“Net zero”, church heating, and the consistory courts – II

The first part of this series of posts, “Net zero”, church heating, and the consistory courts – I, (24 May 2021), reviewed twelve judicial considerations of replacement heating schemes, most of which had been handed down post-February 2020, the date on which General Synod agreed the “net zero by 2030” target for the Church of England’s greenhouse gas emissions. This second part considers the judgment Re St. Thomas & St. Luke Dudley [2021] ECC Wor 2 which was delivered on 5 May and circulated on 29 May 2021.

Re St. Thomas & St. Luke Dudley

The petitioners sought permission for the installation of a new heating system, an additional toilet, and the reconfiguring of part of the building used as the “Youth Room”. The details of the heating system are summarized in [23] to [29] and the position of the DAC in [30] and [31]. The Chancellor, The Worshipful Jacqueline Humphreys, summarized her concerns about the heating proposals in [32] to [43], and decision to approve the petition in [44] to [54], subject to the conditions in [55].

With regard to the Church of England’s net zero target set in 2020 [32], the judgment makes reference to the CBC Guidance Church Heating Principles (February 2021) [1]. It notes that although the guidance “does not insist that gas and oil powered heating is never the right solution for a particular building”, it requires “a proper assessment of the needs, investigation of the options and consideration of zero carbon alternatives”. Although not cited in the judgment, similar advice is given in Rising to the Challenge: reaching Net Zero by 2030, (November 2020), (“the Working Group Paper”) [2]. This also states inter alia that[i]f there’s no alternative that does not run on fossil-fuels, then replace an old gas boiler or an oil boiler with a new efficient gas boiler.”

In the instant case, the papers supplied to the Chancellor did not indicate that consideration had been given to any form of heating system other than a conventional gas-powered “wet system” [34]. She commented:

“[35]. I am troubled by this application, and by the apparent lack of consideration of non-fossil fuel alternatives. I know I am not the only chancellor faced with the difficult decision whether or not to permit the introduction of new heating systems that will last for 10-15 years or more and do not accord with the objective of achieving net zero carbon by 2030 [3]. Two similar applications have been reported as coming before the Chancellor of Southwark in the last 12 months.

[39]. In so far as these judgments may be read as suggesting that a chancellor should not consider the environmental implications of a proposal, at least where the petitioners have already done so, I respectfully disagree.”

Equally importantly, with regard to the materials supplied by the petitioner(s), she said [emphasis added]:

“[42]. That the environmental implications of a petition may be properly considered by a chancellor is also clear from the Faculty Jurisdiction Rules 2015. Under FJR 4.2(2)(b) and 5.5 (2)(e) a petitioner is required to provide to the DAC and to the chancellor respectively ‘any advice or other material relating to the environmental implications of the works or proposals’.

If documents showing the consideration of the environmental implications of the proposals are to be considered by the chancellor in determining whether the case for the works is made out, it is clear that such implications may be a relevant element of his or her deliberations. It seems to me that such implications do not cease to be relevant in an appropriate case simply because the petitioners have not obtained any such ‘advice or other material’.

The two cases referred to are Re St Marks, Mitcham and Re St. Mary, Oxted, to which might be added Re St. Michael & All Angels Blackheath Park, all of which are considered in Part I of this post. Chancellor Humphreys continued:

[43]. Whether or not I am correct as that a chancellor should take into account environmental concerns irrespective of whether the petitioners have already done so, in the case currently before me there does not appear to have been any consideration by the petitioners of the “‘carbon neutral agenda” or any consideration of alternatives for the heating of the church. To that extent the situation is very different from the circumstances in Re St Mark, Mitcham and Re St Mary, Oxted. 

Where no consideration of alternatives has taken place, there does not appear to be any dispute that it is entirely proper for a chancellor to consider the environmental consequences of a proposal for themselves. If a chancellor has insufficient expert knowledge in respect of the environmental impact of the proposals, they may direct that such information is obtained, for example by way of the petitioners commissioning an expert report on the matter.”

