“[A]s your Solicitor, I should have no hesitation in saying “Chance it… “

W S Gilbert, The Mikado, Act I

However, on matters concerning the Church of England Consistory Courts and the Commissary Court of the Canterbury diocese, we would have no hesitation of stressing: “Don’t event think about it” [*].

The recent judgment Re St. Mary Doverdale [2025] ECC Wor 1 considered the failure to observe condition in a faculty, and imposed sanctions on both the Petitioners and Diocesan Board of Finance, each of which was ordered to pay 50% of costs of the judgment. In his analysis of the case, Summers, Deputy Chancellor of the Diocese of Worcester, stated:

“[22] Orders of the Consistory Court, like the orders of any court of law, are be complied with unless set aside or varied by the court itself or on appeal. Any failure to comply with the terms of an order, especially a deliberate failure, is a serious matter which will have consequences for those involved. In the most serious of cases, those who are in contempt of the Consistory Court may be referred by that court to the High Court, which may investigate and punish those breaches as if they were a contempt of the High Court, which can result in a fine or imprisonment.

[23]. While much of the faculty system is conducted with admirable informality, orders of the court are not relaxed guides as to what should happen next. They mandate steps which are designed to protect, according to the requirements of the law, the peculiar cultural and spiritual treasure which is the estate of places of worship in the Church of England.

[24]. In particular, the Consistory Court has had entrusted to it the regulation of what is known as the “ecclesiastical exemption”, contained in s. 60 Planning (Listed Building and Conservation Areas) Act 1990. The ecclesiastical exemption exempts listed ecclesiastical buildings from the standard secular listed buildings consent system, an exemption which affords particular advantages to those places of worship, recognising their special function.

If the Consistory Court were to fail to take breaches of its orders seriously, there is a risk that the ecclesiastical exemption might be removed, given that its existence is predicated on there being an equally rigorous system to regulate the alteration of affected buildings as exists for secular buildings.

[25]. Other sanctions which the Consistory Court has at its disposal include injunctions requiring unauthorised work to be undone, making costs orders against relevant parties and non-parties and removing List B privileges from churches which have disregarded the requirements of the faculty system. Clergy are also subject to the disciplinary system of the Church of England and there is no reason as far as I can see why that would not encompass ignoring the orders of a Consistory Court”.

Turning to the present case, the Deputy Chancellor concluded that it was not disputed that the Condition attached to his order was ignored. In considering what consequences should flow, he summarized the aggravating features of the failure to comply with the Condition [27] and also the mitigating features of the failure [28].

Taking these factors in the round, he concluded that the appropriate order was that the Petitioners should pay 50% of the costs of this judgment and the diocese the other 50%. This order “reflects the deliberate disregard of the Condition by the Petitioners but also the mitigating factors, in particular that the failure of the diocese to provide promised information was the point at which matters began to go wrong”.

Significantly, he also stated:

“[30] I have determined that the Petitioners deliberately did not comply with the Condition. One of them…is an ordained priest. I therefore consider I should direct that a copy of this judgment be sent to the local archdeacon for consideration. What disciplinary steps, if any, should follow, is entirely a matter for the diocesan authorities to consider”.

We will follow developments in this case with interest.

Comment

Other posts have reviewed the sanctions imposed by the Church’s courts:

In 2014 we posted Ignorance of the Faculty Jurisdiction Rules is no excuse… following two strongly-worded judgments in Re Emmanuel Leckhampton [2014] Gloucester Const Ct, Rodgers Ch. and Re St. Giles Uley [2014] Gloucester Const Ct, Rodgers Ch. where the actions of the Priest-in-Charge and churchwardens were sharply criticized by the Chancellor. However, the criticism levelled at the Priest in Charge and churchwardens by Chancellor Rodgers in these cases was quite mild in comparison to that in Re St Mary Mildenhall [2016] ECC SEI 1, which concerned “a flagrant disregard of the faculty jurisdiction” by both the P-i-C, the churchwardens and an electrical contractor and in which the P-i-C “had decided ‘to take the risk’” of proceeding without a faculty [25].

In Re St. Mary Stalbridge [2024] EC Sal 2 , Willink Dep. Ch. stated:

[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.”

Willink Dep. Ch.  also put 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”.

Other posts in which we have reviewed breaches of faculty conditions are: Deliberate breach of faculty conditions, (6 February 2018); “Ignorance of the Faculty Jurisdiction Rules is no excuse…”, (14 February 2014); and “Risks of disregarding the faculty jurisdiction”, (3 June 2016). Also the case Re St Peter & St Paul Pettistree [2017] ECC SEI 6 concerned a “deliberate and avoidable” breach of the terms of the faculty by a professional on the list of DAC-approved architects.

[*]  A phrase popularized by a Pepsi commercial from 1993.

Updated: 11 November 2025 at 18:07.