Legal issues raised in CBC Guidance
ChurchCare has published a CBC Guidance Note on Ruined Churches, (“the Note”). Whilst much of the 14-page document is concerned with explaining the options available to dioceses and parishes for the management of these buildings, it also includes a brief summary of the law relevant to this little-explored area.
Some perceptions of ruined churches are first addressed by reference to Rose Macaulay’s Pleasure of Ruins (1953) and Byron (Manfred, Act III, Scene IV). Surprisingly absent, however, is “the revered and still pertinent Manifesto (1877) of William Morris” referred to in Re St Mary Magdalene Richmond  ECC Swk 7 and summarized by Chancellor Philip Petchey as “the conservator conserves and does not restore or improve”.
The Note comments that some ruined churches, particularly in towns, may be the result of disastrous events, particularly bombing in World War II, and are often preserved as memorials, and a warning for the future; others are the result of other phenomena such as the Black Death, the Reformation, the English Civil War or the forces of nature. In addition, some churches have been deliberately ruined, such as a number of small rural churches in the Diocese of Ely in the 1950s.
Building on earlier surveys by the Council for British Archaeology, the CBC has found that there are between 150 and 250 ruins within the faculty jurisdiction, with concentrations in distinct areas, notably East Anglia which has ~30% of the total. There are two basic types of structure falling within the term “ruin”: those described as “flat sites” which tend to have no visible structural remains above ground; and others in which some of the original structure survives. “In general, the more standing fabric, the greater the conservation challenge”. The CBC Excel file indicates that of the 279 sites identified as being within the faculty jurisdiction, 87 are classified as “flat”, 157 as “high” and 33 are “low”. Of the more exotic locations are the impressive Grade II* ruins of All Saints’ Church, Stanway, which are located in the grounds of Colchester Zoo. The church has been derelict since about 1700 but underwent a major renovation by the Zoo in 2007-2009 at a cost of £180,000.
Ruined churches and churchyards that are subject to an extant consecration continue to fall within the ambit of the faculty regime. Most structures and some memorials are listed, and a number of ruined churches have also been designated as “Scheduled Monuments”. In addition, there may be designations relating to the ecological value of the site, which itself may trigger a different tranche of legislation.
The dilemma faced by those with responsibilities for ruined churches &c is summarized in the document:
“Where title has been established, the consecration of these sites and their ‘ownership’ by the parish in which they are located is in many cases an historical and legal anomaly; many buildings were simply abandoned in antiquity and remain technically consecrated and subject to the [faculty jurisdiction], and some parishes therefore find themselves responsible for what are in effect ancient monuments and archaeological sites”.
These are addressed under two headings:
- Part I: Understanding ruined churches and the issues affecting them;
- Part II: Models for management of ruined churches
Understanding ruined churches and the issues affecting them
The document lists the following legislation as relevant to ruined churches:
- Mission and Pastoral Measure 2011
- Care of Churches and Ecclesiastical Jurisdiction Measure 1991, (CCEJM).
- Ancient Monuments and Archeological Areas Act 1979
- Occupiers’ Liability Act 1984
Other legislative regimes highlighted include those relating to: ecology; heath and safety; and occupier’s liability. Reference is also made to chancel repair liability, although the more up-to-date position is given in our 2 January 2014 post Chancel Repair Liability – Revision Notes . We suspect, however, that the relevance of CRL to a ruined church is mainly academic.
Models for management of ruined churches
The Guidance states that the best way to ensure that a ruined church is properly maintained is to make use of it; it suggests three general models of which most ruins will fall into one (or more): Model 1, closure and alternative use; Model 2, establishing a management agreement; and Model 3, retain and use.
Model 1: Closure and alternative use
Superficially, this is “the easiest way forward for a ruined church which has been found to be owned by a Church of England body will be for parishes to ask for the ruin to be formally closed as a place of worship, that is to remove the legal effects of consecration through a scheme under the Mission and Pastoral Measure (2011)”.
