The First Modern Faculty Case

by Philip Jones

Peek v Trower (1881) 7 Probate Division 21, Court of the Arches

The rector and churchwardens wished to make significant internal alterations to the parish church, to make it more convenient for the parishioners.  The vestry approved and the necessary funds were available.  However, a significant number of parishioners (60 or 70) opposed the alterations.

Unlike many late 19th century faculty cases there was no issue of worship or ritual involved.  Nor did the proposed alterations contravene any law or property right.  Nor did they relate to the necessary repair of the church.  Nor were they concerned with the accommodation of larger numbers of worshippers .  They were, as Lord Penzance, the Dean of the Arches, said ‘all matters of taste and fancy’ (p.30), as most modern faculty cases are.

Peek v Trower may even be described as the first modern faculty case.  Lord Penzance admitted that ‘I have looked into the reports of the decisions of my predecessors in search of … principles which should guide me, but without much success’ (p.27).

He was therefore obliged to formulate principles of his own.  He held that, in deciding such a case, he had to decide between two principles, or presumptions:

(1) the presumption in favour of change and

(2) the presumption against change.

According to (1), a dealing with a church should be permitted if it is adequately funded and will not ‘work mischief … impair the capacity, the fitness or the convenience of the church for the purposes of public worship’ (p.27). 

According to (2), ‘the burden is cast upon [the petitioner] to shew that [the dealing] will make things better than they are …’.  There had to be a positive case for change.  Moreover, ‘the Court ought to be satisfied that there is a general desire on the part of the parishioners, or at least of the actual worshippers, being parishioners, that the change should be made’ (p.28). 

Lord Penzance adopted principle (2), the presumption against change.  Applying this principle to the facts of the case he refused a faculty.  There was significant parochial opposition to the proposed alterations.  They ‘[had] been planned and devised by a very small number of those interested in the church’ (p.29).  There was no evidence that the present furnishings of the church were uncomfortable.

Although Lord Penzance attached much significance to parochial opposition, this factor was not decisive: ‘I am far from … lay[ing] down as a rule that the approval of an absolute majority of parishioners must in all cases be obtained … There are many matters to be taken into consideration’ (p.29).  In particular ‘The character and true motives of the opposition have to be ascertained …’.

Lord Penzance revisited the question of parochial opposition to a proposed dealing with the parish church in Nickalls v Briscoe (1892) Probate Division 269.  A couple wished to donate a stained-glass window to their parish church in memory of their deceased daughter and her four children, who were all deceased as well.  The window was approved by the vestry, but, as in Peek v Trower, there was significant opposition within the parish.  A petition against the window was allegedly signed by more than 200 people.

Perhaps moved by the tragic circumstances giving rise to the case, Lord Penzance held that a faculty should be granted for the window, notwithstanding the parochial opposition.  However, he was confronted with his own earlier decision in which he had strongly emphasized the importance of parochial support for a proposed alteration.

He drew a rather dubious distinction.  Peek v Trower had concerned a proposed alteration which ‘could not be supported on its own merits as an improvement’ (p.283).  By contrast, the proposed window in this case was intrinsically, or perhaps aesthetically, better than the proposed alteration in Peek v Trower.

The evidence in Nickalls v Briscoe suggested that the opposition was not to the window itself, but rather to the petitioners personally.  Lord Penzance found that ‘There have … been long-standing differences between parties, resulting in a general feeling of antagonism’ (p.282).  The antagonism was based on churchmanship.  The petitioners were suspected of ritualism.

Lord Penzance held that the alleged ritualism of the petitioners was irrelevant: ‘the opinions of the parish … should be opinions formed in relation to the proposed alteration itself … and not … upon the motives or objects of those who propose it’ (p.283).

Thus parochial opposition to a proposed dealing with a church is relevant only if it is based on relevant and reasonable grounds.  Opposition prompted by malice or clashes of personality or unfounded fears is not a reason to refuse a faculty.  Lord Penzance found that the proposed window had ‘no doctrinal significance’, whatever the ritualist sympathies of the petitioners.

Today Nickalls v Briscoe is usually cited for Lord Penzance’s dicta that the parish church ‘belongs not to any one generation [of parishioners]’ and suggesting that, for this reason, ‘the law has forbidden any structural alterations … save those which are approved by a disinterested authority in the person of the Ordinary’.

