Government rejects new calls to do away with chancel repair liability

The government has rejected fresh calls by MPs to reform chancel repair liability law that would see churches choosing not to enforce their right bound by their decision in all future cases.

An interest in land dating back to Henry VIII, chancel repair liability is a burden on property which means owners may be made to pay for the repair of the chancel of a church.

Under a 2003 amendment to the Land Registration Act 2002, parochial church councils (PCC) with chancel repair rights must register their interest with the Land Registry if they want to remain able to use it.

Last week, Peter Luff, MP for Mid Worcestershire, tabled a proposal for 'a simple piece of legislation' which would provide that where a council is acting on the Charity Commission's advice and decides not to enforce the liability, 'its decision is binding in perpetuity and cannot be revisited'.

Explaining the government's rejection of the proposal a spokesperson for the Ministry of Justice told Solicitors Journal that registration under the 2002 Act would 'make it easier for homeowners to discover if their property is affected'.

She continued: 'We are, however, aware of concerns and will keep the situation under review.'

The statement confirmed the views expressed last month by Helen Grant, then under-secretary of state for justice, during parliamentary debates that the government had no plans to review the law.

'Chancel repair liability is a valid property right, which has been upheld by the House of Lords,' she said. 'Properties have been sold subject to the liability, and insurance can be made available. The requirement for registration will help greatly in dealing with the problem of discoverability.'

Grant said about 5,200 ancient churches were thought to benefit from the liability and that 'a large number of properties' were burdened as a result.

She defended the rules on registration saying they removed uncertainty and unpredictability.

Jeremy Lefroy, MP for Stafford, and Nia Griffith, MP for Llanelli, supported Luff's proposal.

'Given the difficulties the minister has just referred to, could there not be a simpler solution by doing away with the need to have the liability in the first place?', Griffith asked.

Grant's response was described by Luff as 'the ultimate long grass manoeuvre' and left parochial church councils in the middle of 'a perfect storm'.

The 2002 Act provides that the liability will remain binding on new owners of the properties affected if parochial church councils have positively identified and registered their right by 13 October 2013 '“ the ten year deadline set in the 2003 amendment.

If liability exists but is not registered, a PCC will be able to enforce it against current property owners until the property changes hands, when it will be extinguished.

It is usually understood that if a PCC does not register the liability it can be held to be in breach of its duty under charity law to maximise income. Failure to do so could also make church wardens and PCC members personally liable.

However, under section 110 of the Charities Act the Charity Commission can confirm that a PCC can be deemed to have behaved responsibly as trustees if they decide not to enforce the liability.

Reliance guidance secured under this provision can be used to counter refusals by English Heritage to provide funding for the repair of historic churches if the PCC declines to enforce the liability.

Grant funding has since moved to the Heritage Lottery Fund, which, according to Luff, has said 'it will not require church communities to register the liability to receive grant funding'.

The amendments to the 2002 Act were introduced after the House of Lords overruled the Court of Appeal in the case of Wallbank v Aston Cantlow [2003] UKHL 37 and decided that liability was enforceable.

Luff, in whose constituency is adjacent to Aston Cantlow, started campaigning for reform after his constituents in Broadway PCC argued that registration of the liability would work against their fundamental duties. The Charity Commission agreed that the Broadway PCC was free not to enforce the liability.

The Law Society called for the abolition of chancel repair liability in 2006 on the grounds that it increases the cost of conveyancing and is 'uncertain and capricious'.

The Law Commission in a 1998 consultation report provisionally recommend the retention of chancel repair liability as an overriding interest in cases where it has not been noted on the register.