What steps should a PCC take?
The Diocesan Registrar holds a list of parishes in the Diocese of Norwich indicating those for which chancel repairing liability has now been extinguished, and those where it continues in force. A copy of this Schedule is available at Chancel Repairs in the Diocese of Norwich, and there is an explanatory note from the National Archive at Chancel Repairing Liability – National Archive 33 which explains the significance of the entries in this Schedule. The note by Derek Wellman at Wellman – Note on CRL explains what information is available in Records of Ascertainment held at the National Archive and at County Record Offices
If there is no land in the parish which may be subject to chancel repair liability then the PCC need take no action. This is generally shown in the Schedule of parishes either by the absence of any entries in columns 2a to 2d of the Schedule, or by an “x” entered in column 2a of the Schedule against the name of the church. The Schedule is, however, not an exhaustive analysis of the liability, and it is possible that liability may exist but is not documented in the record of ascertainments where for example enclosure of the land led to conversion of some or all of the tithes in the parish into corn rents, or there was an allotment of lands in lieu of tithes; or where rectorial glebe land has passed into lay hands; or where the tithes were merged with the land. But if the Schedule is clear, and the parish has no records of its own indicating any other source of chancel repairing liability, it is probably reasonable for the parish to draw a line under its researches at that point. This is on the basis that it may be be very difficult to prove the negative proposition that there is no liability affecting land in the parish, and if, having done reasonable research, the PCC has found no evidence of any liability, it is entitled to conclude that there is indeed no liability, and that no further research need be undertaken.
If there is land in the parish which may be subject to chancel repair liability, the PCC should consider carefully whether it wishes to take steps to identify that land and to register a notice or caution against the property to ensure that if the property is sold or becomes registered after 12 October 2013, the chancel repair liability will continue to run with the land.
The land can be identified from the Record of Ascertainment, which will list fields and other plots of land to which the liability has been attached, and may be accompanied by a tithe map, showing the land affected. Copies of tithe maps for most parishes in Norfolk may be found at https://www.historic-maps.norfolk.gov.uk/mapexplorer/ The same site, maintained by Norfolk County Council, also has other useful maps of the County.
This list and map need to be compared against a modern Ordnance Survey plan to identify the land affected. The next step is to find out from the Land registry whether that land is registered or not, and this is done by conducting a search of the Land Registry Index Map, using Land Registry form SIM, in conjunction with a map of the affected land. The Land Registry will respond with information about the title number of the land, or to confirm that it is not registered.
In relation to land which is unregistered a caution against first registration can be registered (Land Registry Form CT1). In relation to registered land a notice would need to be registered (Land Registry Form AN1 for an Agreed Notice, where the landowner agrees to it being registered, or UN1 where he does not – the Land Registry forms are available on their website at www.landreg.gov.uk/). See forms AN1 and UN1.
However, registration may not be the automatic choice for a PCC for the following reasons:
- It may be expensive to identify parcels of land within the parish which may be subject to chancel repair liability, and the ownership of that land.
- Once the land carrying a potential liability has been identified, a notice or caution will need to be registered at the Land Registry in respect of that land. There was no fee for this provided that the registration was effected prior to 12 October 2013, but registration after that date now attracts a fee of £40 per title for the first three titles, and £20 per title for each additional title.
- The Land Registry may require evidence to be produced to show how the liability to pay for chancel repairs has arisen and how it has devolved onto the land in question, and it may be expensive and time consuming to establish this.
- If the overall cost of registration exceeds the value of the contribution which would be secured, it would not make sense to proceed with registration, since the PCC would be establishing a net liability rather than protecting a net asset.
- Once a notice has been registered, the entitlement to recover contributions to chancel repair costs ceases to be an overriding interest. If the notice is subsequently cancelled, the right to recover contributions from future owners of the property will effectively have been lost, as it will no longer be an overriding interest
- Registration of a notice against the properties in the parish which may be affected may be perceived as an unhelpful or even hostile step, which may adversely affect relations between the PCC and the church on the one hand, and parishioners on the other hand
Notwithstanding these considerations, it may be prudent for the PCC to seek to protect its rights to recover contributions to chancel repair costs by registering appropriate notices at the Land Registry. A PCC wishing to take this step will need to take legal advice to ensure that satisfactory evidence is available to support Land Registry applications.
As a minimum, to ensure that the members of the PCC discharge their fiduciary duties properly, each PCC should have considered and minuted its conclusions on the following questions, ideally before 12 October 2013, though those PCC’s which have not yet done so should still consider taking these steps:
- Whether there is land within the parish which may be subject to chancel repair liabilities. If there is not, the PCC should minute this, and resolve that no further action should be taken to research the matter.
