The Regulation of Cathedral Property: Economic and Environmental

by Philip Jones

Cathedral property is regulated by 2 regimes, which may be described as

(1) economic, concerning the use of the property, and

(2) environmental, concerning the care and conservation thereof.

The 2 regimes are provided by 2 Church of England Measures

(1) the Cathedrals Measure 2021, the latest in a series of Measures dating back to 1931 and

(2) the Care of Cathedrals Measure 2011, which is a consolidation of 2 earlier Measures passed in 1990 and 1994.

The 2021 Measure is concerned with both regulatory regimes (1) and (2). The 2011 Measure, as its title implies, is concerned only with (2).

(2) takes precedence over (1). A cathedral is not for profit, of course. The principal objects of cathedral administration are

(1) ‘to advance the Christian religion in accordance with the faith and practice of the Church of England’ and

(2) ‘to care for and conserve the fabric and structure of the cathedral church building’ (s.4(1)).

Thus the economic regulation of cathedral property is only a means to an end. The environmental regulation is an end in itself. All property must be applied to its constitutional objects or ‘other charitable purposes which are ancillary [there]to’.

Economic regulation extends to all species of cathedral property, real and personal, corporeal and incorporeal. Environmental regulation is concerned only with physical property, i.e land, buildings and chattels.

The Regulatory Structure

Within the cathedral administration, the primary responsibility for both the use and the care of cathedral property belongs to the chapter (cf 2021 Measure, s.11(1)(f)).

As well as the chapter, every cathedral has a

(1) finance committee and

(2) CFO.

A cathedral may have a discrete ‘audit and risk’ committee, as well as a finance committee (s.16).

For environmental matters there is a

(1) fabric advisory committee (‘FAC’) and

(2) architect, or ‘surveyor of the fabric’ (2011 Measure, s.4(1) and s.5(1)(e)).

A cathedral may also have an archaeologist, if one is required (s.23).

Cathedral property is subject to the oversight of 2 national Church authorities

(1) the Church Commissioners (‘the Commissioners’), for economic matters and

(2) the Cathedrals Fabric Commission (‘CFC’), for environmental matters.

As well as ecclesiastical jurisdiction, the chapter is subject to the jurisdiction of the High Court with respect to charities (s.8(5)), and to secular charity law. Like other places of worship, cathedrals enjoy the ecclesiastical exemption from listed building control. Apart from this exemption, however, cathedrals will be subject to secular environmental law.

Classifying Cathedral Property

Neither the 2021 Measure nor the 2011 Measure makes any reference to the consecration of land or buildings. Thus the regulation of cathedral property is unaffected by whether it is consecrated or not.

The 2021 Measure defines a cathedral church building as ‘the buildings [plural] within the ecclesiastical exemption for that cathedral’ (s.4(2), also s.45(1)).

The 2011 Measure requires the chapter to prepare a plan of ‘land surrounding the cathedral church of which the fee simple [i.e freehold] is vested in the [chapter] (s.25). The CFC then defines the cathedral precinct by appropriate marking of the plan. The precinct, as defined by the CFC, consists of so much of the freehold land as is necessary to preserve or protect the character and setting of the cathedral and any associated buildings and archaeological or human remains.

Thus the chapter prepares the plan of the surrounding land, on the basis of its freehold of that land. The CFC defines the precinct on the basis of the plan.

If there are changes to the freehold, the chapter must alter the plan. The CFC in turn must redefine the precinct. It may also redefine the precinct of its own motion, even if there have been no changes to the freehold.

The chapter must also keep an inventory of all important objects belonging to the cathedral. This includes objects ‘to whose possession or custody the chapter is entitled’, even if not physically present on cathedral premises (2011 Measure, s.4(1)). ‘Important’ is defined as ‘of architectural, archaeological, artistic or historic interest’. The FAC determines what objects are of sufficient importance to be included in the inventory, after consulting the CFC (2011 Measure, s.24(4)).

All objects in the inventory are important. However, the FAC must also identify those inventory objects that is considers to be of outstanding interest. Thus there are 2 classes of inventory object

(1) important objects and

(2) outstanding objects.

If an important but hitherto unknown object is discovered (buried treasure) the CFC must be notified and the object recorded in the inventory (2011 Measure, s.7).

