Post Office pod permitted in Whitstable church
According to ChurchCare, there are “at least 35 cases of post office services being delivered from parish churches, Methodist chapels, United Reformed churches, church halls and centres. They are all ensuring that communities are able to access local post office facilities where none would otherwise exist”. Following a recent judgment in the Commissary Court of Canterbury, a Licence is to be drafted in relation to the temporary installation of such a facility within the church of St Peter, Whitstable. It is intended that in due course, a Faculty will be granted for the necessary works, and for the authorization of the Licence under Faculty.
Interest in possible additional uses for church buildings is not new and was reviewed by Charles Mynors in a paper delivered at the Ecclesiastical Law Society conference in Cardiff in January 2009, Ecclesiastical Buildings: Constraints and Opportunities . The ChurchCare initiative Open and Sustainable Churches is directed towards encouraging a wider, more imaginative and more strategic use of the Church of England’s 16,000 buildings; its web page includes links to advice on a wide range of options including: visitors and tourists; farmers’ markets; foodbanks and night shelters; community banks; and Post Offices.
The Cathedral and Church Buildings Division of the Church of England, the Methodist Church and the United Reformed Church work closely with Post Office Ltd to seek to identify opportunities for church buildings to host such services in order to maintain their presence, particularly in isolated rural communities: see Guidelines and Best Practice for the Provision of a Hosted Post Office® Service in Churches and Chapels. More generally, in relation to S 68 Mission and Pastoral Measure 2011 ChurchCare has produced Open and Sustainable Churches: Legal options for complementary use of church buildings; more detailed legal advice on section 68 has been prepared by the Legal Office of the Church’s National Institutions Wider Use of Part or Parts of a Church Building.
Report of the Church Buildings Review Group
In conjunction with the Church of England’s Reform and Renewal programme, the Church Buildings Review Group has published a report on the stewardship of its church buildings. This reviews a number of innovative uses of church buildings, and indicates that other major organisations serving the public in England have an estimated 8,857 Post Office branches in comparison to the total for combined church use of 35 .
In Annex 3 of the report Deputy Legal Adviser Alexander McGregor provides guidance by on Legal Agreement for the Use of Open Church Buildings of which the following extracts are pertinent:
“17. A licence or a lease is, however, likely to be useful where a post office or some other community facility which is not run by the church is to operate from the church building. A lease will be particularly suitable where the operator of the facility needs to lay out money on making alterations to the building or in acquiring plant and fittings. A lease will give the operator, and bodies who consider making grants to the operator, a substantial degree security because the operator, as a lessee, will have the rights of a landowner in respect of the relevant part of the church throughout the term of the lease.”
However, of particular relevance to temporary use as in Re St Peter Whitstable:
“14. [It is not] possible to grant a lease which requires the lessee to vacate the leased part of the church at certain times of the week, e.g. Sunday mornings, so that it is available to the incumbent for worship during those times. Such an arrangement would not amount to a grant to the lessee of exclusive possession of the relevant part of the church. The arrangement could not, therefore, be a lease as a matter of law.”
Other issues of general relevance to Licences include:
“4. … A licence is simply a permission which makes it lawful for the licensee to do what would otherwise be an act of trespass. A formal licence takes the form of a contract between the owner – i.e. the incumbent – and the licensee, and any other interested party such as the PCC. Such a licence can be used to confer permission on the licensee to use a church building in a particular way in return for payment or for undertaking other obligations. But a licence does not confer any property interest on the licensee. The incumbent continues in possession of the entire church and can use it in any way he or she would normally be able to do so, provided that use does not interfere with what the licensee has been permitted to do under the contract.”
“8. There are no special statutory provisions which govern the exercise of the faculty jurisdiction to authorise the grant of a licence. But the court cannot grant a faculty for a licence to use a church in a way which would be inconsistent with its status as a consecrated building as such use would be unlawful. Provided that the proposed use is consistent with the church’s consecrated status, the court has a discretion whether to grant a faculty. The court will wish to be satisfied that if the licence is granted the building will continue to be a church and that the proposed use will not prevent its use as a church when it is required for that purpose – which will not merely be on Sundays but also, for example, for the occasional offices.”
“15. Neither a licence nor a lease can relieve the PCC of its statutory maintenance obligations in respect of a church. While a licensee or a lessee can assume certain obligations in respect of carrying out repairs and other maintenance, it remains the statutory duty of the PCC to ensure that any necessary work is done. If a licensee or lessee had undertaken such obligations but had not in fact carried them out – whether because it lacked the means to do so or for any other reason – it would be the responsibility of the PCC to have the work carried out.”