With regard to the Diocese of Worcester, the petition from St. Thomas & St. Luke Dudley is dated 8 February 2021, but the Worcester Diocesan Synod did not agree to the General Synod’s net zero target until 13 March 2021. Furthermore, the Chancellor stated [emphasis added]:

“[47]. I have so far only had preliminary discussions with the DAC and the Diocesan Environmental Committee as to how the Diocese of Worcester’s commitment to achieving net zero carbon emissions should be worked out within the operation of its faculty system. Hitherto, there has been no widespread notification to petitioners and the DAC that I will expect detailed assessment of energy use and consideration of carbon neutral alternatives when considering proposals involving the substantial use of energy – particularly in respect of the installation of boilers.

However, it is clear to me in light of the Diocese’s commitment and the clear CBC advice now available to all petitioners, that an energy use audit, and an options appraisal and/or an expert report considering non-fossil fuel alternatives should take place at an early stage in respect of such faculty applications in the future. This judgment puts all relevant parties on notice of this.”


To be effective, the “net zero” commitment must be adopted throughout the Church, and the same criteria are applied within each diocese. The Working Group Paper, supra, indicated that as of October 2020, a “net zero motion” had been passed by only 15 dioceses, although a further 7 had one planned, leaving a further 20 with no reported progress on this issue.

As we noted in Part I, in view of the short timescale of events since setting the “net zero” target in February 2020, it was unsurprising that the Church’s carbon reduction aspirations had not featured in some of these schemes. This was also the case for Re St. Thomas & St. Luke Dudley in which the diocesan commitment to the target was made after the petition was submitted. Similarly, none of the post-November 2020 judgments made made reference to the definition and scope of “net zero” in the Working Group Paper; however, this carries less authority than CBC Guidance [2].

The above judgments raise the basic question: how should projects relating to the reduction of carbon emissions be assessed, when, and by whom? The approach in the Diocese of Worcester was clarified by the Chancellor at [47] which reflects suggestions in her article in the Ecclesiastical Law Journal [4].

With regard to the wider Church of England, however, there is clearly work to be done on these and other issues impacting on the achievement of “net zero”. On 1 June, the Rt Rev Graham Usher, Bishop of Norwich became lead bishop for the environment, the Rt Rev Steven Croft, Bishop of Oxford in on the newly-formed Environment and Climate Change Committee, and on 15 September, The Right Worshipful Morag Ellis QC, Dean of the Arches and Auditor, will deliver the lecture “Clean and green – law and the Carbon neutral Church” to the Eccesiastical Law Society. Watch this space.

David Pocklington

[1]. This states that careful consideration should be given to moving away from fossil-fuel based heating (i.e. gas and oil burners) towards electric based heating such as air- or ground-source heat pumps, pew heaters, and far infra-red radiant heaters powered by “green” electricity. Other options to be considered include hybrid boilers that combine a heat pump and a conventional boiler and (if well implemented) biomass.

[2]. Appendix 3, A practical path to “net zero carbon” for our churches of Rising to the Challenge: reaching Net Zero by 2030, GS Misc 1262 [2]. [Confusingly, this is not headed as “Appendix 3” but is to be found between Appendix 2 and Appendix 4]. This, however was a “Background Paper from the Environment Working Group” issued to General Synod, whereas CBC Guidance Notes have a degree of legal authority  as they are issued under statutory authority.

[3]. In the Church of England webinar “Heating, to replace or nor replace?” it was stated that whilst in general the average life of a boiler was 20 years, in churches they could be much older, although with a consequent loss of efficiency.

[4]. Jaqueline Humphreys, The Role of the Faculty System in Achieving Net-Zero Carbon Emissions by 2030. (2021) 23 Ecc LJ 50–66.

Cite this article as: David Pocklington, "“Net zero”, church heating, and the consistory courts – II" in Law & Religion UK, 9 June 2021, https://lawandreligionuk.com/2021/06/09/net-zero-church-heating-and-the-consistory-courts-ii/


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