In Re All Saints, Featherstone [2025] ECC Lee 1, Wakefield Metropolitan District Council sought a confirmatory faculty for felling and removing an ash tree without lawful authority [1]. The burial ground had been closed by Order in Council under the Burial Act 1853 and the maintenance obligation transferred to Wakefield MDC pursuant to s.215 Local Government Act 1972 [3]. Under the transfer of the duty of maintenance, Wakefield MDC was obliged to conduct routine inspections of the churchyard and to undertake “such works as are necessary to eliminate or reduce the risk of harm”. However, closed burial grounds remain subject to the faculty jurisdiction.
Felling a tree that is dying or dead or that has become dangerous comes under List B, and though it may be undertaken without a faculty, it requires the archdeacon’s prior written authority [9 & 10]. In addition, the 2019 iteration of the Schedule to the Faculty Jurisdiction Rules 2015, contains an innovative procedure, the Minor Works Direction, which provides that “Application may be made to the chancellor for directions as to matters not included in List A or List B that are of such a minor nature that they may be undertaken without a faculty” – which Hill Ch described as “judicial wriggle room” in respect of situations very nearly but not quite within Lists A or B [11].
Wakefield MDC was therefore obliged to obtain all necessary permissions before carrying out any works [4] – but in the present case, it failed to do so when it felled and removed a diseased ash tree from the burial ground in May 2024 [20]. Hill Ch noted that had a prospective application been made for approval by the archdeacon under List B, it would have been granted, and there was sufficient time available for List B approval to be sought and obtained prior to the tree’s removal, and it was “unfortunate and regrettable” that neither the incumbent nor the PCC was alerted to the Council’s intention to fell and remove the tree [22].
The original petition asserted a pre-existing agreement dispensing with the requirement for applications where works were required for safety reasons, which Hill Ch described as “troubling” because “No court could give effect to an agreement to subvert or circumvent the operation of the faculty jurisdiction” [24]. Nor had a copy of that alleged agreement ever been supplied [25], and he concluded that no such agreement had ever existed [26]. The Council subsequently apologised and said that it had acted in good faith, unaware that the archdeacon’s permission was required under List B [27].
Basically, then, a total foul-up by the Council. Hill Ch concluded as follows:
“34. I have come to the conclusion that it is appropriate to grant a confirmatory faculty in this instance. I do so despite my concerns about the Council’s widespread and institutional ignorance of the relevant law and procedure concerning works affecting trees in closed churchyards. The errors and misconceptions seem to be deeply embedded and widely shared. From the tree gang, to the various employees of the Council, through the investigator of the complaint, and the individual who sought to advance the Council’s case before this court on the specious basis of a non-existent prior agreement, all showed a distinct lack of understanding of relevant principles of ecclesiastical law essential to the proper discharge of the Council’s statutory duties. I am informed that the Council has learned from its mistake and put in place training and instruction so a repeat of this lapse is unlikely to occur. The opprobrium attendant upon this judgment will doubtless prove salutary.
35. Had List B approval been sought prospectively, it would very likely have been granted, and probably with a requirement for compensatory planting. I do not consider it appropriate formally to order such planting as a condition of a confirmatory faculty. However, I incline to the view that it would be a gracious gesture – both symbolic and healing – if the Council were to do so voluntarily. The precise detail can be agreed with the Archdeacon.”
He allowed the Council seven days to make written representations on costs [36].
**********
On the law relating to trees generally, see Philip Petchey, ‘That yew-tree’s shade: the law relating to trees in churchyards’ (2025) 27 Ecc LJ 26-38.
[Updated 12 March: link to the judgment added.]
I suspect the lack of knowledge of the need for a faculty/archdeacons consent may be more widespread. Some forty years ago, I was a Christian lawyer responsible for advising a local authority on a closed churchyard (amongst other things). I have no recollection whatsoever of advising on the need for a faculty to remove a diseased tree. I would have been more concerned about whether there was a TPO in place and our liability position. I am sure Halsbury’s Laws of England would have been my source and I don’t think faculties were mentioned at all. I may be wrong on that. I also think there was an informal agreement with the C of E that PCCs would not exercise such rights (the graveyard may have been an LA Responsibility for many years of course). Is anyone with more recent knowledge able to confirm or refute any of this?
I guess you’re right – what the average local authority officer knows about the faculty jurisdiction can probably be written on the back of a postage-stamp. I don’t know what the answer is to that.
“some forty years ago” may be taking us back to the days prior to 1991, and to a jurisdiction far removed from the modernity of Lists A and B.
Until s.11 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 came into force which brought “articles appertaining” to churchyards, which clearly includes trees, within the jurisdiction of consistory courts, churchyards were the business of the Parsonages Board of the diocese.
And according to Newsom “though cases about trees were theoretically within the jurisdiction of the consistory court, very few cases about them actually arose there”.
However, under s.6 (3) of the 1991 Measure the chancellor was required to give written guidance to all PCCs as to the “planting, felling, lopping and topping of trees in churchyards”.
The guidance which was provided by HHJ Thomas Coningsby QC, and copied by many other chancellors, including myself when I was chancellor of the diocese of Wakefield within which All Saints Featherstone then fell, provided that “Where the PCC is advised by its expert that a tree or trees should be felled because of disease or for safety reasons … a copy of the written report of such expert must be supplied to the Archdeacon who may authorise the felling…”.
So the likelihood of any agreement with a local authority as they alleged, even pre the 2018 Measure, would seem to be very remote indeed.
Thanks, Peter. It would be the mid-eighties when I was newly qualified and very keen. I Appreciate your explanation.