Ownership & Jurisdiction

The Consistory Court

Other Consents

Special Cases

Procedure

Urgent Matters

Fees

Enforcement

The act of Consecration of a church and/or churchyard sets it aside for sacred uses, for future generations as well as the present one. They are centres of the Church's worship and mission and they are also, in many cases, places of cultural, historical and architectural significance for the life of the local community and in the nation. The system which has developed for their care and oversight ensures that all these factors are properly assessed before authority is given for changes to their state or to their contents by means of repair, addition or alteration. The most recent statutory provisions are contained in the Care of Churches and Faculty Jurisdiction Measure 1991.

Ownership and Jurisdiction
The ownership of the church and churchyard is normally vested in the incumbent as part of the parson's freehold, but the contents of the church are vested in the churchwardens, who hold them as trustees for the church. Under modern
legislation the financial responsibility for the maintenance of a church, its goods and its churchyard rests upon the Parochial Church Council. Churches, their contents and churchyards are under the control of the Diocesan Bishop, exercised through his Chancellor as Judge of the Consistory Court of the Diocese, assisted by the Archdeacon of the Archdeaconry concerned. All changes to a church, its contents or the churchyard must have due authority and this is
normally given by the Consistory Court (either by the Chancellor or the Archdeacon) by means of a faculty. However, certain types of cases may be dealt with in other ways, as described later in this section. The Chancellor's jurisdiction automatically extends to all consecrated churches and their churchyards, and also to new buildings licensed for public worship. The Bishop also has power under the Faculty Jurisdiction Measure 1964 to bring into the jurisdiction of the Consistory Court any existing building licensed for public worship.
The curtilage of a consecrated church, even if itself unconsecrated, is deemed to be within faculty jurisdiction and is included in "churchyard" for the purposes of this paper. The curtilage includes boundary walls, hedges etc. and lych gates.
The Consistory Court
The Consistory Court of each diocese is an integral part of the English legal system whose procedure is regulated by Rules of Court applicable to all Consistory Courts. The Diocesan Registry always has copies of the Rules currently in force. At present, these are the Faculty Jurisdiction Rules 1992. The Chancellor, as Judge of the Court, must satisfy himself that the proposal which is the subject of a faculty petition may legally be carried out, and that it is right to do so, bearing in mind that the church or churchyard will remain after the present generation is gone, and that it should be passed on to posterity soundly maintained and, wherever possible, beautified. The Chancellor makes his judicial decision
based upon proper evidence and the best admissible advice. He must ensure that all those who have a legitimate interest in the proposal have an opportunity of learning that a faculty is sought and of opposing it, if they wish. Notice is therefore given by means of a citation, displayed publicly - generally on the external and internal notice boards of the church - and also sent at the Chancellor's direction to anyone else who seems to have a special interest in the case. This may include bodies such as English Heritage or the Victorian Society for particular matters. Under favourable circumstances, the Chancellor can issue a faculty without a court hearing. However, if he is in doubt as to whether a faculty should be granted, or if it is opposed, he has a duty to hear the full arguments of both sides of the case. In cases which may create a precedent, and in applications for the sale of church valuables (silver, pictures etc.) there will usually be a hearing in open Court.
Other Consents
All acquisitions and works to church buildings, their contents and churchyards require authorisation by the Consistory Court. Under the current provisions of the "ecclesiastical exemption" for places of worship of the main denominations in
England, the authority of the Consistory Court takes the place of Listed Building controls. However, there are a few cases (mainly relating to churchyard monuments) in which separate listed building consent may also be needed. Other bodies whose authority will be needed - in addition to a faculty - for certain types of work include:
* the local planning authority
* English Heritage
* English Nature
* the Commonwealth War Graves Commission
* the Church Commissioners and Privy Council (where churchyard land is to be the subject of a Pastoral Scheme)
Special Cases
There are some cases where a faculty is not required, in particular:-
(a) some very minor matters ("de minimis" matters) which the Chancellor has directed do not need formal authorisation. These are listed as Schedule A in an accompanying sheet [section C4a]