This brings it within the secular jurisdiction, but leaves it in the first place in the ownership of the Diocese through the Diocesan Board of Finance (DBF). “While removing responsibility from the PCC of the parish church within whose parish the ruins lies, a declaration of closure may lead to an uncertain future for the ruin, since there are only four options under the [Pastoral Measure]:
A. Alternative use
B. Vesting in the Churches Conservation Trust (CCT)
D. Vesting in the Diocesan Board of Finance (DBF) as a controlled ruin.”
The provisions within the Mission and Pastoral Measure Scheme only relate to the closure of the building; the churchyard remains vested in the incumbent, although in the case of a churchyard closed by an Order in Council, the maintenance may have been assumed by the local authority. However, a subsequent disposal authorised by Church Buildings Disposal Scheme under the Mission and Pastoral Measure may include all or part of the churchyard. Full guidance on this process is provided by the Closed Churches Division of the Church Commissioners, here. The above four options (A to D) are considered in more detail in the Note, with examples.
Model 2: Management Agreements and Grants
The Note suggests that “a solution which may become increasingly attractive is the use of Heritage Management Agreements in partnership with local authorities and English Heritage. This allows community use of these ruins for research, educational, and leisure activities, with the local authority collaborating with the parish in their care”. In addition to the designation of Scheduled Monuments for the protection of nationally important archaeological sites in England, the Ancient Monuments and Archeological Areas Act 1979 includes provisions relating to grant aid for their preservation, maintenance and management, (S24), it also empowers English Heritage or a local planning authority to enter into a management agreement with the occupier (and also the owner) of any monument, or nearby land, (S17).
Listed Building Heritage Partnership Agreements (LBHPAs) were introduced by section S60 Enterprise and Regulatory Reform Act 2013. They allow the owner of a listed building or buildings and their local planning authority (LPA) to agree which necessary works to the building are routine and regular and, if done correctly, will not harm its special interest. The agreement grants listed building consent (LBC) for these works, for an extended period of time, and they can go ahead whenever convenient. Further details are available in the document Setting up a Listed Building Heritage Partnership Agreement: Historic England Advice Note 5 .
Other options highlighted by the Note include Biodiversity management and the associated grants, and Environmental Stewardship schemes. It also notes that other grants may be available from the Landfill Tax Credit, Heritage Lottery Fund, local authorities, charitable trusts, local and national heritage groups and amenity societies.
Model 3: Retention and use
“This model will generally be used for ruins within the curtilage of churchyards with churches and/or churchyards which are still in use for worship and/or burial; or for ruins which are still used occasionally for services, or to which there is a strong local bond. Again, grants for conservation and to aid community and educational use of ruined churches may be available from the Heritage Lottery Fund, local authorities, heritage groups and amenity societies.
In some circumstances local communities or interest groups can help by setting up voluntary ‘Friends’ societies or other voluntary groups to help look after the ruins”.
Unsurprisingly, cases involving the demolition or alternative uses of church buildings seldom feature in our monthly reviews of consistory court judgments. In Demolition of “Victorian jewel in the Fens” Church refused we considered the case of Re St. Paul Eastville  Lincoln Const Ct Mark Bishop Ch. This provided an example of how such matters are dealt with under the CCEJM 1991: the court was required to balance the safety of anyone potentially affected by serious structural damage, including those employed to undertake remedial action, and demonstrated an unwillingness to engage in precipitate action.
Although not concerning ruined churches directly, Re St. Peter in the East, Oxford is of relevance: the replacement of existing structures in the churchyard of a redundant church which had been appropriated by a pastoral scheme for the use of an Oxford college, St Edmund Hall. The court considered the meaning of “building” in the context of Section 3 of the Disused Burial Grounds Act 1884 in which the Deputy Chancellor observed:
“It is unfortunate that the 1884 Act presents an obstacle to various aspects of [the petitioners’ proposals]. It is not at all clear that the Act serves a useful purpose. It certainly has not done so in the present case. Its effect has already been modified to a significant extent by the Disused Burial Grounds (Amendment) Act 1981 which permits the erection of buildings on disused burial grounds where certain conditions are met. Unfortunately the 1981 Act does not apply to any consecrated ground so it is of no assistance to the petitioners”.
Unlike the more prescriptive guidance on seating, (which helpfully indicates that it was revised in January 2017), the Guidance Note on ruined churches restricts itself to identifying the options for such buildings, rather than giving the CBC’s view on how it believes that should be addressed. Nevertheless, both documents are “quasi-” or “soft-law” issued by a body which itself has statutory status to produce such documents as it deems are necessary, but which are themselves persuasive in nature rather than mandatory. The document carries the CBC’s standard footer on “statutory guidance”.
An earlier post noted that document control was not a strong point in some of the Church’s legal opinions; the same applies to this Guidance Note. The link to Ruined Churches was provided via a recent Tweet, but beyond that we have no indication of its provenance.