Unauthorised Works

Charles Mynors

 

Poorly integrated window guard Well integrated window guard recessed behind profile of stone mullions
All external alterations which materially affect the external appearance of a place of worship require both planning permission and a faculty. Window guards have a significant impact on character, particularly if poorly integrated and badly maintained (top left).

 

It is perhaps not surprising that there are relatively few instances of unauthorised works to churches. After all, those who are responsible for churches in use are usually conditioned to obey the law. St Paul, in the Epistle to the Romans, after observing that the authorities (‘the powers that be’) have been established by God, concludes that it is necessary to submit to the authorities not only because of possible punishment but also as a matter of conscience. And the authorities at the time he was writing included the Emperor Nero, who was presumably more troublesome than even the most difficult local planning authority or diocesan chancellor.

However, mistakes happen. Usually they arise not due to a pig-headed vicar or parochial church council (PCC) deliberately flouting the authorities, although that is not unknown, but because of ignorance or impatience. Ignorance of what consents are required and how they can be obtained is not entirely surprising, given the intricacies of the system. Impatience is also understandable, given how slowly the system operates in some cases. But the results can be unfortunate. There was the PCC which sold a fine set of Royal Arms without any authority; the vicar who covered the floor of his chancel with ceramic tiles, thinking (wrongly) he had a faculty; and the churchwardens who sold medieval oak chests for much less than their true value.

If there is to be any system of control over what goes on in churches, it is important that breaches of the rules are the subject of appropriate enforcement action. If they are not, there is no incentive for the idle to find out what the rules are and no incentive for the obstinate to abide by them. The secular planning system thus provides for the issue of enforcement notices where unauthorised works are capable of being remedied, and criminal prosecution – in the case of buildings (other than churches) that are listed – to deal with breaches that cannot be reversed. The Church of England faculty system provides for equivalent procedures in relation to its places of worship, as do the approval systems of all the main denominations.

Indeed, one of the requirements to be satisfied by a church body seeking exemption from the secular system of listed building control (in the Code of Practice, Annex A, DCMS guidance 2010: see recommended reading) is that its procedures should include arrangements for dealing with any breach of the control system, including provision for the reinstatement of works to listed buildings carried out without consent. Those arrangements must be published, with copies provided to planning authorities, English Heritage and the national amenity societies.[1] If all goes well, they will rarely be invoked. But it is in the interests of the church bodies, and thus of each congregation, that there is public confidence in the system.

ENFORCEMENT BY THE LOCAL PLANNING AUTHORITY

Planning permission will not often be required for works to an existing church, although it will be needed where building operations are carried out to the exterior. This obviously applies to the construction of a large extension but it can also apply to works as minor as fitting new window guards. The test is whether the proposed works will materially affect the external appearance of the building (Town and Country Planning Act 1990, section 55(2)(a)) and in applying that test it will be relevant to consider the architectural or historic interest of the building. Planning permission will also be required for building works of any consequence in the churchyard, such as the realignment of an existing path, the construction of a new one, or a major re-landscaping exercise.

Works to churchyard walls will be permitted by Part 2 of Schedule 2 to the General Permitted Development Order 1995. But there is no other relevant class of permitted development so all other building operations, except those that are purely internal, will need to be permitted explicitly by the planning authority (or by the Secretary of State on appeal).

If such permission is not sought simply because of ignorance or misunderstanding, the planning authority will often be content to grant it in response to a subsequent application. But if the authority considers that the works are for some reason undesirable (such as where unattractive window guards have been fitted to the exterior of an important listed church), it may issue an enforcement notice seeking their removal. It is possible to appeal against such a notice before it comes into effect but if no such appeal is made (or if an appeal is made but fails), failure to comply with the notice is a criminal offence.

Secondly, where the trees in a churchyard are subject to a tree preservation order (TPO), the consent of the planning authority will be needed under the Tree Preservation Regulations 2012, subject to various exemptions, few of which will be relevant. In cases where, as often occurs, a churchyard is in a conservation area, six weeks’ notice generally needs to be given to the authority of proposed works to any tree, to enable it to decide whether to impose a TPO. In either case, unauthorised works could lead to those responsible – in practice, the PCC or the church elders – being prosecuted. A replacement tree will also have to be planted.

Thirdly, signs and notices will require consent under the Control of Advertisements Regulations 2007. Deemed consent will be granted automatically for a church notice board, but only if it is less than 1.2m2 (two such boards are permitted if the land has more than one road frontage) (Sched 3, para 2C). Again, an unauthorised sign may be the subject of a criminal prosecution. More likely, it will simply be removed by the planning authority after giving notice.

The above requirements apply to places of worship of any denomination, or indeed any religion, as they do to any other property. Thus, in spite of an apparently widespread belief to the contrary (not least, oddly, on the part of many planning authorities) there is no ecclesiastical exemption from planning permission, tree consent, or advertisements consent. Obviously, for reasons already noted, it also ill becomes church congregations to flout secular planning rules.

