The Care of Churches
by Philip Jones
Three functions may be identified in the care of a parish church
(1) the provision of materials for worship
(2) the work of repair or maintenance and
(3) the custody of the building and its contents.
These three functions are now distributed between four parochial officials
(1) the incumbent (albeit to a very limited extent)
(2) the churchwardens
(3) the parochial church council (‘the PCC’) and
(4) the lay rector (in respect of the chancels of certain parish churches)
Responsibility for the supervision or oversight of the parochial officials’ care of their church is now shared between
(1) the archdeacon
(2) the bishop
(3) the diocesan synod and
(4) the diocesan advisory committee for the care of churches.
Provision and Maintenance
The Parochial Church Councils (Powers) Measure 1956, s.4(1) provides that the PCC has
(i) ‘The like powers, duties and liabilities as … the [parish] vestry … had with respect to the affairs of the church, except as regards the election of churchwardens and sidesmen and as regards the administration of ecclesiastical charities …
(ii) The like powers, duties and liabilities as … the churchwardens … had with respect to
(a) the financial affairs of the church …
(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof …
(iii) The like powers, duties and liabilities … possessed by the church trustees (if any) … appointed under the Compulsory Church Rate Abolition Act 1868.’
The responsibilities of the vestry and churchwardens towards their church existed at common law. Thus the 1956 Measure did not devise any new responsibilities, it merely transferred common law responsibilities to the PCC.
The wording of s.4(1)(ii) suggests that the churchwardens’ duty, and hence the PCC’s, extends to care, maintenance, preservation and insurance. This sounds quite onerous. However, it is questionable whether the common law duty extends as far as the statutory wording suggests. Common law is unwritten. It therefore lacks the detailed, exhaustive provision of modern statute law.
The case law indicates that the churchwardens’ duty of care did not extend much beyond the repair of the church, making good any damage as and when it occurred. It does not hold that the duty extends as far as preservation and insurance. It was noted in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299). According to one writer, insurance is an allowable expense at common law, but not a necessary one (C.Y Sturge, Points of Church Law, pp.32-3).
As s.4(1)(iii) indicates, the care of the parish church was originally financed by compulsory church rates paid by the parishioners, who constituted the vestry, regardless of religious allegiance. The church rate was then supposed to be voted by the parishioners in vestry, and then confirmed by the Church court.
These common law duties, and the controversy they once inspired, were discussed in Burder v Veley (1840) 113 English Reports 801. Mr Veley was a churchwarden. He and his co-churchwarden summoned the vestry to grant a church rate.
The vestry indignantly refused. It resolved that ‘so long as the parochial churches are exclusively devoted to the use of the established sect [i.e the Church of England], all expenses of repair shall be defrayed out of the ample revenues of that richly endowed sect or … by the voluntary contributions of those who exclusively enjoy the use of the buildings’ (p.802).
The churchwardens then made, or purported to make, a church rate by themselves. Having done so, they took legal action against Mr Burder in the Church court to require him to pay their rate. Mr Burder applied to the secular court for a prohibition of the legal action.
The prohibition was granted. The secular court held that the churchwardens had no power to make the rate and therefore no right to enforce it in the Church court. This was ‘a proceeding altogether invalid and a church rate in nothing but the name’ (p.813).
The power to make a church rate belonged at common law to the vestry, not to the churchwardens. It was agreed that, if no parishioners bothered to attend the vestry meeting, the churchwardens alone constituted the vestry and so could make the rate. But in this case, of course, a full vestry meeting had been held, and it had declined to make a rate.
The secular court affirmed that the parishioners had a common law duty to repair the parish church, and that the purpose of the church rate was to discharge that duty. If the vestry refused to levy a church rate, its members were neglecting their legal duty. The secular court acknowledged that the enforcement of that duty was within the jurisdiction of the Church court.
However, this jurisdiction still did not give the Church authorities the right to impose a church rate. The only sanctions available to the Church were of a spiritual, not material, nature. Historically the Church might impose an interdict forbidding divine service in the parish, or might excommunicate the parishioners. However, as the court truly observed ‘The alteration of men’s opinions and feelings … hav[e] deprived the old remedy of its virtue’ (p.806).
Chief Justice Tindal likened the parishioners’ liability to repair their church to their liability to repair local bridges and highways (p.826). This suggests that a parish church is a municipal amenity. However, Burder v Veley obliquely made the point that, by the mid-19th century, the repair of the parish church depended on the voluntary support of the parishioners and others.
The wish of the vestry in Burder v Veley was eventually realised with the abolition of church rates in 1868. Only voluntary church rates have been permitted since then. The common law duty of parishioners to repair their church has not formally been abolished, but the abolition of compulsory church rates has rendered it completely incapable of enforcement. The only sanction against neglect of the duty is the statutory power, now contained in the Mission and Pastoral Measure 2011, to close the church.
