

12 See Wise v Metcalf( 1829) 10 B & C 299.

13 War Damage Act 1943, s 119.

14 Law Commission Working Paper No 86, n 8 above, paras 2.1, 2.3.

15 [ 19351 2 KB 417 at 432. This case established that the liability of a lay impropriator was personal and several and unlimited. This was a case involving liability arising out of a rentcharge. The value of rentcharge was £120, cost of repair was just over £123. For comment see C V Davidge ‘Chancel Repairs’ (1935) 51 LQR 583-585.

16 In particular, Lord Hanworth noted Whinfield v Warkins 2 Phillim 1, Morley v,!,eacrofr [1896] P 92; Pense v Prouse 1 Ld Raym 59, Ball v Cross 1 publication-typeSalk 164, Grifin v Dighton 5 B&S 93, and Smallbones v Edney LR 3 PC 444. In Pense v Prouse Sir John Holt CJ made the point that: ‘by the canon law the parson ought to repair the whole; but by the custom of England, the parson shall repair the chancel, and the parishioners the nave of the church.’ See also Coke's Inst, Pt 11, vol ii, p 489.

17 Upon occasion the custom dictated that the repairing obligation fell upon the parishioners rather than the rector, see Williams v Bond (1690) 2 Ventris 238; Tindal CJ in Veley v Burder (1 840) 12 Ad & El 265 at 300ff; and Sir John Nicholl in Bishop of Ely v Gibbons (1 833) 4 Hagg Ecc 156 at 162 where liability for chancel repairs transferred from the rector to the parishioners, but this appears to have been an exception to general custom.

18 Sees 52.

19 See Chancel Repairs Act 1932, and J Baker ‘Lay Rectors and Chancel Repairs’ (1984) 100 LQR 18 1, 183. In the words of Viscount Simon LC, ‘a lay impropriator in its ordinary sense is a lay person or corporation who is in possession of the revenues of a living’: Representative Body of the Church in Wales v Tithe Redemption Commission [ 194.41 AC 228 at 241.

20 Law Commission Working Paper No 86, n 8 above.

21 [ 19551 1 Ch 585 at 593. See also the argument of counsel Mr Wigglesworth at 591.

22 [I8981 2 Ch 120.

23 [I8981 2Ch 120at 124-125.

24 Being a lay rector carries no duties akin to those of the spiritual rector: see generally M Hill Ecclesiasticcd Law (Oxford: Oxford University Press, 2nd edn, 2001).

25 Discussed in Stileman-Gibbard v Wilkinson [ 18971 1 QB 749 at 761-762, citing Spry v Flood 2 Curt 253 and Cli’oord v Wicks 1 publication-typeB & A 498. The right to the chief seat in the chancel appears to be able to be prescribed for: see Hall v Ellis Noy 133.

26 (1864) 5 B & S 93. The facts of this case were that the door to the chancel was kept locked, the only key holder being the lay rector. The lay rector refused to let the vicar have access to the chancel (and hence to the rest of the church) except in the times of divine worship.

27 (1833) 4 Hagg Ecc 164 at 170, and cited in GrifJin v Dighfon (1864) 5 B 8∼ S publication-type93 at 107. See also Jarratr v Sreele (1820) 3 Phillim 167.

28 (1 864) 5 B & S 93 at 104. See also 105- 106.

29 By ‘rectorial lands’ is meant those land which originally were vested in the spiritual rector, and would comprise those lands which made up the living of the spiritual rector.