Thus, for environmental purposes, cathedral property is classified as

(1) cathedral and precinct (land and buildings)

(2) inventory objects (whether outstanding or merely important) or

(3) all other physical property, whether real or personal.

The chapter may of course own land and buildings outwith the cathedral precinct, and may own intangible investment property. For economic purposes, cathedral property is classified as

(1) inalienable – the cathedral itself and outstanding inventory objects (i.e physical property)

(2) permanent – i.e part of the permanent endowment of the cathedral (real and personal property) or

(3) other property, both real and personal.

Inalienable property cannot be sold or mortgaged, or even valued (s.20).

The Commissioners have jurisdiction to decide (under seal) whether property already held by, or on behalf of, the chapter (not any other property, so not affecting third party rights) is part of the permanent endowment (s.23). They can only decide on the application of the chapter, not of any third party, nor (apparently) of their own motion.

Management

The chapter prepares an annual budget and accounts (s.11(1)). It must ensure ‘appropriate oversight of … internal and external audit’ (s.5(1)(j)). Accounts must be copied to the bishop and the Commissioners. The Commissioners may order the chapter to provide additional ‘financial information’ (s.30). The cathedral’s financial year end is determined by order of the Commissioners (s.30(1)).

The bishop’s power to intervene in economic matters is limited and discretionary. He may commission a review of particular aspects of cathedral governance, including its ‘financial affairs’ (s.9(6)). The chapter must co-operate with any review (8). However, they are required only to ‘have due regard to the conclusions … and any recommendations made in the review’ (9). The chapter is not bound by a review.

The FAC, as its title implies, is supposed to advise the chapter on care and conservation matters (2011 Measure, s.4(2)(a)). The CFC gives similar advice.

There must be a 5-yearly report on works required to be done (i.e in the future) to the cathedral and any ancillary buildings. The report is based on inspections, carried out ‘as the cathedral architect or surveyor considers necessary’ (s.26). A newly appointed architect / surveyor must make ‘a full and detailed inspection’ and report within 2 years of appointment. There must also be an annual report detailing work already done and work in progress, and any other matters relevant to the cathedral’s care and conservation.

Apart from the cathedral itself there must be a 5-yearly inspection, with report, of all other property which the chapter is liable to repair and maintain. (s.27(1)).

The chapter must report annually to the FAC about the state of the inventory (s.24(3)).

Dealings – Economic

If a cathedral is also a parish church (a few are), its statutes may provide that either the whole cathedral building, or only part thereof, is to be the parish church. The ‘parish church’ may also be moved from one part of the cathedral building to another. (s.7(1)). The Commissioners may make a scheme to provide that a cathedral, or part thereof, shall cease to be a parish church (s.41(1)).

As mentioned, the cathedral itself is inalienable. Endowment property, though permanent, is not inalienable. Dealings with endowment property, will generally require the consent of the Commissioners.

Land may not be acquired or disposed of without the Commissioners’ consent, though the Commissioners may by order except minor transactions from this requirement (s.21). (The requirements of secular charity law must still be observed (s.22(6)). Borrowing against endowment requires the Commissioners’ consent (s.24). Disposal proceeds of endowment property are likewise endowment property (s.25). Endowment property may be sold for less than its full market value (s.22(7)).

Endowed funds may be invested in land or other permitted investments, and may also be used ‘for the improvement or development of property vested in the chapter’ (s.24(1)), i.e to increase its value. However, endowed funds may not be used to pay for repairs to the cathedral itself, except in an emergency. (Repairs to the cathedral will not increase its economic value, because the cathedral is inalienable, and therefore has no economic value.) Emergency repairs require the consent of the Commissioners, and there must be a scheme to replace the money spent.

The chapter may accommodate cathedral officeholders and employees without the Commissioners’ consent (s.22(3)). The chapter is the statutory ‘housing provider’ for all stipendiary cathedral clergy, from the dean down, who are subject to common tenure, and therefore must provide them with accommodation (Terms of Service Measure 2009, s.4). The chapter’s rights and duties as housing provider are prescribed by Terms of Service Regulations 12-16.

If there are still any deans and canons who are not subject to common tenure, any sale of their official residences will require their consent, so will probably have to wait until they retire. If the dean or canon is appointed by the Crown, Her Majesty’s consent will also be required, even in a vacancy (s.22(2)).

Dealings with non-endowment property will not require the consent of the Commissioners.

