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The Faculty Jurisdiction Rules 2013: Simpler Process, Equal Protection
Published online by Cambridge University Press: 13 December 2013
Extract
The faculty jurisdiction of the Church of England pre-dates planning law by several centuries. It is the means by which the diocesan bishop, through his chancellor and in his consistory court, ensures that the sacred buildings of the diocese and their contents are compliant with the canon law, doctrine and ecclesiology of the Church of England. During the latter part of the last century, the effective operation of the faculty jurisdiction contributed to the continuing exclusion of churches of the Church of England from the need for listed building control. The rationale is that the faculty jurisdiction provides a level of protection for the church's built heritage equivalent to local authority protection, but uniquely tailored for the sacred purpose of the buildings and the evolving needs of individual worshipping communities. A balance constantly needs to be struck which respects the rigour required of both ecclesiastical and secular authorities (with their competing but complementary demands), but is not so cumbersome that it deters and frustrates parishes and other interested persons and bodies from engaging with it.
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- Copyright © Ecclesiastical Law Society 2014
References
1 For a detailed exposition of the operation of the faculty jurisdiction, prior to the introduction of the new Rules, see Hill, M, Ecclesiastical Law (third edition, Oxford, 2007)Google Scholar, ch 7.
2 SI 2013/1916. Unless the context states otherwise, all references hereafter to specific Rules are to those of the Faculty Jurisdiction Rules 2013. They were produced by the Rule Committee established by section 25 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. Certain of the revisions arise from a number of recommendations that were made in the report of the Faculty Simplification Group dated 3 September 2013 and subsequently endorsed by the Archbishops' Council. They are the first wave of an ongoing process of revision and simplification which will include amendments to primary legislation.
3 The Chairman of the Rule Committee circulated a detailed briefing note to diocesan secretaries and DAC secretaries in September 2013 in readiness for the implementation of the changes.
4 I am grateful to Charles George QC, Dean of the Arches, Charles Mynors, Chancellor of Worcester, and Alexander McGregor, now Chancellor of Oxford, for commenting on this article in draft. However, the opinions expressed are my own.
5 The Rules are available to download at <http://www.legislation.gov.uk/uksi/2013/1916/contents/made>. The Explanatory Memorandum may be found at <http://www.churchofengland.org/media/1783212/gs%201887x%20-%20explanatory%20memorandum.pdf>, both accessed 12 October 2013.
6 There are transitional provisions for petitions lodged prior to that date which are yet to be determined. The former rules will continue to apply unless the chancellor directs otherwise: Rule 20.3.
7 Part 14.
8 Part 18.
9 Rule 3.6 refers to ‘intending applicants’, whereas both Rule 4.1 and Forms 3A and 3B identify the person seeking a faculty by the term ‘petitioner’. Rule 4.1(3) expressly states ‘A person who submits a petition is referred to as a petitioner’. Neither the Rules nor the accompanying Memorandum explain semantically or ontologically how an intending applicant evolves into a petitioner. The term ‘applicant’ is not defined in the interpretation section but is used in Part 15 for those seeking an injunction or restoration order, who will be comparatively few in number.
10 Rule 3.2(1)(a); Form 1A (parish) or 1B (other place of worship).
11 Such as when the petition is lodged: see Rule 4.6.
12 Re St Alkmund, Duffield [2013] Fam 158; [2013] 2 WLR 854.
13 See Rules 3.3(1)(b) and (2).
14 The precise circumstances when consultation is required are a little convoluted and differ depending on the particular consultee body and the listing status of the church building. Certain of the criteria contain an element of subjectivity where the test ‘… to such an extent as would be likely to affect …’ involves a value judgment. This is discussed a little more fully below, where the DAC has a discretion to recommend consultation.
15 Schedule 1, para 7. Although it is not a requirement under the Schedule, intending petitioners would be wise also to include a reasoned response to any objections or observations made by a consultee body.
16 Rule 3.6(6), (7) and (8).
17 Rule 8.3.
18 Rule 3.6(1). Apparently, in the past, some parishes had mistakenly proceeded on the basis that the DAC certificate constituted authority to proceed. This change of nomenclature should prevent any similar misunderstandings in the future.