FACULTIES

In addition to secular planning control, and of considerably greater importance in practice, is the system whereby works to a place of worship and the land surrounding it need to be authorised by the relevant denominational body.

The most commonly encountered of these systems, the faculty jurisdiction of the Church of England, goes back to medieval times. It is often assumed that it is simply a surrogate planning system, enabling works to churches to be controlled in the public interest. However, its function is somewhat wider than that, reflecting the general principle that those responsible for charitable funds and other property cannot simply use them as they will. As one leading text book puts it, its main purposes are to protect the interests of succeeding generations of parishioners and the country at large, to settle disputes between interested parties and to provide safeguards against illegality and ill-considered change (Halsbury’s Laws of England, 5th ed, vol 34, para 1067). Thus, for example, an enthusiastic vicar cannot introduce into a church a beautiful statue of Buddha obtained while on sabbatical in south-east Asia, and a lazy PCC cannot sell the church silver to pay the parish share of diocesan expenses.

New church kitchen facilities sympathetically concealed in bespoke wooden cabinets  
Kitchen facilities and a new floor in the side aisle of a church: legislation is intended to control change, not prevent it. New
facilities need to be sensitively designed to minimise their impact,
and proposals for the removal of fittings such as pews need to be carefully considered before being permitted.
 

The current position is thus that a faculty is required ‘if any alterations, additions, removals, or repairs are proposed to be made in the fabric, ornaments, or furniture of the church’ (The Canons of the Church of England, F13, para 3). That covers a much greater range of activities than those that would require listed building consent in the absence of the ecclesiastical exemption, in that it includes the acquisition and disposal of chattels (items not physically attached to the building, such as books, hassocks, and vestments). It also applies to all churches, including those that are not listed, where neither planning permission nor any other consent from the planning authority would be required for internal works.

In the case of uncontroversial minor works, specified in a list produced by the chancellor of each diocese following consultation with the diocesan advisory committee (DAC), no faculty is required. Otherwise, it is the duty of the vicar and churchwardens to seek a faculty before any such works are undertaken (Canons, F13(3), C1(3), E1(4)), after first consulting with the DAC. A faculty is granted by the consistory court – that is, in practice, the chancellor or, in less significant cases, the archdeacon.

It is because of the existence of the faculty system regulating works to all Anglican churches, including internal works, that successive governments since 1948 have seen fit to exempt such works from the secular system of planning control, which would otherwise apply to internal works to listed churches affecting their special character. More recently, that exemption has been extended to apply to the other main denominations: the Church in Wales, the Roman Catholic Church, the Baptist Union, the United Reformed Church and the Methodist Church.

ENFORCEMENT OF THE FACULTY SYSTEM

It falls in the first instance to the archdeacon to enforce the requirements of the faculty system: to ensure that a faculty is obtained by parishes before works are carried out and that any conditions attached to the faculty are complied with. It is the archdeacon who is charged to see that all those with ecclesiastical offices perform their duties with due diligence and to bring to the attention of the bishop anything that calls for correction or merits praise (Canons, C22(4)). In practice, if there appears to have been a breach of the faculty system, he or she will refer the matter to the diocesan chancellor.

In many cases, the difficulty will have arisen because of a misunderstanding of the system, as where a parish proceeds with works on the basis of a general comment by the DAC broadly supportive of the principle behind a proposed scheme, but subject to seeing and approving details before any works are actually carried out. Although it is theoretically possible in such a situation to require the works to be undone, that will often be impossible in practice and it may therefore be better for a restorative scheme to be worked out and approved by the grant of a confirmatory faculty (as in St Edburga, Leigh, Worcestershire, 2004).

In many cases there will be no wish to reverse works that have been completed, since they are in fact acceptable to all. Here too, a confirmatory faculty will usually be appropriate: ‘where there has been genuine ignorance on the part of the petitioner about the need to obtain a faculty, and the action for which a confirmatory faculty is sought was done in good faith… then it is necessary to proceed to the next stage of identifying appropriate conditions to be attached to the faculty which are fair and just in all the circumstances’ (Welford Rd Cemetery, Leicester, 2007).

However, in one of the earliest decisions relating to a confirmatory faculty, the chancellor emphasised that this is not a retrospective faculty. ‘Work done without a faculty is illegal, and remains illegal for all time. If, however, a confirmatory faculty is granted, it means that from that point in time onwards the situation is legalised; but it does not retrospectively legalise what has already been done, and the perpetrators of the illegalities remain personally liable for any wrong they have committed, though for the future the confirmatory faculty brings them within the four walls of the law’ (St Mary, Balham, London, 1978).