St Peter, Whitstable
Whitstable may be famous for its Oyster Festival and as the home of late Peter Cushing, but it has no permanent Crown Post Office following the demolition of its former building; it currently operates from a “portacabin” on a Council car park. This is “universally recognised to be unsuitable, lacking basic services and users have to queue outside in all weathers”. Following an assessment of options, Post Office® approached St Peter’s Church with a view to the installation of a temporary “pod” inside the church; this would be assembled inside the building and rest on the floor, supported solely by its own weight. As a consequence, the Team Vicar, the Reverend Simon Christopher Tillotson, Church Council Secretary and a Churchwarden sought authorisation for:
“Introduction for an initial period of six months of a portacabin from which a temporary Post Office will be run under a legal agreement with the Parochial Church Council, in accordance with a Statement of Need, details of the portacabin, a Specification by the Inspecting Architect covering any fixing arrangements and the provision of services and a draft legal agreement”.
The Petition was considered by Morag Ellis QC, Canterbury Diocese Commissary General, in Re St. Peter Whitstable  ECC Can 1.
Development of Petition: The Post Office® long term plan of for Whitstable is to provide a permanent facility elsewhere in the town, and approached St Peter’s church with a view to the installation of a temporary office in the form of a “pod” inside the church. Guided by the Diocesan Communities and Partnerships officer, on 17 May 2015 an EGM of the District Church Council resolved :
“in principle, that a temporary Post Office, comprising a secure pod situated between the back of two arches on the north side of the church could be fitted. They also accepted that a waiting area could be situated opposite the pod on the south side of the church. This arrangement is proposed to be temporary for a period of six months initially. There is the option of being extended to a maximum of a further six months. The arrangement is subject to obtaining a Faculty … and subject to agreement by the community.”
Full planning permission was granted by Canterbury City Council on 5 February 2016 subject: Condition 2 required that the work was undertaken in accordance with the drawing supplied; Condition 3 emphasized the temporary nature of the work, stating [emphasis added]:
“The hereby approved Post Office facility (defined as Use Class A2 in terms of the Town and Country Planning Use Class Order 2015) shall cease within 365 days of the date of this permission at which time all associated structures shall be removed from the site and the church building shall be reinstated to its original form.”
The Diocesan Advisory Committee issued its Notification of Advice on 14 October 2015, recommending approval subject to standard conditions concerning electrical wiring. Details of the arrangement were subject to much discussion, mainly directed towards matters of insurance [8 to 12]; the public notice of the Petition in June/July generated two expressions of support from nearby residents and from the local Member of Parliament; two local residents objected [13 to 17].
Legal Agreement: Although the Petition refers to a “legal agreement”, legislation actually provides two options for the temporary arrangement; a lease as provided by S 68 Mission and Pastoral Measure 2011 or a licence under faculty, which was available prior to the 2011 Measure . The Commissary General favoured the latter option, “a tried and tested route in this Diocese for collaborations with providers of services such as broadband ”, since:
“20. A Licence seems … to be the appropriate mechanism for the following reasons:
(i) the only part of the church in respect of which exclusive possession could be given is the small area to be occupied by the “pod”, yet access to it by staff and customers, as well as shared use of WCs, would be required;
(ii) the arrangement is to be short term, which makes a Licence inherently more suitable and avoids the need to consider the implications of Part 2 of the Landlord and Tenant Act 1954 (Business Tenancies); and
(iii) a suitably drafted Licence should be capable of ensuring appropriate flexibility to allow necessary ecclesiastical use.”
The Licence is to be based upon the standard form of Licence issued by the Methodist Property Office, allowing for necessary adaptations for Church of England use, i.e. the church must be able to require (on reasonable notice, say seven days) the Post Office not to open for the requisite period to allow any funeral and/or associated memorial service to be held; although unlikely to be required in practice, provision should be made for other occasional offices of weddings and baptisms.
Practical Implications for the Worship and Mission of the Church: S.1 Care of Churches and Ecclesiastical Jurisdiction Measure 1991 introduces the requirement “to have due regard to the role of a church as a local centre of worship and mission”. It was therefore necessary to consider the effects upon the use of the building for Christian worship and the implications of the proposal for the church community’s engagement with the wider population.
Worship: With regard to worship, the proposed location of the pod is to be mostly within the aisle area formed by two of eight arched pillars these near the north door, extending a little way inside the two pillars into the nave. Seating in the nave consists of movable wooden chairs and since the pod would not require any physical attachment, disruption to the church’s layout would be minimal and wholly reversible .