Dealings – Environmental

The 2011 Measure regulates works done to the cathedral, the precinct and inventory objects. It also regulates other dealings with inventory objects (2011 Measure, s.2).

The FAC and the CFC exercise a jurisdiction over the cathedral comparable to the faculty jurisdiction of the ecclesiastical courts over parish churches and churchyards. Any significant works or dealings will require the approval of either

(1) the FAC or

(2) the CFC

according to their impact. Permanent alterations, demolitions, disturbance of human remains, and the disposal or loan of outstanding objects are all reserved to the CFC. Less significant matters are left to the FAC to decide. Applications for approval are governed by procedural rules.

The chapter may only carry out works without approval if these do not ‘materially affect … the architectural, archaeological, artistic or historic character’ of the property.

Thus, despite its title, the FAC’s function is not merely advisory. It is a decision-making authority independent of the chapter. By contrast, the 2021 Measure does not require the approval of the finance / audit committee(s) to particular economic dealings.

Discovered ‘treasure’ may be disposed of with the CFC’s approval, but the British Museum, or another museum nominated by it, must be given first refusal (2011 Measure, s.7(4)).

An application for approval to the FAC or the CFC must come from the chapter, not a third party. The FAC and CFC each have to decide whether its own approval is required, or the other’s (or perhaps neither’s). They may determine that works of a specific class or description do not require their approval.

The Chapter may appeal an unfavourable decision of the FAC to the CFC. An appeal (or rather, review) from a decision of the CFC lies to a special Commission of Review (s.11).

Although an original application for approval can only be made by the chapter, a disappointed tenant may appeal the FAC’s or CFC’s refusal to approve works to his property (s.14).

The FAC and CFC have power to give retrospective approval for illegal works and dealings falling within their jurisdiction, i.e a confirmatory faculty (2011 Measure, s.2(3)).

Not all precinct property is necessarily within the ecclesiastical exemption. If the chapter wishes to apply for listed building consent for a non-exempt precinct building, it must notify the CFC and invite representations, but the CFC’s approval of such application is not required. The FAC and the CFC have no jurisdiction over works to any cathedral-owned buildings that are outside the precinct.

The FAC’s jurisdiction to permit the sale (or other permanent disposal) of inventory objects, as well as works thereto, may overlap with the Commissioners’ jurisdiction over endowment property. If an inventory object is classified as endowment property, the consent of both FAC and Commissioners will be required to any sale.

There is apparent inconsistency between the 2021 Measure and the 2011 Measure on dealings with outstanding objects. The 2021 Measure is adamant that such objects ‘may not be alienated’ and ‘cannot be transferred from the chapter’, unless the chapter itself ceases to exist (a most unlikely event). Even then they can be transferred only to the diocesan board of finance, nowhere else (s.20). Yet the 2011 Measure suggests that the CFC may approve ‘the sale … or other disposal of … any [outstanding] object’ (s.6(1)(iv).

Enforcement

If the chapter illegally acquires or disposes of land without the Commissioners’ consent, the transaction is prima facie void. Third parties will be protected if the conveyance includes a sealed statement by the chapter that the Commissioners’ consent is not required (s.21(6) and s.22(9). The Commissioners’ written statement of consent to such conveyance will also protect an innocent third party, if the Commissioners later complain that their consent was obtained by misrepresentation or deceit (s.21(5) and s.22(8)). However, there is no specific protection for third parties to any other illegal dealings with endowment property.

Any dispute arising from an impugned transaction would be a matter for the High Court. Likewise if the chapter considered that the Commissioners had unreasonably refused consent to a transaction, they could apply for judicial review of the refusal.

It might be thought that enforcement of the cathedral’s environmental regime could likewise be entrusted to the High Court, if the chapter regrettably engaged in unapproved works, or threatened to do so. However, the 2011 Measure provides bespoke enforcement powers (ss.15 to 20), similar to those exercised by ecclesiastical courts under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

The FAC and the CFC are committees, not courts, so ill-equipped to enforce their own jurisdiction. Enforcement action is therefore taken by the bishop, who may hold a special visitation. If this proves insufficient, the Vicar-General’s court of the relevant province can issue injunctions and restoration orders. (This enforcement regime is discussed in more detail in a blogpost ‘Cathedrals and the Faculty Jurisdiction’, filed below.)