However, it is clear from their context that these remarks were made to rebut the suggestion that the decision in the case was inconsistent with Peek v Trower.  In fact, Lord Penzance never suggested in Peek v Trower that parochial opposition was decisive in a faculty case.  Indeed, as we have just noted, he had expressly denied this.

Conservation v Pastoral Care

The oft-quoted dicta in Nickalls v Briscoe, though unobjectionable in themselves, have been used (or misused) to justify the modern ‘conservationist’ approach to the faculty jurisdiction, and to undermine the pastoral approach adopted by Lord Penzance.

The conservationist approach follows Lord Penzance’s ‘presumption against change’ but takes it out of its pastoral context.  The result is secular, materialistic and somewhat authoritarian.  It emphasizes the ‘conservation’ of the church building as an end in itself.  The assertion that the church does not belong to the present generation of parishioners serves to imply that the ‘disinterested’ ecclesiastical judges and the diocesan advisory committees and various ‘national heritage’ bodies know best.

It is true that the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which now mostly regulates the faculty jurisdiction, begins, at s.1, with a warm ‘general principle’ that ‘any person or body carrying out functions of care and conservation relating to churches shall have due regard to the role of a church [building] as a local centre of worship and mission’.

However, in St. Luke’s, Maidstone (1995) Family 1, Sir John Owen, one of Lord Penzance’s successors as Dean of the Arches, rejected the suggestion that worship and mission was the paramount consideration in faculty cases (p.7).  He further held that s.1 of the 1991 Measure did not even apply to the ecclesiastical courts ‘since they are not … carrying out functions of care and conservation’.  Presumably he meant that the ecclesiastical courts merely oversee those who do exercise such functions.  (Dean Owen was also the author of the conservationist ‘necessity’ test for faculty applications).

In St. Michael’s, Tettenhall Regis (1995) 3 Weekly Law Reports 299, a diocesan chancellor went so far as to hold that ‘I should not treat the worship and mission factor [in s.1] as in any way paramount’ (p.308). 

An unpublished dissertation by Desmond Carnelley ‘The Faculty Jurisdiction in the Church of England and the Future of the Ecclesiastical Exemption’ (LL.M, Cardiff University, 2002) offers a powerful critique of the ‘conservationist’ approach to the faculty jurisdiction. 

The excessive emphasis on the care and conservation of listed churches causes the pastoral aspect of the faculty jurisdiction to become neglected.  Carnelley draws an important distinction between the conservation and the preservation of ancient churches. 

Conservation demands ‘the design, appearance and setting of the edifice as it was originally built’.  There is at least a tension, if not a conflict, between conservation and pastoral need: ‘as a living, developing organism, change is of the essence of the church … in order to serve new generations of worshippers’ (p.21).

Preservation, unlike conservation, demands only ‘the upkeep … of all historic buildings, so that they are kept free from … decay’.  This does not conflict with pastoral need, indeed it serves pastoral need.

Carnelley also draws attention to the financial burden that the ‘conservationist’ approach imposes on the Church, involving as it does ‘payment to archaeologists, conservation officers, special consultants and the like … [and] the expense of advertising [faculty proceedings]’ (p.37).

Carnelley argues that ‘two basic questions underlie any debate about the care and maintenance of Anglican Churches

[1] To whom does these buildings belong? and

[2] What is the main purpose and function of a church building – what is it for?’.

These are indeed the essential questions.  The case of Britton v Standish (1705) 90 English Reports 976 tells us that parish churches are for the ‘ease and benefit’ of the parishioners.  Burder v Veley (1840) 113 English Reports 801 draws attention to the parish church’s function as a municipal amenity.  The parish church is the parishioners’ church.  It does in a sense belong to the parishioners. 

However, Griffin v Dighton (1864) 122 English Reports 767 makes clear that the parish church still exists for a particular purpose, the worship of God in accordance with the Church’s religion.

In Beckwith v Harding (1818) 106 English Reports 187 the churchwardens of a certain parish claimed the right to deal with their church without the permission of the Church authorities, pleading a local custom.  Rejecting the claim, Lord Chief Justice Ellenborough pointed out that such a custom would in effect secularise the parish church (p.1290).  If the parishioners were free to deal with their church as they pleased, without reference to the Church authorities, the church would cease to be a church.

The purpose of the faculty jurisdiction is therefore to safeguard and promote the purpose of the church.  Correctly exercised, the jurisdiction will respect the parishioners’ interest, while ensuring that they use their church in accordance with its proper purpose.  Interest and purpose both demand the preservation of the church building.  However, they may also demand expedient alterations.