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Published online by Cambridge University Press: 31 July 2008
The Church's attitude to housing issues is, of necessity, complicated. At the most basic level, human beings need shelter in order to survive: they need protection from the weather, and from predators, and all human beings need to sleep securely for several hours every day. The Christian gospel enjoins Christ's followers to assist in meeting such human need: “in as much as ye did it unto one of the least of these my brethren, ye did it unto me”.
1. Matthew 25:40.
2. Matt. 5:34; and vv. 19–34 passim.
3. See below for a brief discussion of the sense in which this concept is used in this article.
4. In addition to its parish churches and clergy housing, the Church still owns many thousands of acres of glebe land, and has invested in other forms of real estate.
5. For further consideration of issues such as this, see, for example, Russell, A. J., The Clerical Profession (SPCK, 1979).Google Scholar
6. Though the balance is changing inexorably in favour of non-stipendiary ministry, in accordance with policies which have been advocated at least since the Paul Report in 1964.
7. see Burn's, Ecclesiastical Law, (4th ed.) vol. 2, p. 297Google Scholar; the “manse” originally included the glebe, which is now vested in the Diocesan Boards of Finance under the Endowments and Glebe Measure 1976.
8. the learned editors of Moore's, Canon Law (3rd ed., Mowbray, 1992)Google Scholar comment that “Legislation facilitating removing of incumbents and reorganisation of parishes has eroded a beneficed clergy man's rights to such an extent that it is no longer entirely accurate to describe his office as a freehold.” This erosion of the freehold is likely to gather pace under the present difficulties faced by Dioceses in consequence of the Church Commissioners’ financial problems; see, on reform of the freehold generally, Rupert Bursell, The Parson's Freehold, 2 Ecc. LJ 259.
9. see, on the Victorian reforms generally, Thompson, K. A., Bureaucracy and Church Reform (OUP, 1970), Part I.Google Scholar
10. New Parishes Measure 1943, ss. 13 and 16 (s. 16 as amended by the Church Property (Miscellaneous Provisions) Measure 1960 changes the old rule that the property vested in the incumbent only on consecration of the church or churchyard.
11. Parsonages Measure 1938, s.2.
12. ibid., s.2(l)(a).
13. Perpetuities and Accumulations Act 1964, s.9(2); In some cases where a leasehold is taken, it may be possible to enfranchise under the (rarely used) Religious Premises (Enfranchisement) Act 1920.
14. ibid., s.32. The Pluralities Act was passed to curb the abuse of pluralism, which had been a scandal of long standing. For a not unsympathetic explanation of the problem, see Edwards, D. L., Christian England, (Collins, 1983) vol. 2, pp. 490et seqq.Google Scholar
15. Pluralities Act 1838, s.46: (now repealed by Sch. 4, Church of England (Miscellineous Provisions) Measure 1992) had provided that such licence be limited to a maximum of two years. The licence now appears to be indefinite in duration.
16. Wynn v Smithies (1815) 6 Taunt 198 at 199.Google Scholar
17. ss. 33, 43. 44, Pluralities Act 1838.
18. Ecclesiastical Jurisdiction Measure 1963, s. 14 (l)(b)(ii); Vacation of Benefices Measure 1977, (as amended). The compensation now awarded under the 1977 Measure as amended includes an amount to take into account the loss of housing (Schedule 2, l(2)(b)).
19. Scammell v Willett (1799) (3 Esp 29).Google Scholar
20. Other possible specific cases are also set out in the Act, but none is likely to apply in present conditions.
21. The permission must be under the Archbishop's own hand: s.44 Pluralities Act.
22. As to which see generally Halsbury's Laws (4 ed., vol 14, paras 894 et seqq, especially paras. 913 and 919, and the cases there cited).
23. the exemption on sales derives from s.15 Clergy Residences Repair Act 1776, now incorporated in s.18 Parsonages Measure 1938.
24. There are statutory frameworks for the provision of accommodation of various higher ecclesiastical office-holders; however, these tend to be enabling powers, for example s.3 Episcopal Endowments and Stipends Measure 1943, which empowers the Commissioners to let episcopal houses of residence to the bishops concerned, and s.26 Cathedrals Measure 1963, which authorises administrative bodies of cathedrals to allocate property held by capitular bodies to deans, canons and other cathedral clergy.
25. a model form of licence is set out in the Legal Opinions Concerning the Church of England, (CHP 1994)Google Scholar (hereinafter cited as Legal Opinions), at p. 12; this form was reproduced in the previous edition of the Encyclopoedia of Forms and Precedents (Butterworth, 1967, vol. 8, p. 210)Google Scholar, but is not in the current edition.
26. a recent case in the Lichfield Diocese was widely reported in the press; changes in County Court practice talcing effect from November 1993 mean that tenancies having the status of service occupancies may now be dealt with on a shortened procedure, on application to the District Judge, provided that the arrangement is in writing and all appropriate notices have been served. See, for example, [1994] SJ 36.
