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

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 unexpectedly agreed to the “net zero by 2030” target for the Church of England’s greenhouse gas emissions. The judgment Re St. Thomas & St. Luke Dudley [2021] ECC Wor 2, delivered on 5 May and circulated on 29 May 2021, was reviewed in the second part, “Net zero”, church heating, and the consistory courts – II. Here the Chancellor raised the fundamental issue how the consistory courts should approach cases involving the Church of England’s “net zero” target. In this post, these two contrasting approaches are considered further, and areas of commonality explored. For completeness, a further two recent judgments are included in the Postscript.

Faculty jurisdiction and climate change

Prior to her judgment Re St. Thomas & St. Luke Dudley, Jacqueline Humphreys  published an important article in the Ecclesiastical Law Journal (“the article”) [1], which is prefaced:

“While aspects of the present system [i.e. the faculty jurisdiction] can and do facilitate some necessary change, to achieve the swift and widespread changes required within the timescale envisaged a more radical overhaul is required because the present faculty system favours the status quo, however bad that is from a carbon emissions perspective”.

The Article states:

if there were simple legal obligations to promote carbon reduction on each person involved in the care of churches and at each stage of the faculty process, this should have the effect of normalising the assessment and reduction of carbon emissions when undertaking any works in respect of churches”.

It continues with suggestions for changes that could be made to the current legislation to achieve this, including “a new statutory duty should be imposed upon chancellors to have regard to the level of carbon emissions of a church and the impact upon them of the works proposed in a faculty petition” which would sit alongside the Duffield principles. In practice, there are some factors which militate against the early adoption of these suggestions:

  • the lack of environmental expertise among those involved in the decision-making process, including some of the professionals whose role it is to support parishes in their care of buildings (and hence provide advice to be considered by the consistory courts), a point made in the Article.
  • current uncertainties in the guidance issued by the Church of England with regard to the scope of the “net zero” requirement, aspects of which may, or may not, be included after 2022.
  • decisions by some dioceses, (i.e. Oxford) to reduce their emissions to net zero by later than 2030.


To be effective, the “net zero” culture must be adopted throughout the Church, and the same criteria should be applied in each diocese. We noted in Part I, that in view of the relatively short time since setting the “net zero” target in February 2020, it was unsurprising that the Church’s carbon reduction aspirations had not featured in some diocesan considerations and in schemes coming before the courts. Information on the definition and scope of “net zero”  did not become available until a paper was presented to General Synod in November 2020. [GS Misc 1262 – Environmental Working Group: Rising to the Challenge, for discussion, see paper on Business Done, Mission and Business Affairs Council (“the Working Group Paper”) [2].

The Working Group Paper, infra, indicates that as of October 2020, a “net zero motion” had been passed by only 15 dioceses, although one was planned by a further 7, leaving a further 20 with no reported progress on this issue. More recently, in February 2021 it was reported that nearly 5,000 churches had submitted 2019 data via the Energy Footprint Tool (EFT) of which five percent were already net-zero carbon. The EFT reopened on 30 March 2021 for the entry of 2020 utility bills, and closes at the end of September 2021.

With regard to the instant case, the Worcester Diocesan Synod did not agree to the General Synod’s net zero target until 13 March 2021, i.e. after the petition from St. Thomas & St. Luke Dudley,  which is dated 8 February 2021, but. before the judgment was delivered on 5 May 2021.

ChurchCare is in the course of updating its guidance on church heating; new sections were added in February and August 2021, and more sections are to be added as they are become available [3].

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].

In considering 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) [3]. It notes that whilst 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 was given to General Synod in Rising to the Challenge: reaching Net Zero by 2030 GS Misc 1262, (November 2020), (“the Working Group Paper”) [2]. This 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 [emphasis added]:

“[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 [4]. 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 cited 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.”

 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.”


Following Re St. Thomas & St. Luke Dudley, two further judgments concerning church heating have been handed down: Re Peel Cathedral [2021] EC Sodor 2  and Re St. Chad Dunholme [2021] ECC Lin 2. In the former, The Vicar General & Chancellor commended the proposal to incorporate underfloor heating on the grounds of improving accessibility [7]. On 2 March 2020, the Diocesan Synod discussed and adopted the motion on the climate emergency and as a diocese is aspires to be carbon net zero by 2030. However, the judgment does not comment on the carbon emissions associated with the underfloor heating.

In Re St. Chad Dunholme, by a Petition dated 9 October 2019, the Petitioners sought a faculty to reorder internally St Chad’s as well as undertake external works. The greatest concerns of the amenity societies related the mezzanine and stairs, although in view of the Church’s “net zero” commitment, the component of the works relating to heating is perhaps more significant. On this issue, the CBC raised the possibility of installing a renewable energy source and suggested an air or ground source heat pump [36].

The Petitioners acknowledged that this would be a major project, and noted that the proposed heating system would be compatible with integration with an air/ground heat source heat pump in the future, [37, 38].  In his determination of 21 January 2021, the Chancellor granted an interim faculty for the external works subject to some conditions. In respect of the internal works he asked that the current version of the proposals should be scheduled and re-served on the DAC, the CBC, HE and the amenity societies who had commented on the proposals, to aid clarity.


