‘Shared Use’

by Philip Jones

Recent law reports and commentaries on ecclesiastical law suggest that ecclesiastical courts now like to emphasise the allegedly ‘communal’ function of parish churches, rather than their strictly religious function.

This was discussed by Charles George (the present Dean of the Arches) in an article aptly entitled ‘Is Nothing Sacred?’ (Ecclesiastical Law Journal, July 2002).  The article referred to ‘the erosion of the divide between ‘secular’ and ‘ecclesiastical’ purposes’ in dealings with churches (p.306).  The author described the result of this erosion as ‘shared use’.

The article noted that the secular use of church buildings has broadened from the provision of such convenient facilities as lavatories and kitchens to ‘day centres for the elderly and the deaf, nursery schools and probation offices’ (p.309).  It observed that ‘The[se] facilities … can surely only be permitted if the test is no longer what is strictly ‘an ecclesiastical purpose’ but rather what is compatible with both Christian mission and the primary ecclesiastical purposes of the Church’.

The case of St. Margaret’s, Hawes (2003) 1 Weekly Law Reports 2568 is one instance of this trend towards secular communal use.  The case concerned the installation of a telephone mast on the church tower, in return for lucrative rental income.  A petition objecting to the telephone mast on health grounds was signed by 283 people.

Having satisfied himself that the health fears were unfounded, the chancellor granted the faculty for the telephone mast, apparently unmoved by the strength of local opposition to it.  ‘I find the emotive language of the ‘petition’ [the one signed by 283 people] … unhelpful to the cause it espouses, but it does reveal an unreasoned attitude … and a lack of understanding that there are no scientific concerns … ‘ (p;p.2583-4).

However, the chancellor went on to observe that ‘the Church of England … encourag[es] all manner of community use of church buildings in order that the Church may take its place at the centre of the community’ (p.2586).  He did not seem to appreciate the irony of this reference to the ‘communal’ function of the church, while at the same time permitting a use of it to which a large number of the community strenuously objected.

Nevertheless, it is argued that the chancellor’s conclusion on the petition was correct.  Strong parochial opposition is a reason to refuse a faculty, provided it is based on legitimate, reasonable concerns.  Opposition that originates in superstition, bigotry or some wholly unfounded cause is not a reason to refuse a faculty. 

The ecclesiastical courts’ new emphasis on the communal role of parish churches is open to the reproach that it is motivated by financial gain.  The chancellor in Hawes noted that

‘Churches are enormously expensive to maintain … if a church can receive financial support by taking rent for a commercial undertaking that is consistent with its role as a local centre of worship and mission … no objection’ (p.2586).

Yet churches require financial support from commercial transactions because there are fewer worshippers to provide financial support.  This fact indicates a failure of the church to operate as a centre of worship and mission, hence the new openness to ‘communal’ or rather, secular, use.

The case of St. Mary-le-Bow (2001) 1 Weekly Law Reports 1507 concerned a restaurant business in the crypt of Bow Church.  A vegetarian restaurant had operated in the crypt under a faculty granted in 1989.  It had apparently been a ‘great success’ (p.1509).  The restaurateur now wished to extend the business by opening in the evenings, and by selling alcohol.  He also wished to use the Court of the Arches, which is located in part of the crypt, as an ‘overflow’ restaurant.

Chancellor Cameron (later Dean of the Arches, and George’s predecessor in that office) was not offended by this proposed use of the Court premises, and granted the faculty.  She noted that, if the faculty was not granted, ‘this could lead to the closure of [the restaurant] and would inevitably have a detrimental effect on that part of [the incumbent’s] ministry, which has been so effective in respect of introductions to him through the restaurant’ (p.1513).  (These had apparently resulted in no fewer than two confirmations.)

The Chancellor also observed generally that ‘where there is additional space, particularly in … crypts, it is understandable and reasonable … to use that space on commercial terms … [this] provide[s] a facility of benefit to the local community … and the [parish] benefits from a licence fee’ (p.1511).

However, George’s article points out the secular difficulties that may result from this ‘shared use’ of churches.  If churches are given over to secular use they may lose their exemption from rates (p.314).  Also, the ecclesiastical exemption from listed building consent applies only to buildings whose primary use is as a place of worship (p.316). 

Thus, by a rich irony, the secular use of the faculty jurisdiction (to permit restaurants etc) risks the loss of the very exemption from secular control that the modern faculty jurisdiction was intended to secure.

There is another irony in St. Mary-le-Bow.  The transformation of the Court of the Arches, the principal ecclesiastical court, into an overflow restaurant, is an eloquent comment on a jurisdiction that is overly concerned with the conservation of property while neglecting the purpose for which the property was originally given.

Secular or ‘shared’ use of churches was recently facilitated by the Pastoral (Amendment) Measure 2006.  The provisions of this Measure are now incorporated in s.68 of the Mission and Pastoral Measure 2011.  S.68 empowers the ecclesiastical court to grant a faculty permitting the grant of a lease of part of a church.

Mindful of George’s warning about the danger to the ecclesiastical exemption, s.68 stipulates that any lease must be consistent with the primary use of the church premises ‘taken as a whole’ as a place of worship (s.68(3)).

Although described as a ‘lease’, a dealing with church premises under s.68(3) is really a licence in all but name.  The ecclesiastical court may vary the lease at any time (s.68(7)).  The ‘tenant’ has no right to extend the lease or acquire the freehold.

What, then, is the purpose of the 2006 Measure and s.68, when the ecclesiastical court already has power to grant or permit a licence for ‘shared use’?  A commentator helpfully explains that ‘the intended user group [i.e the secular user] needs to have a full lease rather than merely a licence, to secure financial support’ (F Cranmer, Ecclesiastical Law Journal, January 2007).