“…it is far easier to put these aims into a paper than it is to implement in practice”

Re St. Mary the Virgin Dedham, at [16]

The Church of England’s commitment to “net zero by 2030” is an important factor when churches are considering the options for the replacement of an ageing or defunct heating system. Despite the limited consideration given to the selection of the target year, Synod’s agreement in February 2020 has catalysed action which has appreciably raised the profile of carbon reduction by the Church when compared with preceding years. On 23 June 2022, plans were announced to assist the 16,000 local churches and 4,500 schools reach carbon net zero by the end of the decade. These will be considered by General Synod on the afternoon of Friday 8 July 2022; a recent post the Press Release and Synod Motion and made some initial observations.

Consideration in the courts

Our September 2021 post “Net zero”, church heating, and the consistory courts – III, indicated that questions remain on the assessment the public benefit of proposed changes, and in the definition of the target year(s) for the achievement of  “net zero emissions”. Since then, a number of the uncertainties have been resolved, although recent consistory court judgments suggest that some issues remain. Since February 2020, we have reviewed 24 consistory court judgments in which heating was a component, although some of the projects considered will have been conceived before this date.

In some of these, replacement of the heating system was only considered as a peripheral issue, but increasingly, the “net zero by 2030” has become an important factor in the Chancellor’s judgment. Whilst some churches have been in the position to install “low carbon” technology, in terms of their finance, location, and constraints of the building – Re St. Leonard Southoe [2022] ECC Ely 4  (solar panels, Air Source Heat Pump (“ASHP”)), for others the replacement with a gas-fired boiler has generated extensive consideration by the court and the parties involved in the petition – Re St. Mary the Virgin Dedham [2022] ECC Chd 2 , Re St. Nicolas Great Bookham [2022] ECC Gui 3, Re St. Peter Walsall[2021] ECC Lic 4, Re St. Thomas and St. Luke Dudley [2021] ECC Wor 2, and others.

The conflicting issues involved in these decisions are highlighted in the recently reported Re St. Mary the Virgin Dedham. The Chancellor acknowledged the different approaches adopted by the courts,

“[6]. The need to take into account environmental considerations when installing a new or replacement heating system has also been the subject of a number of recent judgments in other Dioceses: see the judgments of Petchey Ch. in Re St. Mark Mitcham [2020] ECC Swk 5 and Re St. Mary Oxted [2021] ECC Swk 1, of Humphreys Ch. in Re St. Thomas & St. Luke Dudley [2021] E CC Wor 2, and of Eyre Ch. in Re St. Peter Walsall [2021] ECC Lic 4. The approach adopted to the issue in those judgments is not, as I discuss below, exactly the same.

However, she found herself in the same position as Eyre Ch. in Dudley since she did not need to decide to follow one approach rather than the other:

“[22] That is because I have concluded both that (a) the Petitioners have in fact considered, with some care, the implications of their proposal for the carbon neutral agenda (in view of the exchanges which I have detailed above); and (b) on the basis of the materials before me, there are proper grounds for concluding that the gas heating system proposed by the Petitioners is in any event the most appropriate system in the circumstances”.

Many of the parties opined their views on the achievement of net-zero, although it was uncertain to what extent these views were based upon particular expertise in this area. Notably, the Chancellor observed that the DAC Heating Advisor “does not appear to have felt able to make a final recommendation” but she was able to rely upon the Archdeacon who provided the necessary confirmatory advice on the replacement boiler, thereby not needing to decide “to follow one approach [of earlier judgments] rather than the other [22].

Consideration by General Synod

The debate in General Synod will be reported in a future post. As we noted in July Synod: plans for “net zero carbon” by 2030 (23 June 2022):

• The Executive Summary indicated that whilst all 42 dioceses have registered for Eco Dioceses, only 29 Diocesan Synods had passed a motion committing to net zero carbon.
• The focus of the actions is on high-energy-consuming buildings, not the smaller less frequently used buildings that already have a very low carbon footprint. For example, a typical small church, not used every day, has an annual carbon footprint of significantly less than an average UK household. 
• With regard to Cathedrals and Churches, for 2022 to 2027: “over the duration of a Quinquennium and from 2022, all cathedrals and the top 20% of energy-consuming churches to develop net zero carbon action plans for completion by no later than 2027. These should include, as a minimum, low-carbon heating options to replace fossil-fuel heating at end-of-life, such as heat pumps or far infra-red heating panels. 
• The Routemap “is not legislative and does not obligate any part of the Church, subject to its approval by Synod, [it] will form the basis of the road to net zero carbon by 2030“. 

Whilst the Net Zero Carbon Progress Report – June 2022 states that in relation to Faculty and guidance: “Reviewed the Faculty Rules and successfully brought the revised rules to General Synod in February 2022; Created and shared a wide range of Net Zero Carbon guidance”. These changes include inter alia: a requirement to have due regard to net zero guidance; consultation before starting faculty proceedings; and changes to Lists A and B.

However, it is evident from the recent case Re St. Mary the Virgin Dedham [2022] ECC Chd 2  that the decision-making process is far from straightforward, and the pragmatic consideration of “net zero” in the Plans, supra, may make such decisions more, rather than less difficult to resolve.