The Necessity of the Ecclesiastical Exemption

by Philip Jones

In its present form the faculty jurisdiction is closely connected to the ecclesiastical exemption from listed building consent.  This development is related by Peter Winckworth in A Verification of the Faculty Jurisdiction (1953).

The late 19th century saw a revival of the Gothic style of architecture and a new interest in the preservation of old buildings.  Many churches were neglected and dilapidated.  The early 20th century was also an era of political radicalism, and religious sectarianism (between Christians) was far stronger than it is today.

The radical Liberal government elected in 1906 wished to disestablish the Church in Wales and also to deprive it of a substantial amount of its property.  There was a distinct possibility that Welsh disestablishment might presage the disestablishment of the Church of England as a whole.  Across the Channel in France the anticlerical third republic was seeking to bring much ecclesiastical property under secular control.

The Church of England therefore wished to forestall moves towards secular control of Church property by proposing an effective regime of its own.  In 1913 the then Archbishop of Canterbury, Randall Davidson, successfully persuaded Parliament to exempt ecclesiastical buildings from secular control of ancient monuments, by making his famous ‘pledge’ that the Church of England would take proper care of its buildings by use of the faculty jurisdiction.  This was the origin of the ‘ecclesiastical exemption’.

The modern faculty procedure was largely settled by a committee of diocesan chancellors appointed at the Archbishop’s request.  Their report in 1914 concluded that the protection of churches demanded

(1) faculty applications in all proper cases and

(2) due observance of faculties when granted.

These conditions in turn required an effective enforcement procedure, with the involvement of diocesan advisory committees and archdeacons.

The Archbishop’s pledge and the chancellors’ report were evidently effective.  Ecclesiastical buildings were left to the ecclesiastical courts.  The outbreak of the first world war naturally distracted attention from the subject.  The ecclesiastical courts were provided with a fresh source of activity following the abolition of most of their jurisdiction in the mid-19th century.

The first Faculty Jurisdiction Measure was not passed until 1938, a full quarter-century after the Archbishop’s pledge.  Faculty law expanded in the second half of the 20th century, and seems to have followed the expansion of secular planning and environmental law (which is almost entirely a postwar phenomenon).

The ecclesiastical exemption is currently contained in a statutory instrument of 2010 (no. 1176) (formerly 1994/1771).  The exemption is not particular to the Church of England.  Most Christian denominations also enjoy the benefit of the exemption for their listed places of worship.

The practical effect of the exemption was discussed by Sir John Owen, Dean of the Arches, in St. Luke the Evangelist, Maidstone (1995) Family 1.  It means that the Church may make alterations to the interiors of their listed places of worship without needing the permission of the secular planning authorities.

The Dean explained the importance of the exemption: ‘The recognition that the Church should control the internal ordering of buildings used for worship is … recognition of the freedom to worship’ (p.5).

However, as the Dean noted, ‘planning permission, as well as a faculty, must be obtained for any alteration or extension which materially affects the external appearance of a church’ (p.5).  Thus the grant of a faculty does not preclude the need for planning permission.

The ecclesiastical exemption may well be justified on the ground of freedom of worship.  However, case law suggests that the ecclesiastical courts  are reluctant to exercise the freedom for fear that the exemption will be withdrawn.  The criteria for obtaining a faculty for alterations to a listed church may be stricter than those for obtaining listed building consent for dealings with secular buildings.

This extreme caution was first exhibited by Sir John Owen in St. Mary’s, Banbury (1987) 1 All England Reports 247.  He held that ‘a listing [of a church] does indicate that a faculty which might affect the … architectural or historical interest … should only be allowed in cases of clearly proved necessity’ (p.250).  Liturgical, aesthetic and practical reasons for alteration ‘are all minor when weighed against the fact that St. Mary’s is a [listed] building’ (p.254). 

He then laid down as a guideline for ecclesiastical courts that ‘when a church is listed … a faculty which would affect its character … should only be granted in wholly exceptional circumstances … clearly showing a necessity for such a change’.

This test of ‘necessity’ was strongly criticised by the Court of Ecclesiastical Causes Reserved (‘CECR’) in St. Stephen’s, Walbrook (1987) 2 All England Reports 578.  That case concerned the introduction of a circular stone altar sculpted by Henry Moore.  Sir Ralph Gibson stated that

‘The ecclesiastical exemption … could have imposed on the [ecclesiastical] courts … a restriction in the form stated by the Dean of the Arches [in St. Mary’s, Banbury] … but Parliament did not do so, and I see no reason to impose it by judicial decision … Parliament relied on the care and responsibility of the ecclesiastical authorities … to ensure that churches of special architectural and historic interest are as fully protected in the interest of the general public as are secular buildings in the secular context’ (p.599).

