In Re St. Mary Stalbridge [2024] EC Sal 1, Willink Dep. Ch. set out the circumstances in which an oil-fired boiler was installed in the church without a faculty; explained his decision to grant a confirmatory faculty; and the conditions under which this was granted. In the same judgment, the Deputy Chancellor gave directions requiring the provision of further evidence on the circumstances in which the boiler was unlawfully installed. Those directions are included as an annex to the subsequent judgment Re St. Mary Stalbridge [2024] EC Sal 2 which considers how the illegal act occurred and determines the court’s response.

History

The narrative referred to in the judgment was derived from the evidence of the incumbent; the PCC Secretary; and the church warden. The history of the case is reviewed, including; PCC meeting, 27 September 2023 [3] to [6]; letter to the Bishop of Salisbury, 3 October 2023, [7] to [15]; further matters, [16] to [18]; and the involvement of the heating contractor, [19] to [24]. Relevant extracts are reproduced below.

Collective responsibility

The incumbent stated that whilst aware that the proposed conduct was unlawful, he chose to support the PCC’s decision which he justified on the basis of “collective responsibility” [5]. The Deputy Chancellor considered this to be “an error of judgment on his part”, stating:

“[6].The incumbent is not merely a member, or even primus inter pares, of the PCC; he is the person in whom responsibility for the care of this listed building ultimately vests. While it might put an incumbent in an unenviable personal position, the Church of England is not a congregationalist church, and there may be occasions – and this was one such – where the incumbent cannot stand shoulder to shoulder with the PCC. The continued existence of the ecclesiastical exemption relies not merely on the existence of the faculty system, but on its participants’ respecting and operating it in practice, and that was not seen to happen on this occasion”.

Letter to the Bishop

The petitioners’ letter disclosed “a disappointing level of misunderstanding of the faculty system, particularly since the incumbent at least had the experience to know that the grant of a faculty is not in the gift of the DAC, and the referral of the petition to the Chancellor is not an appeal process but the inevitable course of events [8].

On the letter’s parting shot that the PCC was “fully aware that the diocese could challenge our decision but are also aware that this could attract a lot of media attention”, “it was hard not to read this as some sort of veiled threat”; and giving all possible allowance for the frustration that was being felt, it was inappropriate to threaten consequences should “the diocese” dare to hold the parish to account for taking a course of action which it knew to be unlawful [11].

From the information provided by the heating contractors, (i.e. not that from the PCC), the Deputy Chancellor noted that the contractors were actually commissioned to instal the boiler in the church by email sent the same day as the letter was sent to the Bishop. “In all the circumstances, the suggestion that any reply to the letter would have led to a different course of events seems fanciful.”

Further matters

Another matter which appeared to illustrate the petitioners’ awareness of the wrongfulness of their actions related to the involvement of their own electrician, (who was also a member of the DAC), who had been extensively involved in discussions about how to heat the church. The judgment notes:

“It is hard to escape the impression that the petitioners wished to avoid the DAC, through [the DAC electrician], becoming aware of the works being done until it could present them as a fait accompli. In fact, the first the DAC was aware of the works was when the DAC chairman heard the incumbent talking about the installation in breach of faculty rules at a clergy training event” [17].

Heating contractor

With regard to the heating contractor, the Deputy Chancellor said:

“[23] In this context I can do no better than repeat the words of Hill Ch. in re Holy Trinity and St Jude, Halifax [2023] ECC Lee 3: 

‘[12]. It cannot be restated often enough that those whose business includes work on church buildings or in churchyards of the Church of England must be familiar with the process and procedures of the faculty jurisdiction and have a firm grasp of the principle that unless a faculty (or other authorisation) has been obtained, any work done will be unlawful. As I observed in re All Saints, Buncton [2018] ECC Chi 1, at paragraph 80:

‘… contractors should always, invariably and without fail obtain a copy of the relevant faculty (or other authorisation) before they commence any works …’

[13]. … Those who embark upon works on church property without reading and digesting the content of the relevant faculty do so at their own peril, and must live with the consequences, sometimes draconian, that can follow.”

[24]. I would only add that this applies not only to contractors but also to anyone who procures unlawful works to churches.”

Disposal

In his disposal of the case, the Deputy Chancellor states [emphasis added]:

[25]. As set out above, [the heating engineers’] conduct is not entirely beyond reproach. However, realistically the only sanction I could impose on them would be to order that they not be permitted to work in any church in the diocese for a set period of time. In the circumstances of this case and recognising the regard with which the firm appears to be held, this would be too draconian. I limit myself, therefore, to advising them that in future they must always, invariably and without fail obtain a copy of the relevant faculty (or other authorisation) before they commence any works in any church.

[26]. However, while I am not deaf to the way in which the petitioners sought to justify their actions, I cannot overlook the sustained and serious way in which the conduct of the incumbent and the PCC fell short of what is required of them by the faculty system. Some sanction is appropriate.

[27]. I propose to make an order under s.78(3) Ecclesiastical Jurisdiction and Care of Churches Measure 2018, known as an excluded matters order. This will have the effect, for a specified period of time (which I propose should be two years), of depriving the parish of the benefit of List B authorisations. Any works falling within List B which would ordinarily require only the authorisation of the Archdeacon will, during the specified period, instead require a faculty.”

He added “[as] the making of such an order is not urgent, I am required by s.78(4) to seek the advice of the DAC before I make such an order. I will therefore ask for their advice, both as to the principle of making the order and as to the suggested duration. A final decision will follow that advice”.

Postscript

Willink Dep. Ch. puts on record that on 11 January 2024, prior to the hearing, he received a letter from a local Member of Parliament, “plainly written at the instigation of someone connected to the parish”, asking him to take a particular approach in his considerations. He also records (at [30]) that he “paid no regard to the letter”.