Does the grant of a faculty authorising works to a church building or its surrounding property render immunity from an action for nuisance? The issue has arisen again in relation to two objections to a recent faculty petition.

In Re St James, Southlake [2025] ECC Oxf 1, the vicar and one of the churchwardens petitioned for a faculty to fence grassed areas bordering the church in order to provide a safer outdoor space for children’s church activities and for community groups using the open space [2]. The accompanying statement of needs explained that the major need was for increased safety for children using the church grounds, who often went out into the grounds with parental supervision after church, sometimes to play ball games. With totally open grounds, there was an increased risk of children going after balls into adjacent gardens or the road, and during events such as barbecues it could be “challenging” for parents of small children to keep a constant eye on them. There were also “children with special needs who attend the church, and who could wander off without understanding the possible consequences of doing so”. In addition:

“Many community groups make use of the church, as well as church groups (such as Guides, Brownies, and toddlers). The parish would like them to be able to make better use of the outside space, particularly in good weather. The pre-school group does have a limited enclosed area, but others do not” [3].

The parish had also experienced several acts of low-level vandalism [4], and the proposal had the full support of the Diocesan Advisory Committee and the Parochial Church Council [5 & 6].

There were two written objections, arguing that, under a restrictive covenant, fencing was not permitted on the estate generally, that children playing around the church after Sunday services was a nuisance, and that when St James’s had wanted to extend its building the authors had been assured that the area would not be used for recreation [9-11]:

“Only this Sunday, four children aged about 8 years old were left unattended to play on the church lawn. They screamed, shouted and kicked the football onto my property with no adult to stop them. With a fence, this type of unsupervised behaviour will be even worse” []12].

However, neither objector elected to become a party opponent [13].

Hodge Ch had had occasion to consider the issue of nuisance in a previous judgment that he had given as Chancellor of the Diocese of Blackburn: Re St Paul, North Shore, Blackpool [2024] ECC Bla 6. In that judgment, he had explained at [14] that

“It is no part of the function of the consistory court to adjudicate upon complaints of nuisance to adjoining land; that is a matter for the civil courts. Nor does the grant of a faculty authorising particular works operate to render them immune from challenge in the civil courts, in accordance with the general law governing the tort of nuisance. Just as the grant of planning permission cannot render works immune from challenge under the civil law of nuisance, neither can the grant of a faculty by the consistory court. The grant of a faculty merely renders the carrying out of the works thereby authorised immune from challenge under ecclesiastical law, or (in the case of a listed building) from challenge for want of secular listed building consent. It does not operate to derogate from any rights enjoyed by the church’s neighbours under the general law of nuisance.”

He reiterated that position in relation to the application before him:

“I would repeat and endorse those observations in the present case. I should add that similar considerations apply to assertions of the threatened breach of any relevant restrictive covenant. As with the tort of nuisance, the enforcement of restrictive covenants is a matter for the ordinary civil courts. The grant of a faculty cannot operate to discharge or modify the operation or effect of a restrictive covenant. There is a statutory jurisdiction to discharge or modify a restrictive covenant in clearly defined circumstances laid down in s. 84 of the Law of Property Act 1925 (as amended). However, the jurisdiction to do so is vested not in the Consistory Court but in the Lands Chamber of the Upper Tribunal [19].”

It was clear to him that the church wanted to be a good neighbour and was prepared to meet the objectors “to air their grievances and to correct inaccuracies or misunderstandings” – and there was nothing further that he could suggest, except to note that “The grant of the faculty … will in no way derogate from the objectors’ civil rights and remedies” [20].

The faculty was duly granted [21].