36
BCD Special Report on
Historic Churches
19
th annual edition
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 1.2m
2
(
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.
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
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.