30 This anomalous feature of the liability was highlighted by the Law Commission in their Working Paper on Chancel Repair, above n 8. They stated, at para 5.6: ‘So far as we are aware, nowhere else in the law is there to be found attached to the ownership of land a positive liability to do (or pay for) work on other land, that work being in no way for the benefit also of the land burdened, or of its owner.’ There are examples of positive obligations which may not be of benefit to the person liable. Eg the (spurious as it is sometimes characterised) easement of fencing. Here the servient tenement owner may not be concerned to keep out the neighbour's animals, as where the servient tenement is unused. And of course environmental legislation, such as Listed Building status does impose financial obligations to preserve property in a form not necessarily of benefit to the landowner. Gasholders may provide one illustration where the landowner may wish to demolish the redundant item and replace it with commercially valuable buildings. Such an obligation can be imposed without prior notice (see eg Amalgamated Investment & Property Co Ltd v John Walker & Son Ltd [1977] 1 WLR 164, where the building was listed after contract and before completion, which afforded no ground for avoiding the contract). In economic terms there may be little difference between the obligation to spend f95,000 on a nearby church which one does not attend, and a similar amount on maintaining a building on one's own land which one would prefer to demolish and for which one has no use. It is not obvious that there is a difference in principle.

31 [I9571 Ch 169 at 182.

32 See Austerberry v Oldham Corporation (1 885) 29 Ch D 750; Rhone v Stephens (1993) 67 P & CR 9; Tulk v Moxhay (1848) 2 Ph 774. K Gray provides a good overview of the discussion in this area in Elements of Land Law (London: Butterworths, 3rd edn, 2001).

33 I19081 2 Ch 665 at 669.

34 Co Litt 230b.

35 See Upjohn J in Halsall v Brizell[1957] Ch 169 at 182.

36 Per Megany V-C in Tito v Waddell (No 2) [1977] Ch 106 at 305.

37 [ 19941 2 AC 310 at 322, applied by the Court of Appeal in Thamesmead Town Ltd v Allorey (2000) 79 P & CR 557.

38 Most particularly by Megany V-C in Tito v Waddell (No 2) [ 19771 Ch 106.

39 [1994] 2 AC 310.

40 As was stated in the Law Commission Working Paper No 86, n 8 above, para 3.1: ‘While it is true that much of the law is anachronistic, and capricious in its modem application, yet it is only in connection with dealings with land that it appears to create difficulty and injustice.’

41 [1929] P 240, particularly at 243-244, where Chancellor Macmorran reviewed the authorities of Sergeant Davies’ Case 2 Rolle 2 1 1 ; Walwyn v Awberty 2 Mod 254; and Smallbones v Edney (1870) LR 3 PC 444.

42 Because the obligation arises at law, and binds everyone as do other legal rights.

43 As first coined by D J Hayton Registered Land (London: Sweet & Maxwell, 1973) p 88.

44 [1935] 2 KB 417 at 437.

45 See comments of Wynn-Parry J in Chivers [1955] 1 Ch 585 at 594, applying Wickhambrook Parochial Church Council v Croxford [ 19351 2 KB 41 7. It is not entirely clear on what basis contributions would be quantified.

46 Eg it has concerned the Law Commission since 1970. See Law Commission No 36 Fifh Annual Report (1969-70); Law Commission No 58 Eighth Annual Report (1972-73); Law Commission No 119 Seventeenth AnnualReport (1981-82).

47 Law Commission Working Paper No 86, n 8 above, para 3.1.

48 Baker, n 8 above.

49 Original inquiry came in 1983, followed by the White Paper in 1985 which recommended abolition: n 8 above. The response of the Law Society was to favour immediate abolition of chancel liability rather than the ‘run out’ period suggested by the Law Commission: (1 986) 83(25) LS Gaz 2076 (reproduction of a letter from the Law Society's Secretary General to the Permanent Secretary to the Lord Chancellor).

50 It appears that a period of consultation is currently being undertaken by the Government with Church of England Authorities prior to a decision about implementation: see HC Official Report (6th series) written answers, col340, 1 July 1996.

51 See in particular the latest report of the Law Commission, Law Commission No 254 LandRegistrationfor the Twenty-First Century (1998) and the Land Registration Act 2002.

52 J Howell ‘Land and Human Rights’ [ 19991 Conv 287-3 10; Lord Reed ‘Human Rights and Property Law’ (2001) I Human Rights and UK Practice 1 1- 15; D Rook Property Law and Human Rights (London: Blackstone Press, 2001). See also Pye v Graham [2001] 2 WLR 1293 which examined human rights principles in the context of adverse possession. Chancel liability has escaped discussion in the few analyses of real property law and human rights.