The 1956 Measure does not refer specifically to the provision of materials for worship, but this is also part of the common law duty towards the church. The whole purpose of repairing the church is to preserve its use as a place of worship. The materials for worship are mostly specified in Section F of the revised Canons of the Church of England, and include such obvious requirements as a font, communion table, lecturn, pulpit and seats for worshippers.
The incumbent is responsible for washing and cleaning the communion plate (Canon F3(2)).
The revised Canons require the provision of service registers, including a register of confirmations in the parish (F11(3) and F12(1)). The Parochial Registers and Records Measure 1978, s.1, provides that a register of baptisms must be provided for every parish church by the PCC. The Marriage Act 1949, s.7, requires the PCC to provide a register of banns for every church and chapel in the parish in which marriages may be solemnised.
The 1978 Measure imposes stringent standards for the care of parish registers, so long as they remain in parochial custody (see schedule 2).
While the 1956 Measure merely transferred existing common law duties, a more recent Measure, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, imposes additional duties on the churchwardens.
S.4(1) of the 1991 Measure requires the churchwardens to maintain records of all lands and articles appertaining to the church, and of all dealings therewith. Three documentary records are specified in s.4(1)
(1) the inventory (for goods and chattels)
(2) the terrier (for land) and
(3) the logbook (for dealings with the property, both real and personal). The logbook must identify the location of all documents relating to dealings with the church and its property.
S.5(1) of the 1991 Measure requires the churchwardens to arrange an inspection of the church’s fabric and contents at least once a year, and deliver an annual ‘fabric report’. However, the responsibility for acting on information provided by the churchwardens remains with the PCC as a whole.
The Sharing of Church Buildings Act 1969 requires that sharing agreements must provide for the upkeep of buildings shared between the Church of England and other Churches. Each participating Church ought to contribute towards upkeep of a shared building and also be consulted about this.
However, the administrative responsibility for the management of a shared building remains exclusively with the Church that owns the building (s.3(4)). Ownership and management of a shared building therefore go together and may not be separated. However, an agreement may make special provision for the use of movable furniture required for the worship of a participating Church that does not own the shared building.
Parish churches may be involved in sharing agreements under the 1969 Act, but they must remain in the exclusive ownership of the Church of England (s.5). Thus if a parish church is subject to a sharing agreement this will not affect parochial responsibilities towards it. However, the parish should be able to call on the other participating Churches for financial support.
The custody of the parish church and its contents, and the liability of the lay rector to repair the chancel of the parish church, are discussed elsewhere in this blog (see the categories ‘Chancel Repair’ and ‘Church Property and Patronage’).
The archdeacon retains some of his common law supervisory responsibility for the care of parish churches. Canon C18(5) provides that he should survey, in person or by deputy, all churches and churchyards in his archdeaconry. Canon C23(3) requires the rural dean to report any serious defect to the archdeacon.
However, the archdeacon and the rural dean are unlikely to possess the technical knowledge required for an adequate assessment of the fabric of the church. Thus their responsibilities are now shared with the diocesan advisory committee (‘the DAC’).
The constitution and functions of the DAC are provided by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. A DAC must include the archdeacons, two elected members of the diocesan synod, representatives of the local planning authority and ‘national amenity societies’, and persons possessing expert knowledge on various subjects pertaining to the care of churches (schedule 1). The DAC must have at least 12 members, in addition to the chairman and the archdeacons.
The DAC is required inter alia to give advice and to maintain records relating to the care of churches and churchyards, and to publicise methods of conservation, repair and redevelopment (schedule 2).
The Inspection of Churches Measure 1955, as amended by the 1991 Measure, provides that every diocesan synod must approve a scheme whereby all churches in the diocese are inspected by an architect or qualified surveyor once every 5 years. The synod must maintain a fund to pay for the costs of inspections. The architect or surveyor must be approved by the DAC, and must make a report of the inspection (s.1). The quinquennial inspection must extend to any important movable article in the church (s.1A).
The enforcement of the quinquennial inspection is the archdeacon’s responsibility. If a church in the archdeaconry has not been inspected for at least 5 years, or has not been inspected to the archdeacon’s satisfaction, he may serve notice on the PCC requiring it to organise an inspection, or permit the church to be inspected in accordance with the diocesan scheme. If an inspection has still not been arranged 3 months, the archdeacon may, with the bishop’s consent, arrange the inspection himself (s.2).
If the diocesan synod itself neglects to establish an inspection scheme, the bishop is required to do so instead (s.1B).
Under the Parochial Registers and Records Measure 1978, the archdeacon must also arrange a quinquennial inspection, with report, of the parish register books and records, at the PCC’s expense, after consultation with the diocesan record office (s.9). The bishop must also give directions on the care of books and records (s.11(6)).