19 Rule 3.6(5). A DAC is still under an obligation to give its principal reasons when its advice is not to recommend works or proposals: Rule 3.6(4).
20 Rule 3.6(7).
21 Rule 3.6(8).
22 Rule 3.6(9).
23 Rule 6.2(2). The routine seeking of written confirmation in every case is a needless administrative burden, wasteful of the time and resources of DAC secretaries and registry clerks. However the Rule Committee was constrained by section 15(1) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which imposes on chancellors a statutory duty to seek the advice of the DAC, as opposed to relying on the certificate issued to intending petitioners. It is expected that this bureaucratic anomaly will be removed when the Measure is itself amended in a future series of reforms.
24 See Rules 9.2–9.5.
25 Rule 9.3. This must be in a form approved by the chancellor. Reference might be made to the ‘Guidance on the award of costs in faculty proceedings in the consistory court’, drafted by the Ecclesiastical Judges Association and reissued in January 2011. A copy may be found at <http://www.peterboroughdiocesanregistry.co.uk/ejacostsbooklet.pdf>, accessed 30 September 2013.
26 All the forms are set out in Schedule 3 to the Rules. The Petition for parochial faculties is Form 3A, while that for non-parochial buildings (within the list under the Care of Places of Worship Measure 1999) is Form 3B.
27 Rule 4.3(3).
28 Rule 5.7.
29 Rule 5.8.
30 Rule 8.2.
31 Rule 8.9, Schedule 1. This replaces the requirement under the previous regime for certain proposals to be the subject of advertisement in a local newspaper.
32 Rules 8.3, 8.6 and 8.7
33 Rule 6.1.
34 Rule 6.2. For comment on the newly styled ‘notification of advice’, see above.
35 Rule 7.15: once a scheme of temporary re-ordering has ceased to be authorised, the archdeacon is now under a duty to take steps to ensure that the position is restored to that which existed before the scheme was implemented: Rule 7.15(3).
36 Rule 1.1.
37 Rule 1.3.
38 Rule 1.4. For example, provision for holding hearings and receiving evidence by telephone is now made in Rule 17.1(2)(e).
39 Rule 1.4(2)(a). The use of mediation may have a place here: see the work of BIMA (Belief in Mediation and Arbitration), which serves to promote alternative dispute resolution in matters having a religious dimension. See <http://www.bimagroup.org/>, accessed 2 October 2013.
40 The court's case management powers are helpful grouped together in Part 17.
41 Rule 10.1(2).
42 Rule 10.4. This reflects the judgment of the Court of Arches in Duffield (see note 12 above).
43 Rule 11.2(a), save for very limited exceptions.
44 Rule 10.5.
45 Rule 11.2(2). This reflects the practice under the Civil Procedure Rules, which had become commonplace in consistory courts in recent years.
46 Rule 12.4. Similar provisions continue, as before, in respect of the evidence of the Church Buildings Council.
47 For example, ‘Upon whom is the burden of proof?’ is a question of law to which every petition gives rise, albeit one with an easy answer. This cannot have been within the intent of the drafters of the Rule.
48 A short and legible note which can be annexed to the file is probably sufficient, so that the chancellor or his or her successor can be reminded of the basis for the issue of the faculty. The chancellor's note (but arguably not the entirety of the file) should be available to inspection on request.
49 Rule 14.2(3).
50 It would be sensible, as in civil cases, for penal notices to be attached to undertakings as well as substantive orders, and for these to be signed by the individuals concerned to indicate that they are aware of the potential consequences of any breach.
51 Contempt of an ecclesiastical court is dealt with by the ecclesiastical judge providing the High Court with a certificate specifying the act or omission that is said to constitute the contempt. If, on inquiry, the contempt alleged is found proved, the matter is punishable by the High Court: see Hill, Ecclesiastical Law, para 7.76.
52 The Ecclesiastical Judges Association has issued guidance on the subject, as noted above (note 25).
53 Rule 18.4.
54 Rule 18.1(2).
55 Rules 18.2 and 18.3.
56 One proposed reform is the creation of a generic List of Minor Works (prescribing the categories of work which may be undertaken without the need for a faculty), which will be of universal application throughout the Church of England, eliminating the differences which currently exist between one diocese and another.