St Mary’s Churchyard, White Waltham (No.2)

by Philip Jones

(2010) 3 Weekly Law Reports 160, Oxford Consistory Court, Bursell Ch

This case concerned the construction of a Sunday school building in the churchyard, a development to which certain parishioners objected.  It raises a number of issues concerning the exercise of the faculty jurisdiction.

Parochial feeling

The chancellor held that the parochial church council (PCC) ‘represents the body of the parishioners and, if any parishioner objects to [its] decisions … [he may] seek election to that body and … endeavour to overturn [a decision]’ (p.1566).  He concluded that he was ‘entitled to accept the views of the PCC as representing the … silent majority of the parishioners’.

This dictum draws attention to an important point.  The late 19th century faculty cases, which attached great importance to ‘parochial feeling’, were decided before PCCs were legally established.  It could therefore be argued that modern ecclesiastical courts should not attach the same importance as their Victorian predecessors to objections from parishioners to a proposed development, if that development is supported by the PCC.

This is a valid point but it should not be pressed too far.  Every PCC includes a significant number of unelected members, and it is chaired by the incumbent, not by a lay parishioner (Church Representation Rules 14 and 15).  A PCC may have been elected before the faculty was proposed, or before the implications of it were properly appreciated.  Many different factors may influence the election of a PCC, not just a particular faculty. 

Even if parochial opposition comes only from a minority, this may still justify refusal of a faculty on pastoral grounds.  The consistory court should also remember that its pastoral responsibility extends to all the parishioners, not just those on the parish electoral roll. 

‘Burden of proof’

The chancellor suggested that the civil standard of proof applies in faculty cases, and that it is for the petitioners to ‘prove’ their case according to this standard (pp.1566-7).  He cited Peek v Trower (1881) 7 Probate Division 21, at p.27, in support of this view.

However, the relevant passage of Peek v Trower says that

‘the burden is cast upon you [the petitioner] to shew that you will make things better than they are [already]’. 

The reference is to a ‘burden’, but not to a burden of proof.  In faculty cases the burden is one of persuasion rather than proof.  It is indeed for the petitioner to make the case for granting the faculty.  However, that case is likely to depend on the future, which is not capable of proof.

As Peek v Trower makes clear, a faculty is supposed to ‘make things better than they are’.  This is a reference to the future.  Yet only the past can be proved.  In a faculty case, there is unlikely to be much dispute over whether a past event actually happened or not.  If there is a dispute, the burden of proof should rest on the person alleging the event, regardless of whether they are the petitioner or an objector.

Faculties and Planning Permission

The chancellor suggested that there is a ‘comity’ between the consistory court and the local planning authority (LPA) (p.1575).  This suggestion does not sit comfortably with the consistory court’s supposed status as an impartial judicial tribunal.  The LPA is an executive authority, not a judicial one.  It would be a surprising suggestion that a ‘comity’ exists between an LPA and the High court or the local county court.

The chancellor admitted that he and his colleagues ‘do not find the relationship between the two jurisdictions [faculty and planning] an easy one’ (p.1575).  He observed that ecclesiastical courts are not ‘bound’ by planning decisions.  However, drawing on earlier unreported faculty decisions, he concluded that ecclesiastical courts should accept the factual conclusions of LPAs, unless there is some fairly obvious error.

It is argued that confusion between the ecclesiastical faculty jurisdiction and the secular planning jurisdiction will be avoided if the different purposes of the two jurisdictions are made clear.  The purpose of the faculty jurisdiction is the administration of the Christian religion (the divinely revealed Word and Sacraments) in the parish, whereas the LPA is concerned with secular environmental matters.

If this radical difference of purpose is borne in mind, it should become clear that there is very little connection between the two jurisdictions.  The chancellor correctly observed that it is ‘[doubtful] how relevant [planning] matters are … which do not directly impinge upon the church or churchyard’.

The consistory court is not required either to ‘accept’ or ‘reject’ planning decisions.  A planning decision is simply a fact.  It is not for the consistory court to say that the decision is right or wrong.  That is for the secular authorities to decide (by way of appeal or judicial review). 

Thus, if the LPA grants planning permission for a particular development that is also relevant to a faculty application, the consistory court should not ‘go behind’ the LPA’s factual conclusions at the behest of disappointed objectors. 

Any faculty must, of course, be within the law, including planning law.  A faculty cannot permit something that is, or would be, illegal.  Subject to this, however, it is argued that the consistory court has no direct responsibility for the ‘environment’ (except where statute law expressly imposes such a responsibility).  Care of the environment is the responsibility of the secular authorities. 

The consistory court does not own the church and churchyard.  The incumbent or lay rector is the freeholder.  The care of the property is the legal responsibility of the PCC (PCC (Powers) Measure 1956, s.4(1)(iii)).  The consistory court’s ‘care’ is religious, not environmental.  It is to protect and advance the unique use or purposes for which the church and churchyard exist.

Faculties and Finance

Major building work will, of course, be very expensive, and churches tend to be chronically short of money, relying as they do on voluntary donations by individuals.  How deeply should the consistory court inquire into the ability of a parish to pay for a particular work?

The chancellor suggested that the need (or rather, the ‘necessity’) for the work should be considered separately from its cost (p.1586).  This suggests that a structured approach is appropriate in faculty cases: need / necessity first, then cost.

As with the care of parish land and buildings, the PCC has the legal responsibility for parish finances and fundraising, not the consistory court (1956 Measure, ss.7 and 8).  The chancellor held that the financing of a development is for the PCC to decide.  The court should refuse a faculty on cost grounds only if the proposed expenditure was ‘improper or wholly unrealistic’.

This suggests that the question of cost will not receive the same degree of judicial scrutiny as the question of need / necessity.  A faculty that is considered ‘necessary’ will be declined on grounds of cost only if the proposals for financing it are perversely unreasonable.

The Care of Churches and Ecclesiastical Jurisdiction Measure 1991 clearly envisages that a faculty for building development is likely to be subject to the continuing supervision of the archdeacon or of some other person appointed by the court (s.12(1)).  However, the 1991 Measure refers to the ‘work’, which word suggests the actual building process rather than the finance.