In May 2016 I posted a note on the current state of ecclesiastical exemption in the four jurisdictions. The situation has moved on and the earlier post has been taken down. What follows is an attempt to state the latest position as I understand it. I should like to thank Gethin Rhys, National Assembly Policy Officer of Cytûn, for updating the material on Wales.
England & Wales
In England & Wales, ecclesiastical exemption is rooted in ss.60(1) and (2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, as amended, which provide that buildings that are for the time being used for ecclesiastical purposes are not subject to ss.3A, 4, 7 to 9, 47, 54 and 59 of that Act. The exemptions are from various elements of listed building control:
- building preservation notices;
- restrictions on works of demolition, alteration or extension;
- compulsory acquisition of buildings in need of repair;
- urgent preservation works by a local authority, the Secretary of State (in England) and Welsh ministers (in Wales); and
- offences in relation to intentional damage.
S.75 of the 1990 Act provides that such ecclesiastical buildings in England are not subject to s.74 ((Control of demolition in conservation areas) of the 1990 Act: the conservation area consent ecclesiastical exemption.
In England, the ecclesiastical exemption in the 1990 Act is restricted to the “listed denominations” under the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010. Currently, the listed denominations in England are the Church of England, the Roman Catholic Church, the Methodist Church, the Baptist Union of Great Britain (with respect to buildings of which the Baptist Union Corporation Ltd is a trustee) and the United Reformed Church. In addition, the Church of Scotland, which has two listed churches in London – St Columba’s, Pont Street, and Crown Court Church in Covent Garden – is exempt in respect of its buildings in England. The basis of the exemption is a requirement by Government that the exempt denominations should operate robust controls of their own that are as rigorous as secular listed building control. In reality, the internal controls on alterations to church property operated by, for example, the Church of England and the Methodist Church, are much tougher than secular listed building controls because they apply to all churches of the two denominations, irrespective of whether or not they are listed – though the criteria used in relation to listed buildings are more rigorous than for unlisted ones.
In 2004, consultations took place on the future of the exemption from listed building controls. The Department of Culture, Media and Sport published its conclusions on the operation of the exemption in England in July 2005: The Ecclesiastical Exemption: the Way Forward. It decided that the system of exemption should continue but would “be monitored periodically”.
Since January 2019, there are six “listed denominations” in Wales: the Church in Wales, the Church of England (which has a handful of parishes on the Welsh side of the border), the Baptist Union of Great Britain and the Baptist Union of Wales (with respect to the minority of their buildings of which either the Baptist Union Corporation Ltd or the Welsh Baptist Union Corporation Ltd is a trustee), the Roman Catholic Church, and the Methodist Church.
The then Welsh Assembly Government commissioned an independent report into the operation of the system of ecclesiastical exemption, which was published in March 2005. Exempted denominations in Wales were asked to submit their written observations on the report, but no further action resulted. In the course of the passage of the Historic Environment (Wales) Act 2016, however, a group of amendments on ecclesiastical exemption was debated in the National Assembly and narrowly lost. The Deputy Minister for Culture, Sport and Tourism of the day, Ken Skates, opposed them and drew attention to the fact that the Welsh Historic Places of Worship Forum had held its first meeting in the week before the amendments were debated and had just issued a Strategic Action Plan for Historic Places of Worship in Wales.
Cadw pointed out at the time that changes were needed to the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994, which by then applied only in Wales (having been replaced in England in 2010), and in 2018 issued a consultation on:
- the draft Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (Wales) Order 2018;
- draft best-practice guidance, Managing Change to Historic Places of Worship in Wales: the Ecclesiastical Exemption; and
- draft best-practice guidance, Managing Scheduled Monuments in Wales.
The main changes proposed to the ecclesiastical exemption were:
- removal of the exemption for conservation area consent;
- removal of the United Reformed Church from the exempt denominations (which was being done at the request of the URC itself); and
- clarification regarding the buildings covered by the exemption to eliminate occasions when both secular and denominational consents are needed.
The guidance as finally published, Managing Change to Historic Places of Worship in Wales, was prepared to support denominations in their use of the exemption and it was felt that it might also be useful for local planning authorities and congregations and for denominations and faith groups interested in seeking the ecclesiastical exemption in the future. The final version of Managing Scheduled Monuments in Wales was produced as a further element in the series published in conjunction with the Historic Environment (Wales) Act 2016. Aimed primarily at owners, occupiers and managers of scheduled monuments, it explains what it means to own a scheduled monument and how to care for it and sets out the general principles to consider when managing and making changes to scheduled monuments. It also explains how to apply for scheduled monument consent, including the respective roles and responsibilities of owners and Cadw, and provides details about where to get further help and assistance.
The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (Wales) Order 2018 came into force on 1 January 2019: it revoked and replaced the 1994 Order in relation to Wales. The new Order removes the listed buildings ecclesiastical exemption in the case of all ecclesiastical buildings other than those falling within Article 4, which retains the exemption for church buildings of the six “listed denominations” in Wales, provided that the primary use of the building in question is as a place of worship and subject to the restrictions set out in that article. The Order also removes the conservation area consent ecclesiastical exemption from all ecclesiastical buildings.
For the purposes of the 2018 Order, a church building includes any object or structure fixed to the church building and any object or structure within the curtilage of a church building which, although not fixed to that building, forms part of the land. This is now the case whether or not that object or structure is listed in its own right.
