A piece in Monday’s Telegraph about chancel repair liability was headlined “Thousands face bills for church repairs under 500-year-old law”. It was followed up on Tuesday by a longer piece by Peter Stanford. The print version of the first article (which differs from the on-line version) began like this:

“Thousands of families are set to receive warnings that they could face large bills to repair their local church, even if they have never attended it. Parishes were ordered to enforce a 500-year-old land law that has been little used and was largely forgotten…

After the last government attempted to tidy up the law, parishes have been ordered to trawl through land records dating back hundreds of years to clarify exactly who is liable.

The ten-year legal deadline expires next year and parochial church councils risk being held legally responsible if they fail to comply. PCCs are groups of volunteers who administer individual parishes and are likely to be neighbours of those affected”.

Though not wildly inaccurate, the original report in the Telegraph was ever so slightly fuzzy in various respects.

First, to describe chancel repair liability as “largely forgotten” – implying that no-one apart from a few ecclesiastical law geeks had ever heard of it until the judgment in PCC of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor [2003] UKHL (26 June 2003) – is just a little disingenuous. Though the liability was originally one at common law, Parliament made a conscious decision to confirm its validity by passing the Chancel Repairs Act 1932 and, like it or not, that Act, as amended by the Land Registration Act 2002, happens to be the current law. The Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003 provides that chancel repair liability will continue to be an overriding interest for a period of ten years from 13 October 2003. So it is not merely something that has been lurking in the background, completely forgotten, since the time of Henry VIII.

Moreover, Stanford suggested that Mr & Mrs Wallbank

“… vaguely knew about the ancient covenant on the property, but thought that at most it meant putting a tenner in the vicar’s collecting bucket when he came round for a sherry before Christmas”.

That was not, however, the view of Lord Hope of Craighead, as he made clear in his judgment in Aston Cantlow – the Wallbanks had been unfortunate but the existence of the liability had been clear from the outset:

“The conveyance of Glebe Farm to Mrs Wallbank’s parents in 1970 described the land as subject to the liability for the repair of the chancel mentioned in previous conveyances. Their deeds of gift to Mrs Wallbank in 1974 and 1986 also referred to the chancel repair liability. This is a burden on the land, just like any other burden that runs with the lands. It is, and has been at all times, within the scope of the property right which she acquired and among the various factors to be taken into account in determining its value” (at para 71).

Secondly, PCCs are much more than merely “groups of volunteers who administer individual parishes”. Each Church of England parish is a charitable trust of which the members of the PCC are the trustees – which means that they are under a legal obligation to act in the best interests of the trust. Indeed, the Telegraph further reports that the Charity Commission

“… has warned that individuals on PCCs could be liable for repairs if they do not comply. The Church says that English Heritage will not provide grants for repairs to historic churches if an existing duty on parishioners has not been imposed. A spokeswoman for the Charity Commission said it would take requests for exemptions seriously but added: ‘The likelihood of the need for chancel repairs also needs to be taken into account in the PCC’s decision making, as does the potential loss of grant-funders if it was identified that the charity had not registered a liability’.”.

The fundamental point that the Telegraph fails to make clear is this: the members of a PCC are potentially liable not simply because they are members but, because by virtue of being members, they are the trustees of the charity and are therefore bound by charity law. And, leaving aside any wider argument about the pastoral and reputational consequences for a parish church of imposing a chancel repair liability on the lay rectors, to lose potential grant as a result of failing to register an interest with the Land Registry might conceivably be regarded as a breach of trust.

Thirdly, though chancel repair liability is an immensely difficult issue there is no alternative quick fix. Those PCCs to which it applies are – understandably – very worried that they might have to impose it and, in doing so, antagonise local people. Equally, however, external funding for repairs even to listed places of worship is extremely tight. Or as the outgoing Chief Secretary to HM Treasury, Liam Byrne, put it in his memorable if ill-judged note to his successor after the 2010 General Election, Dear Chief Secretary, I’m afraid to tell you there’s no money left. And in purely legal terms the imposition of chancel repair liability is entirely legitimate – however unfortunate its consequences may be in practice.

So where, in such circumstances, are hard-pressed PCCs to turn? Damned if they do: damned if they don’t.