In extreme cases, this may lead to further action against those responsible. In the words of one chancellor, ‘the parish priest, with the churchwardens, directed the execution of major works to the ancient and fine church in his care without due authority and in the knowledge that he had no authority. In my judgment this was a serious breach of his obligation of canonical obedience. He should appreciate that if he should ever again execute works to the church… without having that authority, he may, in the light of my above findings, have to face [disciplinary proceedings]’ (St Thomas a Becket, Framfield, Sussex, 1987).

Further as one chancellor remarked, following the carrying out of various works to a Grade I listed church without a faculty, ‘because the Church of England and therefore its officers such as the minister and churchwardens are trustees of the heritage for the parish, the diocese and the nation, ignorance of the law and even well-intentioned breaches of the law cannot and will not be tolerated’ (St Giles, Durham, 1998).

INJUNCTIONS

In an emergency, where it appears that unauthorised works are about to be carried out that will be harmful, and especially where they will be irreversible or where such works are indeed already under way, the chancellor may issue an injunction to bring them to a halt (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, section 13(4)). Where such works have already been carried out, the chancellor can make a restoration order to restore the position to that which existed previously (section 13(5)). The procedure in either case is governed by the Faculty Jurisdiction (Injunctions and Restoration Orders) Rules 1992.

  The exterior of St John the Baptist, Bromsgrove
  St John the Baptist, Bromsgrove: an injunction was served by the consistory court to prevent the introduction of
fibreglass roofing following the theft of its lead until a faculty had been obtained.

Thus in a recent case, where a PCC was concerned about the ingress of water following the theft of lead from the roof, it threatened to proceed immediately with replacing the roof with glass-reinforced plastic, even in the face of strong opposition from English Heritage. The chancellor responded by making it clear that, notwithstanding the urgency of the matter, the consistory court would issue an injunction preventing further works until a faculty had been issued. The parish backed down and shortly afterwards a faculty was forthcoming (St John the Baptist, Bromsgrove, Worcestershire, 2012).

An injunction may be issued or a restoration order may be made either by the court itself or on the application of any person appearing to the chancellor to have a sufficient interest in the matter (section 13(6)). This includes, among others, English Heritage, the national amenity societies and the local planning authority. It is perhaps significant that one of the first injunctions to be obtained under the new procedures was at the behest of a planning authority – as it happens, to prevent unauthorised tree-felling rather than works to the church building (St Margaret, Tylers Green, Buckinghamshire, 1994).

As with all injunctive relief, an injunction may, in an emergency, be obtained almost immediately. In the first instance, the diocesan registrar should be approached. In practice, however, injunctions and restoration orders are only very rarely issued under these powers.

OTHER CHURCH BODIES

The denominations other than the Church of England that are exempt from secular listed building control (see ‘Faculties’ above) have similar procedures, although in some cases they may be somewhat less well developed than those of the Church of England, simply because there are a smaller number of churches of special architectural or historic interest involved. Details should be sought from the website of the body concerned.

A SIGNIFICANT RESPONSIBILITY

The well-remembered formula from the general confession in the Book of Common Prayer, elaborating on the broad proposition that ‘we have offended against thy holy laws’, actually contains two strands. The second is that ‘we have done those things which we ought not to have done’. As indicated above, that may occur in relation to unauthorised works to churches, although it is likely to be relatively rare. But those who flout the rules can expect to be the subject of enforcement proceedings, by secular or denominational authorities, just as much as anyone else. Indeed, arguably, churches should expect less sympathy than others.

However, the more common problem is the first one: ‘We have left undone those things which we ought to have done’. Churches simply fail to seek consent, either because they do not know they need it, or because they cannot be bothered to negotiate all the procedural hurdles. But, to return to Romans 13, ‘rulers hold no terror for those who do right, but only for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. For the one in authority is God’s servant for your good’. That imposes a significant responsibility on those in authority, who make and impose the rules, but also on those who have to abide by them.

 

~~~

Recommended Reading

The Canons of the Church of England, 7th ed, Church House Publishing, London, 2012

The Operation of the Ecclesiastical Exemption and related planning matters for places of worship in England: Guidance, The Department of Culture, Media and Sport, London, 2010

Notes

[1] The national amenity societies are: The Ancient Monuments Society, the Council for British Archaeology, the Society for the Protection of Ancient Buildings, the Georgian Group, the Victorian Society and the 20th Century Society.

 

 

 

Historic Churches, 2012

Author

CHARLES MYNORS PhD FRTPI FRICS IHBC is a barrister in practice at Francis Taylor Building in the Temple. He is the chancellor of the Diocese of Worcester and the author of a number of books, including Listed Buildings, Conservation Areas and Monuments (4th ed, 2006) and The Law of Trees, Forests and Hedges (2nd ed, 2011). His forthcoming book Making Changes to Churches and Churchyards, Faculty Jurisdiction Explained: A Guide to Law and Practice is due out in 2014.

 

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