The on-going issue of Chancel Repair Liability, (CRL), on which we reported here, here, and here received further consideration on two occasions, both at 17-30 on Wednesday 17th October – a debate in Westminster Hall secured by Peter Luff MP, in whose constituency is the church of St Eadburgha, Broadway which was the subject of recent advice from the Charity Commission; and ‘south of the river’ at a meeting of the Ecclesiastical Law Society which was addressed by Peter Foskett, the Registrar of Bradford Diocese, who discussed the practical issues involved.
In summary, government is not currently proposing to make changes to the present provisions as it believes that:
‘the requirement for registration [of CRL by PCCs] will achieve a much better balance in the law between the interests of the owners of chancel repair liability, the interests of those who are subject to the liability and the interests of those who may at some time in the future become subject to the liability’
Although not legally complex, the registration process involves some costs and investment of resource, and Foskett concludes that
“the lack of any support nationally or at a diocesan level means that the body with the least resources, knowledge or ability to deal adequately with CRL [i.e. the PCC] is left with the responsibility of dealing with it … The Church nationally has failed [through its longstanding antipathy at national level] to prove any real leadership or support to parishes on this issue and I think there is an argument that we have let slip a potentially valuable asset”.
Helen Grant, Parliamentary Under-Secretary of State for Justice, replied to the Westminster Hall debate and her speech repays careful study.
The registration deadline of 13 October 2013 was the tenth anniversary of the coming into force of the Land Registration Act 2002:
“The Court of Appeal appeared to have resolved all the issues to do with chancel repair liability when it decided that the liability was not enforceable and the Land Registration Act 2002 was drafted on that basis. The House of Lords subsequently decided that the liability was enforceable [in PCC of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor  UKHL 37 (26 June 2003)]. In 2003, faced with a newly resurrected chancel repair liability, the then Government responded by making a transitional provisions order under the Land Registration Act, putting chancel repair liability on the same footing as other rights that had their status as overriding interests preserved for a period of 10 years”.
While recognising the importance of chancel repair liability for current property owners and potential purchasers, she pointed out that PCC members
“… who are essentially charity trustees in relation to their local church, have potentially difficult decisions to make about registration and, should it be necessary, enforcement of the liability … In most situations concerning private property rights, only the parties directly involved are engaged, but with chancel repair liability, the surrounding issues may be important for the relationship of the clergy, congregation and wider community in parishes where the liability exists and may be enforced”.
The existence of chancel repair liability over a property was of long standing and no new liabilities had been created:
“The registration of a notice of the liability or a caution against first registration on the land register merely preserves the right to make a claim. Properties subject to a notice or a caution are therefore not subject to a new obligation. In legal terms, in relation to such properties, nothing has really changed”.
If the owners did not know about the obligation before registration,they would no doubt want to be sure that the registration is correct; but the issues brought out by registration would have arisen in nay event had the owner of the liability sought to enforce it:
“Failure to register may make a liability unenforceable, but registration does not guarantee that the claimed liability is legally enforceable. Whether a claim is sustainable will depend on the facts of the case. Homeowners and other landowners remain as free as they are at present to contest a claim. What registration removes is the uncertainty and unpredictability—the lack of discoverability—that currently surrounds the possible existence of chancel repair liability”.
In her view, registration was “a positive development”. Moreover, registration was distinct from actual enforcement of payment of the liability, which would only arise if the chancel needed to be repaired:
“The October deadline does not affect that or the type of decisions that parochial church councils and other owners of the liability will have to make when money needs to be raised … [D]eciding whether to register a notice or caution is a new step for members of parochial church councils, but it is a one-off and should not be any more onerous than past decisions to do with enforcing the liability”.
She conceded that such decisions might not be easy and that legal advice may well be necessary:
“ [T]he Church Commissioners, the diocesan authorities and the Charity Commission are available to help to some degree. For better or for worse, parochial church councils and others who own chancel repair liability have an asset entrusted to them for a specific purpose. I accept that they may not wish to enforce the liability to preserve the harmony of their local communities, but they cannot wish away their responsibilities and, in any event, the providers of public funding for the maintenance of historic buildings will almost certainly take a close look at the reasons behind any decision not to register or enforce the liability” [emphasis added].
She pointed out, however, that
“Overriding interests are interests in land that bind a registered owner whether or not they are on the register. One of the aims of the 2002 Act was to bring more information on to the register, so that it formed a more complete record of legal ownership. Chancel repair liability is a good example of the kind of hidden burden that the policy was designed to expose. The October 2013 deadline for registration is a deadline in the sense that the liability needs to be registered before that date to ensure that it affects those who subsequently buy the land involved. No fee is payable for applications or registrations made before that date. Registration will generally still be possible after that date” [emphasis added].
Finally, while she realised that property owners subject to chancel repair liability would be delighted if the liability were to cease to exist, abolition
“… would probably have to be accompanied by some form of compensation for the owners of the liability, and that money would have to come from somewhere. There is no need to invent ways to release properties from the liability. It can be done by private treaty, although there are pitfalls, or under the formal procedure provided by section 52 of the Ecclesiastical Dilapidations Measure 1923”.
That said, however, she conceded that those options were neither easy nor inexpensive.
In short, the Government was not contemplating any change in the law, though the Ministry of Justice would keep the matter under review.