Legal Opinions from the Church of England
On 24 October 2016, legal opinions on three quite disparate areas were made available in the CofE’s Document Library. These Opinions were produced by the General Synod Legal Advisory Commission and relate to the operation of Parochial Church Councils, Public rights of way over land forming part of a churchyard and Using churches for secular purposes.
Parochial Church Councils
This Opinion addresses certain specific points concerning the membership of Parochial Church Councils (‘PCCs’), financial matters including loans and the giving of security, and the powers and duties of PCC committees.
Public rights of way over land forming part of a churchyard
The Legal Advisory Commission was asked whether it is possible for a public right of way to be created across a churchyard. The Commission is of the opinion that land forming part of a churchyard can, after 20 years use by the public as of right, be deemed to have been dedicated as a highway under section 31 of the Highways Act 1980, but that this will not always be the case.
The first part of this Opinion – paragraphs  to  – sets out how, as a matter of law, a highway may come into existence. It is necessarily of a technical nature and is intended primarily for legal practitioners and others who are familiar with legal concepts.
The second part – paragraphs  to  – is concerned with the practical steps that may be available to an incumbent and PCC should they wish to prevent a public right of way arising.
Using churches for secular purposes
This Opinion sets out the relevant secular planning law on change of use and considers the implications for the ecclesiastical exemption from listed building consent under s 60 Listed Buildings Act 1990 of effecting such change as the ecclesiastical law allows. The implications for rating are also considered. Other regulatory requirements are not covered in this Opinion but will need to be considered in relevant circumstances. For example, part of St Mary’s, Ashford is now a permanent performance review/arts centre, Revelation St Mary’s, with a bar selling alcoholic drinks. Therefore, a licence is required for that part of the premises.
However, nothing in this Opinion should be taken as detracting from the need for authorisation by faculty in the case of changes of use within premises covered by the faculty jurisdiction.
We have considered these issues in earlier posts, but this new material constitutes the official opinions of the Church. Following the re-launch of the Church of England web site in 2017, the Legal Services section of the website now includes Legal Opinions from the General Synod’s Legal Advisory Commission, as well as other formal guidance relating to legislation.
[Updated, 31 July 2019]