On 1 April 2020, The Faculty Jurisdiction (Amendment) Rules 2019 come into force; these make a number of important changes to the earlier Rules, including: the substitution of a new Part 4 dealing with consultation and advice; revision and expansion of Lists A and B; extension of the Archdeacon’s jurisdiction for temporary minor re-ordering; and various other amendments to improve the operation of the Rules.
The Faculty Jurisdiction Rules 2015 were introduced with the intention of simplifying faculty procedures and reducing the burden of administration, in particular for churchwardens and others in parishes with responsibility for church buildings. During the summer of 2018, a consultation exercise was undertaken on their operation with a view to ascertaining what further improvements might be made. The 200+ responses were considered by the Rules Committee, which concluded that a number of improvements should be made, including substantially expanding Lists A and B, as well as other changes to increase the efficiency of the faculty process and assist parishes in equipping their church buildings for mission.
The Faculty Jurisdiction (Amendment) Rules 2019 were made on 13 May 2019; approved by the General Synod, 8 July 2019; laid before Parliament, 6 August 2019; and come into force on 1 April 2020. These further amend the Faculty Jurisdiction Rules 2015 (SI 2015/1568) to which earlier changes had been introduced through the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (2018 No. 3).
An overview of the changes to each Part of the Faculty Jurisdiction Rules is given in the Explanatory Note to the Rules, which is reproduced below. Greater detail is provided by the Explanatory Note to General Synod, GS 2137X, which explained:
“The amendments include the substitution of a new Part 4 dealing with consultation and advice. Its purpose is to ensure that by the time a diocesan advisory committee issues its notification of advice, all necessary consultations have already been carried out, thereby avoiding delays following the submission of a petition. Lists A and B (matters which may be undertaken without a faculty) have been substantially revised and expanded. Various other amendments have been made to the Rules to improve their operation.”
Changes to Faculty Jurisdiction Rules
Part 4 of the 2015 Rules – Seeking advice prior to commencement of proceedings is replaced by a new Part 4 – Consultation and advice prior to starting faculty proceedings, the principal aim of which ‘front load’ the consultation process with a view to all consultation taking place prior to the issue of a notification of advice by the diocesan advisory committee (‘DAC’) [Rule 6]. As a consequence, Schedule 2 to the 2015 Rules – Consultation with Historic England, national amenity societies and the local planning authority – has been repealed as a consequence of the simplified form taken by the new rule 4.5 [Rule 21].
The new Part 4 requires the DAC to assist and support parishes through the consultation process, ensuring that all necessary consultations are completed and any issues resolved, so far as possible, before the DAC issues its notification of advice. When a parish consults the DAC on its proposals, the DAC must consider whether it should give the parish initial advice to assist it in relation to its proposals. Whether initial advice is needed will depend on the nature of the particular proposals. In some cases, where proposals are of an entirely straightforward nature or do not involve a listed building, a DAC might take the view that initial advice is not needed and – if the parish has provided what is needed for the DAC to make a recommendation – simply proceed to give its final advice in the form of a notification of advice.
In other cases, for example where proposals are complex or involve making changes to a listed building, the DAC is likely to take the view that it should give initial advice to a parish. The range of matters on which a DAC might give initial advice is not limited by the new Part 4. However, where changes that will have an impact on the significance of a listed building are proposed, the DAC must advise the parish of the need to provide statements of significance and needs (if it has not already provided them). It must also advise the parish of any applicable requirements as to consultation with Historic England, amenity societies, the local planning authority and the Church Buildings Council.
The DAC will not issue its notification of advice on proposals under the new Part 4 until any applicable consultation requirements have been complied with and the DAC has all the information needed for it to give its final advice. The intention is that the issue of a notification of advice to a parish should mean that the applicable consultation requirements have been complied with, so that when the faculty petition reaches the chancellor for decision there will, in the great majority of cases, be no need for the chancellor to issue special notice to various bodies inviting objections. This should result in reducing delays once a faculty petition has been submitted to the registry and mean that in the vast majority of cases a faculty can be issued without the need for further proceedings.
The individual rules in the new Part 4 make provisions with regard to:
- Process for consultation and obtaining advice – outline, [4.1];
- Documents etc. to be submitted to Diocesan Advisory Committee, [4.2];
- Initial advice from Diocesan Advisory Committee, [4.3];
- Proposals involving changes to listed buildings: statements of significance and needs, [4.4];
- Consultation with Historic England, amenity societies and the local planning authority in certain cases, [4.5];
- Consultation with Church Buildings Council in certain cases, [4.6];
- Consultation: procedure, [4.7];
- Notification of material changes made in response to consultation or otherwise, [4.8];
- Notification of advice, [4.9];
- Interim faculties and interim injunctions and restoration orders, [4.10].
A revised Schedule 1 – Matters which may be undertaken without a faculty – replaces the earlier version; as before, List A prescribes matters which may generally be undertaken without a faculty subject to the conditions specified, and List B prescribes matters which may be undertaken subject to the Archdeacon giving written notice. [Rule 20]. A number of matters have been moved from List B to List A; in some cases, a distinction is made between listed and unlisted buildings, with a wider range of works to unlisted buildings being included in List A.