- If the answer to the first question is ‘yes’, whether there is sufficient evidence available to support the registration of the PCC’s rights in respect of particular parcels of land
- If the answer to question 2 is ‘yes’, whether, having regard to the potential advantages, costs and disadvantages of registering rights to receive contributions to the cost of chancel repairs, the PCC wishes to proceed to register such rights in respect of that land
Where a PCC knows that land is affected by chancel repair liability, and is faced with a bill for chancel repairs, the PCC should consider very carefully the benefits and disadvantages of pressing landowners to make a contribution to chancel repair costs. On the one hand, by recovering part or all of the cost from a local landowner or landowners, the PCC will be assisted financially, and may be able to complete urgent repairs more quickly than would otherwise be the case, or to maintain funding for other important projects. On the other hand, however, enforcement of this type of liability may alienate parishioners and could be unhelpful to the wider mission of the church. It may therefore be better to seek ‘voluntary’ contributions to repair costs, rather than relying on strict legal rights. However, PCC’s should make sure that they protect their legal entitlement to recover chancel repair contributions where this is possible, by registering the relevant rights.
Please see also the advice set out by the Legal Division of the Archbishops’ Council at http://www.churchofengland.org/media/51405/chancelrepairliability.rtf
What costs can be recovered under Chancel Repair liabilities?
First, the liability relates only to the chancel, not to other parts of the church, such as the nave or tower.
The liability goes beyond paying for the chancel to be made just wind- and weathertight, and includes putting the fabric and structure of the chancel into good repair. It does not extend, however, to the cost of decorations or furnishings. The amount recoverable in any particular case will depend on a variety of factors, including the way in which the liability arose, the number of landowners identified as having a liability, and their ability to meet that liability.
How should the PCC approach landowners to tell them that their land may be affected by chancel repairing liability?
If the PCC thinks that land in the parish may be affected by the liability, it may be worth writing to landowners to let them know that their land may be affected, and that they might like to explore the possibility of arranging insurance cover against any future liability. Letter 1 is an example of the letter a PCC might write. Alternatively, if a good deal of land was thought likely to be affected, the PCC might circulate a note of advice along similar lines in the Parish Magazine. Once the liability has been confirmed, Letter 2 might follow, perhaps a couple of months after Letter 1. This would give landowners an opportunity to arrange insurance cover in the meantime.
Cancelling the Liability in return for a one-off payment
Alternatively, the PCC might offer an informal arrangement to affected landowners – in return for a reasonable donation to a “Chancel Fund” by the landowners, the PCC could agree not to take any steps to register or enforce the liability. The money in the fund could be held as a restricted fund within the PCC’s accounts, and invested so that when repairs were next required to the chancel, the PCC would have some resources from which to pay for those repairs. There is a formal mechanism for this ‘compounding’ of the chancel repair liability, set out in section 52 of the Ecclesiastical Dilapidations Measure 1923, but that requires a complicated process to be followed, and only works if the whole of the liability, not just an individual landowner’s share, is to be compounded by a payment made to the PCC. When considering either a formal composition, or an informal arrangement, the PCC will need to give consideration to how much money it may need now to meet the future cost of anticipated repairs to the chancel, and to suggest a level of donation accordingly. A simple form of agreement for the composition of liability is available here: Chancel – Agreement to Compound Liability – Apr 2015
If the PCC does not consider it appropriate to register the Chancel Repairing Liability, can confirmation be obtained from the Charity Commission that the PCC’s proposed course of action is reasonable?
If the PCC decides not to investigate, register or enforce chancel repair liability it can make an application to the Charity Commission for formal advice under Section 110 of the Charities Act 2011. If the PCC follows such advice, its members will be protected from any subsequent criticism or claim.
The Charity Commission takes the view that PCCs should:
- Act in good faith solely in furtherance of their charitable aims;
- Not take account of inappropriate considerations;
- Preserve and protect charitable assets, including claims; and
- Where the case calls for it, take into account appropriate legal and other professional advice
The information that the Charity Commission needs to give formal advice will vary depending on the particular circumstances of each case but the Commission will probably want to see that the PCC has:
- Considered the financial cost of surveying, identifying and registering the liabilities;
- Considered the foreseeable need for chancel repairs and their likely costs and timing;
- Considered the potential loss of grant from funders if the PCC have not registered a liability;
- Consulted the Diocesan Registrar and, where appropriate, taken their own professional advice
Any application to the Charity Commission should be made to Kate Waring at JJRCFPJY@punevglpbzzvffvba.tfv.tbi.hx or Charity Commission Direct,PO Box 1227,Liverpool,L69 3UG