(b) other minor matters, which may not need authorisation by faculty but which will, where appropriate, be authorised by the Archdeacon after consultation with the DAC. The procedure to be followed and the list of matters covered is given as Schedule B in an accompanying sheet [section C4b]
(c) temporary reordering: if certain detailed conditions are satisfied, the Archdeacon can authorise temporary reordering of a church for up to 15 months, to allow time to see whether the arrangements work satisfactorily and are generally acceptable before applying for a faculty.
(d) churchyard monuments: the Chancellor has delegated powers to incumbents to permit the erection of certain monuments and inscriptions. Particulars are given in the Churchyard Regulations [section C5]. If a particular proposal falls outside the delegated authority it will be necessary to apply for a faculty.
Procedure
It is important for those involved with the care of church buildings to check at an early stage what authority will be needed for a particular project and whether any special procedures may need to be followed. Parishes, as well as the Chancellor and Archdeacons, may seek the expert advice of the Diocesan Advisory Committee on any matter concerning church buildings, contents and churchyards, without charge. The Chancellor must seek the views of the DAC in relation to any formal application for a faculty. However, the DAC can offer much practical guidance informally if consulted at a very early stage, and parishes are encouraged to discuss any project with the Archdeacon or with the DAC staff at the Diocesan Office. The procedure for applying for a faculty and the role of the DAC are set out in more detail in Sections
C2 and C3.
Urgent Matters
The Chancellor has power to grant leave to proceed with works prior to a faculty being granted, if there is an urgent reason to do so (for example, because the structure is becoming dangerous). This means it should never be necessary to carry out works without due authority. However, it is important to bear in mind that leave to proceed will only be granted in cases of real urgency, and not simply to enable a parish to make the most of a "special offer for a limited period only", for example.
Fees
Faculty fees are laid down in orders issued periodically by the General Synod and confirmed by Order in Council. In this diocese, faculty fees are normally met by the Diocesan Common Fund and this means that no cost falls on the individual
parish making a faculty application. There are some important exceptions to this general policy:-
* Where a faculty petition has to be made retrospectively to authorise work carried out without proper authority, the faculty fee is payable by the parish making the application.
* Where a faculty petition is made by or on behalf of an individual who will benefit personally if the petition is granted, the applicant is required to pay the faculty fee. Examples include the reservation of a grave space or the erection of an individual monument which requires a faculty.
* Where a hearing is required to resolve a faculty petition, the costs and expenses related to the hearing will be assessed by the Registrar and payable by the party or parties directed by the Chancellor.
Enforcement
(1) Churchwardens are for this purpose the officers of the Bishop and have a duty to see that the law is observed in their parishes. They should report to the Archdeacon or Chancellor anything which is done amiss.
(2) In particular, churchwardens must inspect and then report on the fabric annually (at the Annual Parochial Church Meeting) and disclose to the Archdeacon, at his annual visitation, all work that has been done to the fabric or contents of the church and churchyard, and the authority under which the work was done. It is hoped that most problems can be sorted out by informal discussion between the Archdeacon, the incumbent and churchwardens and the PCC.
(3) Sometimes mistakes do happen. Whenever a mistake is discovered, the incumbent and churchwardens should immediately petition for a faculty authorising retrospectively what has been done. They should make a full disclosure of the circumstances which led to the mistake.
(4) The Archdeacon has the following powers:
* To order the removal of an article to a place of safety if he considers it is in danger.
* To petition for faculty if a parish fails to take action which is necessary for the care of the building.
* To be authorised by the Chancellor to undertake work under faculty (at the petitioners' expense) if the petitioner fails to do so.
* To call an extraordinary meeting of the PCC or an extraordinary Parochial Church Meeting to discuss any failure to fulfil the legal requirements at parish level.
(5) The Chancellor has the following powers:
* To order a party to faculty proceedings whose act or default led to the proceedings to pay the resulting costs and expenses.
* To issue an injunction to restrain an unlawful act.
* To make a restoration order requiring the position to be restored as far as possible to what it was before an unlawful act was committed.
(6) Finally, failure to comply with an order of the Consistory Court without reasonable cause is a contempt of court and can be punished on that basis, if necessary by referring the matter to the High Court.