He continued:

‘The principles applied in the faculty jurisdiction have … long recognised the obligation to protect for the whole community and for future generations … churches of special architectural and historic interest against irreversible and inappropriate changes … [However,] the extent of that obligation … is not … rightly defined by the concept of ‘proved necessity’.  The right approach … is to exercise discretion as … Parliament intended that it should be exercised, namely in accordance with established principles and that includes … the interest of the community as a whole in the special architectural and historic attributes of the building and … the desirability of preserving the building and any [special] features … which it possesses.

‘The discretion, however, is to be exercised in the context that the building is used for the purposes of the Church … the service of God, as the Church … perceives how that service is to be rendered’ (pp.599-600).

On this view, the ecclesiastical exemption (which had, after all, existed for more than 60 years before Sir John Owen formulated his test of ‘necessity’) did not impose or demand any new standard, merely the conscientious application of existing standards by the ecclesiastical courts.

Sir Anthony Lloyd, another member of CECR, added that ‘The ecclesiastical exemption … [does not] justify an approach as strict as that laid down in St. Mary’s, Banbury … Listed building consent is given every day in ordinary cases which fall short of ‘clearly proved necessity’ (p.605).

However, these powerful dicta seem to have been ignored by the Arches and consistory courts.  Dean Owen even restated his ‘necessity’ test in the St. Luke’s, Maidstone case, without even mentioning the Walbrook case.

Chancellor Sheila Cameron (later Sir John Owen’s successor as Dean of the Arches) also laid down a requirement of ‘necessity’ for alterations to listed buildings in the unreported case of Bishopsgate in 1993.  According to the so-called ‘Bishopsgate questions’ laid down in this case, the petitioners for a faculty must satisfy the court of the necessity of the alterations, and that the necessity outweighs any ‘adverse effect’ to the building.

In Bishopsgate, Chancellor Cameron defined ‘necessity’ as ‘something less than essential, but more than desirable or convenient’.  This definition may be rather hard to reconcile with the received definition, according to which a necessity is something essential.  In the context of alterations to a church, necessity implies an alteration needed to maintain the structural soundness of the building, or perhaps to maintain its ability to function as a place of worship.

The Faculty Jurisdiction Rules 2000 (No. 2047), the rules currently in force, were drawn up by a committee which included both Owen and Cameron.  Unsurprisingly, the Rules incorporate the necessity test.  Faculty petitioners in listed building cases are required to submit a ‘statement of needs’ explaining why the needs of the parish cannot be met without changes to the church building, and why they are necessary to assist its worship and mission (article 3(3)).

If the test of necessity were applied literally, very few alterations to listed churches could be permitted.  However, the case law suggests that, in practice, the ecclesiastical courts do not apply the test literally, and extend it to permit dealings with churches that are merely desirable or convenient.  Of course, this does tend to render the test rather meaningless.

The case of St. Mary’s, Longstock (2006) 1 Weekly Law Reports 259 provides a good illustration of this.  A faculty was sought for a stained-glass window in a listed church, to commemorate the wife of a former vicar.  There was no objection.

The consistory court concluded that ‘The arguments in favour of this window outweigh any mild adverse effect’ (p.265) and granted the faculty.  Thus the court implicitly conceded that the faculty was necessary.

However, the court was clearly aware of the difficult line of reasoning that the Banbury and Bishopsgate cases involved: ‘How can the replacement of a sound window … with a commemorative window be properly styled ‘necessary’?’ (p.262).  It suggested that the Bishopsgate understanding of a ‘necessity’ is ‘something that is requisite or reasonably necessary’ (p.261).

However, even if ‘necessary’ means only ‘reasonably necessary’, the facts of St. Mary’s, Longstock obviously did not satisfy the test, in any meaningful sense.  The only answer to the court’s own question is that a memorial to a deceased parishioner or vicar’s wife, however worthy and respected, cannot possibly be regarded even as reasonably necessary, but it may be desirable and appropriate.

It may be said for the chancellors and Deans of the Arches that they have more practical experience of the faculty jurisdiction than did the judges who spoke in the Walbrook case.  The ‘necessity’ test may have certain practical justifications to commend it.  Its strictness will appease conservationists and planning authorities who might otherwise wish to deprive the Church of the ecclesiastical exemption.  It will also concentrate the minds of prospective petitioners for faculties, and discourage whimsical, ill-considered proposals.

However, publication in the law reports of an ecclesiastical court judgment which justifies a memorial window as a necessity is unlikely to promote the study or reputation of ecclesiastical law.