Article 1(3) provides that the loss of ecclesiastical exemption does not affect any works which have commenced, or in respect of which a contract has been made, before the Order comes into force. Similarly, Article 6 provides that if an application for listed building consent in relation to any object or structure within the curtilage of a church building which, though not fixed to that building, forms part of the land (as defined in article 4(1)(b)) has already been made before the Order comes into force, it will not apply to that application and the local planning authority will continue to determine it.
Cadw’s website contains a section on Historic Places of Worship. The Welsh Historic Places of Worship Forum provides a valuable meeting place for churches, conservation charities, funding bodies and the Welsh Government to meet and discuss all relevant matters pertaining to historic places of worship including, but not limited to, the exempt denominations.
There is no list of exempt denominations in Northern Ireland; instead, the ecclesiastical exemption as it currently stands applies to all listed places of worship. Most of them are Christian churches or chapels; but there are also meeting houses and a synagogue, together with an increasing number of what were previously secular buildings that are now being used by faith groups. If a building is open for public worship six times a year then it is considered as a place of worship and is therefore exempt from listed building controls.
On 18 March 2016, Environment Minister Mark Durkan launched a consultation on a proposal to remove the ecclesiastical exemption, noting that ecclesiastical exemption was common across the UK but pointing out that the parallel systems of control for named denominations used elsewhere had never been introduced in Northern Ireland.
The consultation proposed that the Department of the Environment for Northern Ireland (DOENI) should issue an order under s.85(9) Planning Act (Northern Ireland) 2011 to remove the current exemption under s.85(8) of that Act. The result would be to introduce a requirement to apply to district council planning departments for listed building consent for proposed changes that might alter the architectural or historic interest of a place of worship that is in use for ecclesiastical purposes. The planning authority would have to pay due regard to the building’s architectural and historic character when assessing such proposals: in parallel, DOENI was to develop and publish guidance on alterations to listed buildings in ecclesiastical use and consideration of liturgical requirements by planning authorities. There were 122 responses to the consultation: perhaps unsurprisingly, there was strong opposition from the Churches to the removal of the exemption, while the district councils and groups concerned with protecting the historic environment supported the proposed extension of listed building controls.
In the meantime, built heritage issues became the responsibility of the Department for Communities (DfC) and planning policy the responsibility of the Department for Infrastructure; and the Minister for Communities, Mark Givan, subsequently announced that the exemption was to be retained. He proposed “close engagement” between his civil servants, district council officials and the Churches to “support effective decision making as regards changes to places of worship”:
- “For larger organisations, the DfC will put in place partnering arrangements, governed by a Memorandum of Understanding or similar, which will enable structured engagement with governing bodies at a Northern Ireland level. This engagement will review developing best practice and agree appropriate changes to relevant guidance and processes.
- For smaller organisations and individual self-governing places of worship, the Department will provide appropriate guidance on changes to places of worship which enhances the advice already available.”
Givan said that he believed that this approach was a proportionate means of allowing worshipping communities to adapt their buildings in response to their mission while taking account of architectural considerations and the wider community interest. The DfC would monitor the effectiveness of the arrangements.
In Scotland, churches are exempt from listed building controls under s 54 (Exceptions for ecclesiastical buildings) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. However: the Scottish Historic Environment Policy: July 2009 states at paragraph 9 that
“the exemption for ecclesiastical buildings does not cover the demolition of a listed ecclesiastical building, since by definition ecclesiastical use must cease before demolition is carried out, neither does it apply to any works to a former ecclesiastical building which has passed into secular use or which is disused. Exemption does not apply to a building used or available for use by a minister of religion as a residence. Similarly, listed churchyards taken over by local authorities as graveyards are not exempt from the requirement to obtain listed building consent for works to those graveyards.”
Historic Environment Scotland’s 2019 booklet, Scotland’s Listed Buildings, says this at page 19:
“Places of worship are handled differently from other types of listed buildings. You do not need listed building consent for alterations to the inside of places of worship that are still in use. There is a voluntary-consent arrangement currently in place for work to the outside of places of worship that are still in use. Ask the planning authority whether you need listed building consent. You will need consent to totally demolish the building.”
Under the voluntary-consent scheme, which is reviewed every three years, alterations to the exterior of a place of worship fall under secular control and require listed building consent. The denominations participating in this scheme are the Associated Presbyterian Churches, the Baptist Union of Scotland, the Church of Scotland, the Free Church of Scotland, the Free Presbyterian Church, the Methodist Church, the Roman Catholic Church, the Scottish Episcopal Church, the United Free Church and the United Reformed Church.
Proposals affecting the exterior that would usually require consent are dealt with under the planning system. An application is submitted to the local authority and, if successful, results in the granting of listed building consent. If, however, the church is unable to negotiate a solution which is acceptable, the planning authority will refer the application to the appropriate “decision-making body” within the denomination concerned, along with any written submissions from Historic Scotland, the planning authority and other interested parties, as appropriate.
The denominations, like the local authority, are required to adhere to the terms of the Memorandum of Guidance on Listed Buildings and Conservation Areas (Historic Scotland 1997); however, the final decision in the case of a contested application rests with the authorities of the denomination in question. [See Jonathan Taylor: Legal Protection – Places of Worship (2007)]
Cite this article as: Frank Cranmer and Gethin Rhys, “Ecclesiastical exemption in the UK: a note” in Law & Religion UK, 8 July 2019, https://www.lawandreligionuk.com/2019/07/08/ecclesiastical-exemption-in-the-uk-a-note/.