With average congregation numbers currently in the twenties, there would be ample room for them at services, with most of the sightlines to the High Altar and pulpit wholly unaffected. The font is centrally located near the west wall, well away from the proposed pod. The Post Office would not be open on Sundays and special arrangements were envisaged to ensure that the regular Tuesday Eucharist, held in a chapel on the south east side of the church, cold continue. This was furthest away from the proposed Post Office location and would remain accessible and unaffected by Post Office activity for private devotions during hours of operation. Discussion with Ecclesiastical Insurance indicated limiting the use of votive candles to service times, and the Commissary General suggested that a battery-powered light might be used over the aumbry in the chapel to mark the presence of the Reserved Sacrament . The Team Vicar indicated that occasional offices are very infrequent – typically one funeral a year and one wedding every two or three years.
Although the test in S 68 Mission and Pastoral Measure 2011 is applicable to the grant of leases rather than licences, “it does express the policy of the Church and the legislature in relation to the introduction of secular uses into consecrated spaces … [and] is a helpful guide to the application of S1 of the 1991 Measure in Licence cases”. Using the test solely for guidance, the Commissary General concluded that it would, as a matter of fact, be met in the instant case since the church as a whole would undoubtedly remain primarily a place of worship.
Mission: In terms of mission, the Petitioners rationale was twofold: serving the community through the provision of adequate Post Office services; and a desire to highlight the presence of the church to Whitstable residents and, by encouraging visitors to come into the building, signal the presence of a Christian community . In principle, therefore, the Commissary General found that the Petitioners’ proposal has the potential to make a strong contribution to the mission of their church. Furthermore there was broad community agreement from both the Christian and the secular community and the elected representatives .
Off-site impacts: In considering consider off-site impacts and the specific points of objection in this regard, the starting point was the fact that planning permission has been granted for a change of use, limited to twelve months from February 2016; in the absence of cogent or convincing evidence to suggest that this decision was wrong, it was assumed that this permission was appropriately granted: see Re St Laurence, Alvechurch (2003) 22 CCC 25, 7 Eccl LR 367.
The objections related principally to traffic and parking, but neither submission introduced any material to demonstrate that the Planning Officer’s assessment was wrong [36, 37]. The security of the church building and artefacts has been fully considered, and here too there is no evidence before the Court to support the assertion that domestic properties would be put at risk or that their insurance premiums would increase.
Balance of Considerations: The Court concluded that properly regulated by Licence, the implications of the proposal for the worship of the church would be very slight. Against this there would be considerable benefits in terms of the church’s mission through service to and engagement with the wider community; this would both effect improvements in an important public service and give the church good opportunities for recognition and outreach. The Local Planning Authority determined the traffic impacts to be acceptable and although objections had been raised as to the temporary nature of the initiative, the provision of a permanent, high quality Post Office for Whitstable was not within the gift of the Court.
Licence and other Practicalities: The Commissary General directed that a Licence be prepared and submitted to the Court for approval before the Faculty is issued. This was to include a clause ensuring priority for occasional offices; the DAC’s suggested electrical wiring conditions; and the standard condition requiring insurance to be in place and conditions of any relevant policy or contract to be met. The Faculty would be limited to a period of six months; if within four months of the date of the grant of the Faculty, it is desired to extend the period (though not beyond 5 February 2017 when Planning Permission will expire) an application to amend the Faculty may be made.
The proposed unit at St Peter’s Whitstable differs from the more permanent measures in St James, West Hampstead where Fr Andrew Foreshew-Cain is the designated Postmaster, or St Mary’s, Cloughton in the Diocese of York where a sub-postmaster from a Scarborough Post Office provides post office services twice a week. However, they all fall within the “Hosted Service” model where there is a “hosted” Post Office® within a community building. Whereas St James and St Mary’s are both Grade II, St Peter’s is unlisted.
The interchange of building use between the ecclesiastical and secular sector is not all in one direction. In January it was reported that a the Grade II St Paul’s church in Newport had been forced to close and its congregation would be moving to the old Post Office. Faced with a £500,000 repair bill, the congregation is planning to lease the former Post Office at an expected cost of £20,000 per year. The future of the former church is being considered by the Church in Wales and one possibility is its conversion into flats run by a housing association.
Also in January, there was a robbery from the Post Office at St James Church, West Hampstead, when two bags of cash containing an estimated £6,000 were seized from a security driver.
 Charles Mynors QC Ecclesiastical Buildings: Constraints and Opportunities (2009) 11 Ecc LJ 266–283.
 See: Current diocesan initiative, paragraphs 42-45 and the second section of Appendix 2; Supporting innovative uses of church buildings, paragraphs 122-124,
 Footnote 1, page 5.
 223rd Report by the Ecclesiastical Committee on the Pastoral (Amendment) Measure, (HL Paper 132; HC 930), in particular paragraphs 2 and 3.