53 Aston Cantlow & Wilmcote with Billeslq Parochial Church Council v Wallbunk [2001] EWCA Civ 7 13, [2001] 3 All ER 393. For newspaper coverage see ‘Hidden cost of legacy’ Guardian, 11 March 2000.

54 (2000) Times, 28 March.

55 At first instance Ferris J had considered whether, under the doctrine in Derbyshire Counry Council v Times Newspapers [ 19921 QB 770, chancel liability fell to be considered as compatible with the ECHR. Because Fems J concluded that the law on chancel liability was settled, there was no need to have recourse to the Convention. Nevertheless, he went on to consider, obiter, and reject arguments that the application of the chancel liability to the Wallbanks transgressed Convention rights.

56 The otherjudges sitting were Robert Walker and Sedley LW.

57 [2001] 3 All ER 393 at [ 141, [ 151 and [24], citing Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417 and Chivers v Air Ministry [1955] Ch 585.

58 [2001] 3 All ER 393 at [30].

59 [2001] 3 All ER 393.

60 [I9931 AC 593.

61 [2001] 3 All ER 393 at [29]. One sense of ‘intelligible’, given by the New Shorter Oxford English Dictionary, p 1387, is ‘capable of understanding’. In Pepper v Hart [ 19931 AC 593 the issue was whether the word ‘cost’ in the phrase ‘the cost of the benefit’ (in what is now Income and Corporation Taxes Act 1988, s 156(1)) referred to marginal cost or average cost. One may suspect that future cases will reveal a greater richness of ambiguity in the term ‘public authority’.

62 314 HC Official Report (6th series) cols 432-433, 17 June 1998, quoted in A Lester and D Pannick Human Rights law and Practice (London: Butterworths, 1999) pp 30-3 1.

63 D Oliver ‘The frontiers of the State: public authorities and public functions under the Human Rights Act’ [2000] PL 476-493.

64 Support for Oliver may in fact be found in para 33 where, after referring to art 34 as limiting the status of potential victim to ‘any person, non-governmental organisation or group of individuals’ continued ‘from which the state stands distinct’.

65 Oliver, n 63 above, drawing most particularly upon GrifJiths v Smith [ 19411 AC 170; Derbyshire County Council v Times Newspuppers [ 19921 QB 770; Foster v British Gas [ 19901 2 CMLR 833].

66 See H W R Wade and C Forsyth Administrurive Law (Oxford: Oxford University Press, 8th edn, 2000) ch 18.

67 [ 19331 1 WLR publication-type909.

68 [ 19871 QB 815.

69 [2001] 3 All ER 393 [34].

70 In Ex p Dutufin [ 19871 QB 8 15 at 838, Sir John Donaldson MR had emphasised the key criteria and stated: ‘Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to [their] jurisdiction.’

71 [2001] 3 All ER 393 at (34).

72 A point expressly recognised by Momtt V-C in [2001] 3 All ER 393 at [31].

73 See eg, County Courts Act 1984, s 21(3): ‘…if a county court has jurisdiction by virtue of this section … no court other than a county court shall have jurisdiction to hear and determine that action.’

74 In the judgment of [2001] 3 All ER 393 at [37] ‘the Act simply changes the mechanism … The power.. . is a common law power’.

75 Ie since the inclosure award in 1743.

76 [2001] 3 All ER 393 at [32]. The court emphasised (at [35]) that ‘The PCC itself exemplifies the special status of the Church of which it forms a part.. . The successor of the vestry, the PCC is constituted not as a voluntary association but by law’: see Act of Supremacy 1568; Church of England Assembly (Powers) Act 1919; Parochial Church Councils (Powers) Measure 1956.

77 Although it did repeat at [35] that the PCC was ‘an authority in the sense that it possess powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force’. But here again there was no development of the argument. What is intended by the phrase ‘statutory force’, and how does that differ from the statutory force given under the Law of Property Act 1925 given by virtue of the service of a valid notice under that section? In each case the service of the notice merely unlocks the entry to the next stage of the enforcement process, and in each case the statute grants no new right: unless there is apre-existing right neither Act will have anything to bite on.