The above judgments and discussion raise some basic questions: how should projects related to the reduction of carbon emissions be assessed, when, and by whom? Associated with these are issues relating to the magnitude of the Church’s GHG emissions [5] and the impacts of their reduction; its total emissions constitute less than 0.05% of those of the United Kingdom, which themselves are one hundred times smaller in global terms [6]. Consequently, when assessing the introduction of new heating provisions, the reduction in carbon emissions is unlikely to be discernible, even in the local context.

Assessing “public benefit”

The article by Jacqueline Humphreys cites Re St Mary Moseley [2011] Birmingham Const. Ct, Cardinal Ch. In addressing the Bishopgate Questions [7], HH Judge Cardinal said: “I am satisfied that the petitioners have proved necessity for a number of reasons, though of course I accept that in being so satisfied, I have conducted a balancing exercise in coming to that conclusion

  • They need to have an efficient heating system that covers the expense of worshiping in an old building;
  • They are properly fitting in with the prevailing common view that energy resources should be conserved and witnessing to their commitment to that;
  • They are complying with the Church’s national commitment to such a policy.”

With regard to applying the criteria in Re St. Alkmund, Duffield [2013] Fam 158, the article suggests “[a] new statutory duty should be imposed upon chancellors to have regard to the level of carbon emissions of a church and the impact upon them of the works proposed in a faculty petition. This would sit alongside the Duffield principles that currently provide the basis for determining most faculty applications”.

Target year(s) for “zero emissions”

In its seven-year plan on climate change and the environment, Church and Earth 2009-2016, the Church of England aligned its targets to those of government, as initially set and again when revised. These sought to cut its carbon footprint by an interim target of at least 42% by 2020, and 80% by 2050. However, by 2012 there was limited “buy-in” from at diocesan level [8].

In terms of the direct impact on global warming, General Synod’s 2020 decision to  change target year for “zero emissions” from 2045 to 2030 is unlikely to have an a significant impact. Furthermore, on 14 March 2021 the Oxford Diocese changed its target year to 2035 [9], and on 20 April 2021 the UK government announced that it would set in law “the world’s most ambitious climate change target“, cutting emissions by 78% by 2035 compared to 1990 levels [10].

Nevertheless, the change from 2045 to 2030 has provided the necessary catalyst for revitalizing initiatives for carbon reduction within the Church. Whether the targets set are achievable and the extent to which they would stand external scrutiny is another question. 

David Pocklington

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

[2]. General Synod Working Group Paper, Rising to the Challenge: reaching Net Zero by 2030, GS Misc 1262 : Appendix 3, A practical path to “net zero carbon” for our churches. [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]. CBC Guidance: Church Heating Principles, Cathedral and Church Buildings Division, February 2021. This document states that In keeping with the Church’s commitment to radically reducing its greenhouse gas emissions, churches should be expected to have at least carefully considered the option of moving away from fossil-fuel based heating (gas and oil boilers) towards electric-based heating (such as air- or ground-source heat pumps, pew heaters, and far infra-red radiant heaters), with these being powered by ‘green’ electricity. Other options to be considered include hybrid boilers, which combine a heat pump and a conventional boiler, and – if well implemented – biomass [emphasis added]. .

[4]. 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.

[5]. The Church of England’s annual GHG emissions have been estimated to be 185,000 tonnes CO2e, [Church of England, Energy Footprint Tool 2019, published 2021].

[6]. UK GHG emissions are about 414.1 million tonnes carbon dioxide equivalent (MtCO2e) and account for around 1% of the global total, based on a range of estimates produced by the UN, the International Energy Agency and the World Resources Institute amongst others. DBEIS, 2020 UK greenhouse gas emissions, provisional figures, 25 March 2021.

[7]. In re St Helen’s, Bishopsgate [1993] London Consistory Ct, Cameron QC Ch. The balancing exercise that diocesan chancellors undertake was reviewed; the decision by the Court of the Arches Re St Alkmund, Duffield [2013] Fam 158 now sets out the authoritative test that chancellors must apply when considering proposed changes to church buildings.

[8]. By 2012, it was estimated that 45% of dioceses had instituted all the necessary procedures and were undertaking structured, comprehensive programmes of work; 36% had initiated action but had not instituted a framework within which parishes might work to achieve the targets; and the remaining 18% restricted their activities to the less quantitative issues of ‘the environment’, and had not addressed carbon reduction [10]. (D N Pocklington, “The role of religion in the development of environmental legislation”. A dissertation submitted in partial fulfilment of the requirements for the degree of LLM in Canon Law, Cardiff University, 2012).

[9]. On 14 March 2021 the Oxford Diocesan Synod agreed to a wide-ranging plan of practical action, prayer and advocacy, including a move towards a net-zero target of “year-on-year reductions consonant with at least reaching 70% cuts by 2030 and net zero by 2035, or as soon thereafter as is possible“. The Bishop of Oxford, the Rt Rev Steven Croft is now a member of the newly formed House of Lords Environment and Climate Change Committee.

[10]. UK Government Press Release, UK enshrines new target in law to slash emissions by 78% by 2035, (20 April 2020). [The year 1990 is the base year under the Kyoto Protocol].

Cite this article as: David Pocklington, "“Net zero”, church heating, and the consistory courts – III" in Law & Religion UK, 16 September 2021, https://lawandreligionuk.com/2021/09/16/net-zero-church-heating-and-the-consistory-courts-iii/


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