The General Notes to Schedule 1 stress that a matter may not be undertaken without a faculty despite being included in List A or List B if it comprises
- works which involve alteration to or the extension of a listed building to such an extent as would be likely to affect its character as a building of special architectural or historic interest;
- works which are likely to affect the archaeological importance of a building or any archaeological remains within a building or its curtilage;
- works for all or part of which scheduled monument consent is required under the Ancient Monuments and Archaeological Areas Act 1979;
- works which involve the extension, demolition or partial demolition of a building or the erection of a new building;
- a matter which gives rise to a question of law or doctrine, ritual or ceremonial or which would, if undertaken, affect the legal rights of any person;
- the exhumation or other disturbance of human remains;
- the reservation of a grave space;
- the sale or other disposal of an article of architectural, archaeological, artistic or historic interest;
- the sale of any book remaining in or belonging to a parochial library;
- the introduction of an aumbry or another receptacle used for the reservation of the sacrament of Holy Communion;
- the introduction of a monument, or the carrying out of work to a monument erected in or on, or on the curtilage of, a church or other consecrated building or on consecrated ground.
Furthermore, the General Notes clarify that in List A and List B:
- “authorised” means authorised by faculty or under List A or List B;
- “church” includes a building which is included in the list maintained by the Church Buildings Council under section 38(1) of the Measure;
- “fabric” means the structure of a building comprising its walls, floor and roof;
- “historic”, in relation to material, means material which is of historic or architectural significance;
Given the large number of modifications made to Lists A and B, details of specific changes have not been itemized in this post; nevertheless, the Explanatory Note to General Synod, GS 2137X usefully underlines all the additions and modifications.
On 19 February 2020, Charles George QC, Dean of the Arches, will deliver the lecture “Do we still need the Faculty System?” to the Ecclesiastical Law Society. The Lecture will review the history and present scope of the faculty jurisdiction; past reviews of it from the Faculty Jurisdiction Commission (1984) to the Report on Simplification of the Faculty Process (2012); and whether the present way the system operates continues to be justified.
Also, on 8 April 2020, The Worshipful Prof Mark Hill QC, Chairman of the Ecclesiastical Law Society, will speak to the Society.on “The Faculty Jurisdiction (Amendment) Rules 2019: All Change?“.
These Rules amend the Faculty Jurisdiction Rules 2015 (SI 2015/1568) by—
(a) amending Part 1 (overriding objective) to insert signposts to other, related rules;
(b) amending Part 2 (application and interpretation) so that “article” is defined generally for the purposes of the Rules;
(c) amending Part 3 (matters not requiring a faculty) so that work carried out to oil-fired heating systems is subject to an accredited certification scheme; and to improve the manner in which provisions in rule 3.7 are stated;
(d) substituting a new Part 4 (consultation and advice before starting faculty proceedings)which, among other things, provides for Diocesan Advisory Committees to give intending applicants initial advice to assist them in relation to their proposals and to ensure that any necessary consultation with statutory and other bodies is carried out before Committees give their final advice;
(e) amending Part 5 (faculty proceedings – parties and commencement), among other things, to take account of provisions of the new Part 4 and to provide for petitions for faculties and associated documents to be publicly available for inspection online;
(f) amending Part 6 (public notice) so that public notices relating to faculty petitions include an email address for the diocesan registrar;
(g) amending Part 7 (chancellor’s jurisdiction) to provide for statutory and other bodies which have made representations to be notified of the final determination in faculty proceedings;
(h) amending Part 8 (archdeacon’s jurisdiction) so that the maximum period of an archdeacon’s licence for temporary minor reordering is increased from 15 months to 24months;
(i) making miscellaneous, minor amendments to Part 9 (special notice of petition, consultation etc.) and Part 10 (objections to faculty petition);
(j) amending Part 12 (conduct of hearings) to omit rule 12.3 (other means of giving evidence);
(k) amending Part 13 (evidence of non-parties) to clarify the relationship between provisions of that Part and provisions of Part 11 (directions) and to require that where evidence is given under Part 13 on behalf of a body, witness statements must state the extent to which a witness is speaking on behalf of the body or is acting as an expert;
(l) amending Part 14 (disposal of proceedings by written representations) so that the chancellor need only consult, rather than obtain the agreement of, the parties before ordering that proceedings are to be determined on consideration of written representations instead of by a hearing;
(m) amending Part 16 (injunctions and restoration orders) to correct a cross-reference;
(n) amending Part 17 (delivery of documents) to take account of documents that are “sent”, as well as those that are served;
(o) amending Part 24 (appeals in the provincial courts) so that the Dean need only consult, rather than obtain the agreement of, the parties before ordering that appeal proceedings are to be determined on consideration of written representations instead of by a hearing;
(p) amending Part 27 to clarify which orders are interim orders and may therefore be made by the Dean sitting alone;
(q) substituting a new Schedule 1 (matters which may be undertaken without a faculty) to increase the number of matters that fall within List A (matters which may be undertaken without a faculty and without the need for consultation) and List B (matters which may be undertaken without a faculty subject to consultation etc.);
(r) repealing Schedule 2 (consultation with Historic England, national amenity societies and the local planning authority), as its provisions are now included in simplified form in the new Part 4;
(s) amending Schedule 3 (forms) to take account of amendments made to the Rules and to improve their intelligibility and utility.
The Explanatory Note does not form part of the Amended Rules.