Background

On 3 May the Church Times reported a dispute between the Diocese of London and Westminster City Council over an application to install nine mobile-phone masts inside the tower at St Augustine’s Church, Kilburn, a Grade I listed building designed by John Loughborough Pearson.

On 2 April 2013 the Chancellor of the Diocese, HHJ Seed QC, granted a faculty for their installation and rejected the Council’s contention that the installation would harm the “special architectural and historical interest of the building”: see Re St Augustine, Kilburn [2013] London Cons Ct. According to an earlier report in the Hampstead and Highgate Express, one of the bones of contention had been that in order for the masts to work properly the existing lead-covered oak louvres would have to be replaced with glass-reinforced plastic ones. A spokesman for the Council subsequently declared that “it is our view that it is likely to require planning permission”; and Councillor Alan Moss told the Church Times that if any works were done to the church, the Council

“…would take enforcement action … There is a fundamental misunderstanding by the Chancellor and the Vicar that they do not need planning permission. What Westminster Council wants to avoid is a showdown between the Diocese of London, Westminster Council and English Heritage, which is what this is heading toward.”

Ecclesiastical exemption in brief

The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010 provides, inter alia, that the Church of England, the Church in Wales, the Roman Catholic Church, the Methodist Church, the Baptist Union of Great Britain, the Baptist Union of Wales, the United Reformed Church and the Church of Scotland (which has a small number of churches in England, some of which are listed) are exempt from listed building controls on the basis that they have in place procedures of their own which the Government is prepared to recognise as equivalent in rigour to secular listed building controls. (And in the case of the C of E and the C in W, the faculty jurisdiction is in any case tougher than secular controls because it extends to unlisted churches as well as to listed ones.) But what the ecclesiastical exemption does not do is to free the exempt denominations from planning controls. Planning consent is quite a different matter: listed building consent is additional to planning consent, not an alternative to it.

In Scotland, under s 54 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 all churches in ecclesiastical use of whatever denomination are currently excepted from listed building control (but not from planning control) – though there is a non-statutory arrangement under the aegis of Historic Scotland for dealing with proposals for works to the external fabric of churches which, were it not for the exemption, would require listed building consent.

St Augustine’s

The argument in the case of St Augustine’s is whether or not what is proposed falls within planning legislation as well as within listed building control. Purely from the point of view of the Church of England, a faculty would presumably be required for the works whether St Augustine’s was a listed building or not – but planning consent is a separate issue. Press reports, however, tell only half the story. Seed Ch pointed out in his judgment that the issue had come before him on previous occasions and

“… there was nothing to distinguish this application from eleven others I have granted over the last two years, two of them in the City of Westminster, where the City Council had raised no objections or queries; one (St Saviour, Pimlico), is immediately next to a nursery school and across the road from a secondary school (Pimlico Academy) and on the other side of the road from one of the largest blocks of residential apartments in London (Dolphin Square, which consists of 1,250 apartments) and the other (St Stephen, Rochester Row) is close to two schools as well as various blocks of flats and almshouses” [para 1].

Furthermore:

“In a more recent identical proposal, which in the event has not yet formally been pursued, at St Gabriel Pimlico (a Grade ll* listed building), Westminster City Council specifically stated in an undated letter written in response to a letter dated 1 July 2010 from the parish: ‘The installation of the louvres is considered to be de minimis and does not require planning permission’.” [para 14].

Finally, English Heritage was content with the proposal [para 2].

The subtext of the dispute appears not to be aesthetics but concerns about possible health risks from non-ionising radiation. But as Seed Ch pointed out,

“In Re Bentley Emmanuel Church [2006] 2 WLR 1068, the Court of Arches heard an appeal against the decision of Chancellor Shand in the Lichfield Consistory Court refusing a petition for the installation of telecommunications equipment in a church. One of the issues on which the Chancellor based his decision was the perception of local residents as to the possible health risks. The Court of Arches noted that the form of licence provided for compliance with the Public Exposure guidelines of the International Commission on Non Ionising Radiation Protection (“ICNIRP”) and regular monitoring … The Court of Arches held that the ecclesiastical courts should not apply stricter requirements than those of the Government and local planning authorities. The licences in this case make the same provision and, given that the decisions of the Court of Arches are binding on me, I could not as a matter of law refuse this petition on those grounds” [para 8].

So what next?

The next move is presumably up to Westminster Council and we will follow unfolding events with interest. One’s first thought is, “Next stop judicial review?” but, on further reflection, precisely what is there to review? The Chancellor clearly acted within his powers in granting the faculty and evidently took the view that a faculty was all that was necessary to authorise the works – a view which Westminster City Council contested on this occasion but not on previous ones. So the issue is not the validity of the faculty but whether or not any of the proposed works also require planning consent and therefore fall outside the ecclesiastical exemption. The answer to that question would appear to be for the Council’s planning officers and elected members to determine in the first instance and, if necessary, to be pursued via the planning appeal system. But why the change of mind?