27. see Legal Opinions, pp. 120et seqq.Google Scholar
28. In their case, if there is no separate occupation licence, the issue may have been dealt with (and certainly should be mentioned) in the contract of employment with the Board or the PCC, either of which may be the employer, depending upon the circumstances. There are suggested forms of writ ten particulars of employment in Legal Opinions (pp 126 et seqq), but they do not include an explicit reference to residence, presumably on the basis that this will be dealt with separately by licence or tenancy agreement between the parties. It would, however, in the writers' view, be prudent to make cross reference between the documents so that it is quite clear that the right to occupy terminates simultaneously with termination of the appointment.
29. One proposal on which the writers have recently been asked to advise is the occupancy of vacant parsonage houses by non-stipendiary ministers licensed to serve on a long-term basis in parishes; legally, this is a straight-forward arrangement, taking effect as a sequestrators' letting, but it creates in effect a two-tier NSM pattern, in which some non-stipendiary clergy are totally unremunerated, and others receive free or subsidised accommodation from the Church as if they were stipendiaries.
30. A further issue, of considerable importance in the light of the Commissioners' difficulties, is the provision of housing for retired church workers; it might be considered whether there might be scope for clergy to build up a ‘share-holding’ in the various properties they occupy during their working lives, which could then be ‘cashed in’ on retirement to enable them to provide retirement housing. There must be some doubt how much longer the Commissioners can continue to provide retirement housing on the schemes they presently operate.
31. [1993] 2 All ER 300; commenting upon the proposition that “land owned by the [Church] Commissioners in a village where local young people are finding housing difficult to afford … might be made available for low-cost housing at a price below the open-market value”, the Vice-Chancellor commented that “The Commissioners are not a housing charity. There is force in the Commission ers' contention that local housing needs are or should be reflected in local planning policies. When planning permission is available for a particular type of development, it is not a proper function for the Commissioners to sell their land at an undervalue in order to further a social objective on which the planning authority has taken a different view … If the Commissioners' land is to be disposed of at an undervalue, they need an express power to do so“ (at 309).
32. see Parochial Church Councils (Powers) Measure 1956 and Legal Opinions, pp. 1 seqq and 199 et seqq. “The whole mission of the Church comprises not only religious objects in the narrow sense, but also the Christian duty of relieving the poor, the sick and others in need” (ibid., p. 200) - this comment is in the context of donations to other charitable purposes (usually the relief of poverty), but the principle may be capable of extension to other use of PCC property. However, charitable donations themselves are challenged from time to time, and PCCs will be aware of the degree of unease that might result if they were to commit property to long-term use in this way.
33. Matt. 25:45.
34. see, for example, Bourke, Michael, The Archdeacon's Dilemma, (Theology, 05 1989), p. 196.Google Scholar
35. see note 31 supra.
36. [1943] 1 All ER 101.
37. If the relevant notice is not contained in the lease, the lease itself is null and void. For a precedent of the notice, see Encyclopoedia of Forms and Precedents (Butterworths, 1987) vol. 13, p. 101, Form 53.Google Scholar
38. [1943] 2 All ER 108.
39. The writers are aware of several recent cases which have not been reported and in which the issue has not been raised by the defendant tenants.
40. In a recent unreported case, it is understood that a County Court judge did grant security of tenure of a cottage in the grounds of an existing parsonage house. This case is considered by the writers to have been wrongly decided. In a recent case where the incumbent will be remaining in the ‘old’ house and the new house erected in its garden is let commercially, the writers have drafted the lease in alternative form, making reference to both the Pluralities Act and the Housing Act.
41. S.59PA1838.
42. in which case, particular care will need to be taken, since a lease by the board will not fall under the protection of the Pluralities Act, and will attract the protection of the Housing Act 1988.
43. see Encyclopaedia (op. cit.) p. 1010, Form 54.
44. The unease generally results from fear that letting signifies that the vacancy will not be filled, or will be delayed unduly. In one recent case in the Diocese of Oxford, there were a dozen wardens to be consulted, three of whom refused to agree to the letting, and the matter was resolved only by per sonal intervention of the archdeacon and reference being made to the bishop's power to direct sequestrators in the care of the parsonage house under the Benefices (Sequestrations) Measure 1933, s.2(2)(ii).
45. (1947) 177 LT 581 CA.
46. Housing Act 1988, s.7(3) and Schedule 2, Ground 5.
47. Charities Act 1993 s.36; in the case of short lettings, this needs only to be a person reasonably believed to have the ability and practical experience to advise; but NB the important exceptions to this requirement in favour of ecclesiastical corporations (including incumbents as corporations sole) and glebe land, under s.96(2) of the 1993 Act.
48. see the TCPA 1990, 106A (introduced by the Planning and Compensation Act 1991).
49. note in this connection the clear but restrictive directions given to landowners by the Court of Appeal in Surrey CC v Bredero Homes Limited, [1993] 3 All ER 705.Google Scholar
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