From 1 July 2022, the scope of List B1(5) was narrowed, by requiring that the replacement of a boiler with a new fossil fuel boiler required the authority of a faculty. This decision concerned the question whether an archdeacon's notice permitting such a replacement under the former List B1(6) remained valid.
In 2017, the petitioners decided to seek replacement of the old boiler system in their Grade II-listed urban parish church with a more energy-efficient gas boiler. They were authorised to do so by the archdeacon, under the then-current List B1(6). No time limitation was imposed. The work was not undertaken, although it appeared that some repairs to the existing boiler must have been carried out.
In September 2022 the boiler failed. The petitioners began to prepare a faculty petition for its replacement, but the DAC concluded that they had not demonstrated due regard for the CBC's net zero guidance. During this process, it appears that the earlier archdeacon's notice came to light; and the petitioners having taken the view that a faculty was not therefore required for the now-urgent works, the boiler was replaced. The court found that parish had proceeded with the work despite being advised that they should be submitting a full faculty application, based upon their own perception of the continuing validity and efficacy of the earlier archdeacon's notice. The Archdeacon requested a determination under Rule 3.8 of the Faculty Jurisdiction Rules on whether the 2017 notice did provide valid and effective authorisation for these works.
Section 16(1)(c) of the Interpretation Act 1978 provides that where an enactment is repealed, the repeal does not, unless the contrary appears, affect any right, privilege, obligation or liability acquired or incurred under that enactment. The court considered that the permission granted under the 2017 notice was a ‘right accrued’ and so, in principle, was not affected by the amendments to the Faculty Jurisdiction Rules taking force from 2022.
However, the court expressed concern that the notice relied upon was issued as far back as October 2017, and considered the argument that a parish could be taken as having abandoned a List B archdeacon's notice if it subsequently implemented alternative works (in this case, repairs) inconsistent with the permission given in it. In the light of this, the court considered that it was not able to determine finally whether the replacement gas boiler was lawfully installed.
The court indicated that it would be content if the Archdeacon took the view that the matter was not worthwhile pursuing further, in the absence of any suggestion that the parish had acted other than sensibly, reasonably and in good faith.
