Landowners liable for repairs to village church
A landowning couple have discovered that they are liable for repairs to the local parish church.
The couple had bought former glebe land. Under medieval canon law, the owners of such land were lay rectors of the parish, and were liable for the cost of repairs to the chancel of the parish church. There was a reciprocal right to tithes, but that was abolished in 1936. The couple were presented with a bill for repairs in 2000, which they refused to pay.
The case has only now been decided by the House of Lords, by which time the costs had climbed almost to £200,000.
What does this have to do with tax? Well, when I read the news report of the House of Lords' decision, I remembered coming across this very case a few years ago, but in the context of tax and human rights. I did a little digging, and sure enough, there it was: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2001] EWCA Civ 713. This was at the Court of Appeal. The couple had argued that the liability for payment was contrary to the Human Right Act 1998, specifically, their right to peaceful enjoyment of their possessions. In addition, section 6 of the Human Rights Act 1998 provides that a public body must not act in a way that is incompatible with a right conferred by the European Convention of Human Rights.
The couple had bought former glebe land. Under medieval canon law, the owners of such land were lay rectors of the parish, and were liable for the cost of repairs to the chancel of the parish church. There was a reciprocal right to tithes, but that was abolished in 1936. The couple were presented with a bill for repairs in 2000, which they refused to pay.
The case has only now been decided by the House of Lords, by which time the costs had climbed almost to £200,000.
What does this have to do with tax? Well, when I read the news report of the House of Lords' decision, I remembered coming across this very case a few years ago, but in the context of tax and human rights. I did a little digging, and sure enough, there it was: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2001] EWCA Civ 713. This was at the Court of Appeal. The couple had argued that the liability for payment was contrary to the Human Right Act 1998, specifically, their right to peaceful enjoyment of their possessions. In addition, section 6 of the Human Rights Act 1998 provides that a public body must not act in a way that is incompatible with a right conferred by the European Convention of Human Rights.
This therefore led to the question whether the parochial church council (PCC) (which made the demand) was a public authority. In answering this question, the Court took into account the special status of the established Church of England. It also considered that the state of the parochial church council (PCC) was constituted, not by voluntary association, but by statutory law.
The Court also examined case law. Conclusion? The PCC was a 'public authority'. In the words of Sir Andrew Morritt, the PCC was:
The Court also considered in detail the right to peaceful enjoyment of one's possessions, as set out in Article 1 of the First Protocol to the European Convention of Human Rights. That right also prevents anyone from being deprived of his possessions (including money) except in the public interest, and subject to conditions provided by law, including international law.
However, the right to peaceful enjoyment of one's possessions does not prevent the State from enforcing any laws deemed necessary to control the use of the property in the general interest, or for the payment of taxes. So even if the Court of Appeal were to concur that the liability ran counter to the right to peaceful enjoyment, one of the issues was whether that right was overriden by the exceptions outlined above.
In deciding this, the Court first considered whether the levy was a form of taxation. It concluded that it was a tax on the ownership of land. As to whether the tax was in the public interest, the Court was of the view that a levy for the upkeep of England's church buildings was in the public interest.
The Court then considered whether the tax was levied in conditions provided for by law. As a starting point, Sir Andrew stated that that the legitimate aim of taxation in the public interest must be pursued by means which are not completely arbitrary or out of all proportion to their purpose. This test was then applied to the facts of the case. The Court concluded that the liability for the tax in this case was arbitrary. It was arbitrary in its incidence, falling as it did on land which was now no longer connected to the church in any way, and which was no different from any other freehild land. It was also arbitrary because the liability could arise at any time and in any amount. The taxpayers' appeal was allowed.
That was a few years ago. Not content with the Court of Appeal's decision, the PCC appealed. It is that appeal which has now been allowed by the House of Lords. The couple are now facing a bill for repairs of almost £200,000 and legal fees of an approximate amount. I am interested in the reasons for which the House of Lords overturned the judgement of the Court of Appeal. I agreed wholeheartedly with the Court of Appeal's reasoning, and it would be interesting to see what contrary reasoning the House of Lords employed. I will be writing another article once I have read the case report.
The Court also examined case law. Conclusion? The PCC was a 'public authority'. In the words of Sir Andrew Morritt, the PCC was:
"... an authority in the sense that it possesses powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force. It is public in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church.".
The Court also considered in detail the right to peaceful enjoyment of one's possessions, as set out in Article 1 of the First Protocol to the European Convention of Human Rights. That right also prevents anyone from being deprived of his possessions (including money) except in the public interest, and subject to conditions provided by law, including international law.
However, the right to peaceful enjoyment of one's possessions does not prevent the State from enforcing any laws deemed necessary to control the use of the property in the general interest, or for the payment of taxes. So even if the Court of Appeal were to concur that the liability ran counter to the right to peaceful enjoyment, one of the issues was whether that right was overriden by the exceptions outlined above.
In deciding this, the Court first considered whether the levy was a form of taxation. It concluded that it was a tax on the ownership of land. As to whether the tax was in the public interest, the Court was of the view that a levy for the upkeep of England's church buildings was in the public interest.
The Court then considered whether the tax was levied in conditions provided for by law. As a starting point, Sir Andrew stated that that the legitimate aim of taxation in the public interest must be pursued by means which are not completely arbitrary or out of all proportion to their purpose. This test was then applied to the facts of the case. The Court concluded that the liability for the tax in this case was arbitrary. It was arbitrary in its incidence, falling as it did on land which was now no longer connected to the church in any way, and which was no different from any other freehild land. It was also arbitrary because the liability could arise at any time and in any amount. The taxpayers' appeal was allowed.
That was a few years ago. Not content with the Court of Appeal's decision, the PCC appealed. It is that appeal which has now been allowed by the House of Lords. The couple are now facing a bill for repairs of almost £200,000 and legal fees of an approximate amount. I am interested in the reasons for which the House of Lords overturned the judgement of the Court of Appeal. I agreed wholeheartedly with the Court of Appeal's reasoning, and it would be interesting to see what contrary reasoning the House of Lords employed. I will be writing another article once I have read the case report.
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