BCD Special Report on
Historic Churches
19
th annual edition
37
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.
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 (www.culture.gov.uk/images/
publications/OPSEEguidance.pdf)
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
(4
th ed, 2006) and
The
Law of Trees, Forests and Hedges
(2
nd ed, 2011).
His next books,
Changing Churches
and
Caring
for Churchyards
will between them provide
a complete guide to the faculty system.
Notes
�
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.
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.