78 Rv National Trust, exp Scott [I9981 1 WLR 226. It is not felt that the fact that the National Trust is a public body for the purposes of the Local Government Act 1972, s 95 (disclosure etc of pecuniary interests), and that it does have the power to make byelaws under the National Trust Act 1907, s 33 detracts from the point made in the text.

79 As it can, see the detailed discussions in W R Scott The Constitution and Finance of English, Scottish und Irish Joint-Stock Companies to 1720 (Cambridge: Cambridge University Press, 1910-12); and A Dubois The English Business Company afer the Bubble Act 1720-1800 (London: Oxford University Press, 1938), both referred to in Mayson, French and Ryan Company Law (London: Blackstone Press, 15th edn, 2000) para 0.1.2.2.

80 See Scott and Dubois, n 79 above.

81 See M Hill Ecclesiastical Law (Oxford: Oxford University Press, 2nd edn, 2001) pp 48-57.

82 See Parochial Church Councils (Powers) Measure 1956, s 2 and Hill, n 81 above, pp 53-55.

83 Parochial Church Councils (Powers) Measure 1956, s 3.

84 (20011 3 All ER 393 at [37].

85 2R HL Official Report (5th series) ∼01796.3N ovember 1997.

86 Because English land law is posited upon the general principle that benefits and burdens can be attached to titles to land, eg the benefit and burden of an easement respectively attaching to the title to the land benefited and the land burdened. It is, of course, true that there are exceptions to this general principle, so, for example, a servient tenement is not ordinarily liable to expend money for the benefit of the dominant tenement owner: Bond v Nottingham Corpn [ 19401 Ch 429 at 438, per Sir Wilfred Greene MR.

87 [2001] 3 All ER 393 at [40].

88 (1991) 13 EHRR 774.

89 See eg, Re Eurig Estate (1998) 165 DLR 1 at 10 per Major J (giving a judgment concurred in by Lamer CTC, II’Heureux-DuM, Cory and Iacobucci JJ, with Bastarache and Gonthier JJ dissenting but not specifically on this point), adopting the analysis of Duff J in Lawson v Interior Tree Fruit and Vegetable Committee of Direction [ 193 11 SCR 357 at 363, [ 193 11 2 DLR 193, a levy was ‘a tax because it was: (1) enforceable by law; (2) imposed under the authority of the legislature; (3) levied by a public body; and (4) intended for a public purpose’. See further J Tiley Revenue Law (Oxford: Hart Publishing, 4th edn, 2000) pp 1-7.

90 James v UK (1986) 8 EHRR 123.

91 See Sporrong v Sweden (1982) 5 EHRR 35 (para 73) Hiikunsson v Sweden (1990) I3 EHRR 1 (para51).

92 [2001] 3 All ER 393 at [MI-[45].

93 [2001] 3 All ER 393 at [45].

94 (1994) 18 EHRR 440.

95 See [2001] 3 All ER 393 (para 5 1): ‘If the liability were a registrable charge or interest reflected in the purchase price or value of the land, an argument to the contrary might begin to run.’ The court never articulated (i) the relevance of registration given that there was, and always had been, actual notice, and (ii) given the actual notice, what, in the mind of the court, displaced what would seem an inevitable consequence, that the known presence of an incumbrance would be reflected in a lower price.

96 The fact that the Wallbanks had received the property by way of gift does not detract from the point.

97 The court deliberately chose strong language (‘completely arbitrary’ and ‘out of all proportion’: see [2001] 3 All ER 393 at [MI), reasoning that it was arbitrary because there was no relevant difference between the former rectorial land and other freehold and because the liability could arise at any time and be in any sum up to the cost of total reconstruction, resulting in no rational link between the extent or value of the interest in the land and the potential liability.

98 (1996) 23 EHRR 213.

99 [2001] 3 All ER 393 at 1701.

100 [2001] 3 All ER 393 at [50].

101 [2001] 3 All ER 393.

102 (1996) 23 EHRR 213 (para 70).

103 See (2001) Times, 18 May.