Re St. Mary-le-Moor Cadmore End [2026] ECC Oxf 12
An unopposed retrospective faculty application for the alteration of two original pews and their installation in the porch of St. Mary-le-Moor Cadmore End, was made against the background of a 2018 quinquennial inspection report; this report reiterated the need to undertake significant repairs to the nave roof, [2], [3]. The unintended consequences of proceeding with the unauthorised installation of the pews have had an impact on the undertaking of developments in the parish over the next two years.
The essence of the case is encapsulated in the Chancellor’s statement [emphasis added]:
[14]. …I am satisfied that the removal of these two pews from the rear of the church, and their permanent alteration to enable them to be installed in the church porch, has caused no harm to the significance of this Grade II listed church building…The parish have therefore provided a clear and convincing justification for this proposal. I would therefore have had no hesitation in granting this faculty had the parish applied for it prospectively, before they had carried out the alterations to the pews. But they have not done so. Instead, they have carried out the works before obtaining faculty permission, [a]nd they have done so in the full knowledge that faculty approval was required.
Whilst the illegal actions of the parish were a primary concern of the court, the importance of these in relation to the ecclesiastical exemption was also stressed[1].
The history of the petition
Following a review of the history of the petition[5] to [8], the Chancellor indicated to the Registry that he was considering whether to make an “excluded matters order” under S78 (3) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (the 2018 Measure), [2]. Such an order would deprive the parish of the benefit of List B authorisations for a specified period of time, which he proposed should be two years.
As the making of an order was not urgent, the Chancellor was required by S78(4) first to seek the advice of the DAC[9]. In due course, responses by email were received from the Head of Church Buildings (and Secretary of the DAC), the Chair of the DAC, and the Archdeacon of Buckingham. All three supported the proposed route forward. The Head of Church Buildings expressed the view that “it is important that there is a consequence when the rules, which are clearly understood, are ignored, and this would signal that this is not acceptable”. The DAC Chair indicated that on the basis of the timeline provided by the Church Buildings team, it sounded very sensible to inhibit the parish’s freedom a little in order to regularise their behaviour. He therefore had no objection at all to [the] proposal, which seemed very well judged. The Archdeacon also indicated that she was content with [his] suggestion [10].
The Church Buildings team was requested to provide a full “email trail” relevant to the parish’s knowledge that they should not have proceeded to carry out the works without a full faculty[11]. From this it was clear that the works to the two pews, and the replacement of the original benches in the church porch, was undertaken both (a) without faculty permission and (b) in the full knowledge that such prior permission was required [12].
The legal framework
As a Grade II listed church building, the court was required to have regard to the Duffield guidelines when determining this faculty application, the leading case in the Court of Arches Re St. Alkmund, Duffield [2013] Fam 158. In the present case, Hodge Ch. was satisfied that the removal of these two pews from the rear of the church and their permanent alteration to enable them to be installed in the church porch, had caused no harm to the significance of this Grade II listed church building. But for the actions in the absence of a faculty, a prospective application would have presented few difficulties, if any.[14].
Excluded Matters Order
Hodge Ch. reviewed the relevant parts of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 relating to cases where a faculty was not required, viz.
He noted that in addition, the Faculty Jurisdiction Rule 3.6(4) provides that:
“Where the chancellor has made an excluded matters order and it is proposed to undertake a matter specified in the order in respect of the parish, church, churchyard or other building or place in the diocese to which the order relates, a faculty (or an interim faculty under Part 15) must be sought”.
Sanctions
In his analysis, the Chancellor cited Re St. Mary Stalbridge [2024] EC Sal 1 & 2 and Re St Mary the Virgin, Stevington [2024] ECC StA 1[3]. In Re St. Mary Stalbridge [2024] EC Sal 1 he noted that the court had concluded the parish had not followed the ‘net-zero’ guidance, although the particular chronology provided a cogent reason for that failure. Considering the matter afresh, with the benefit of additional material on the cost of alternatives which had not been available to the DAC, the court was satisfied that a new, oil-fired boiler was the only practicable, and affordable, heating solution available to the petitioners. It therefore granted a confirmatory faculty, subject to a condition that carbon emissions from fossil fuel must be subject to accredited offsetting[18].
The unlawfulness of the Petitioners’ actions were addressed in Re St. Mary Stalbridge [2024] EC Sal 2. The Petitioners had written to the diocesan bishop and others announcing their intention to proceed in the absence of lawful authority, and expressing frustration at the Church’s lengthy legal processes[4]. The incumbent’s evidence was that, had the recipients responded to that letter with advice as to what could or could not be done, there might have been a different turn of events. However, given that the letter had been written on the same day that the installation of the new boiler had been commissioned, the court considered that suggestion to be fanciful.
The court concluded that, in the light of the sustained and serious way in which the conduct of the incumbent and the PCC had fallen short of what the faculty system required of them, some sanction was appropriate. Subject to the views of the DAC, the court proposed to make an excluded matters order under S78(3) of the 2018 Measure, depriving the parish of the benefit of any List B authorisations for a period of two years.
In Re St Mary the Virgin, Stevington [2024] ECC StA 1 the petitioner sought a confirmatory faculty for the removal and replacement of an extremely rare and important Anglo-Saxon window head within a Grade I-listed church. The works in question had been carried out, on the basis of List B approval, as part of wide-ranging repair works identified as necessary in the church’s quinquennial inspection report. “It should have been apparent that the proposed works to the window head would go far beyond what could properly be permitted in that way”. The DAC did not oppose the grant of a confirmatory faculty; but the Diocesan Archaeological Advisor had advised separately that a replacement more closely reflecting the original shape of the window head should be ordered. The court, of its own motion, considered the possibility of making a restoration order under S72 of the 2018 Measure.
The court was satisfied that the deeply regrettable, and inexcusable, failure to identify, and to act upon, the need for care and specialist advice was the result of inadvertence, rather than a deliberate desire to contravene the law, or to subvert due process. It was therefore unlikely that the replacement that had taken place would have received faculty permission had this been applied for prospectively.
The court noted that the option of simply dismissing the petition would have the effect of neither legitimising the unlawful works, nor compelling their reversal. The court agreed that this was rarely a sensible solution. A restoration order was likely to be a necessary corollary of the refusal of a confirmatory faculty; and the practicalities of such an order should also be considered. Whilst “strongly deprecating the shortcomings in the processes that have been involved leading to the unlawful works”, the court decided – by the barest of margins – to grant the confirmatory faculty sought, on condition that any future replacement of the new stonework should be based as closely as possible on records of the lost original piece.
The court also indicated that it would be inappropriate for the church to have any proposals considered under List B for a period of 12 months; and it reserved the right to make a formal excluded matters order in the event of any deviation from this approach.
In the instant case Re St. Mary-le-Moor Cadmore End , Hodge Ch. stated [emphasis added]:
“[22]. In my judgment, the court should not make an excluded matters order merely in order to express the court’s disapproval of the way in which a parish has proceeded in the past. The making of such an order is not intended to operate simply by way of sanction for past misbehaviour. The making of such an order should be related to a past misuse or abuse of the List A or List B system…
The parish’s subsequent explanation of how this abuse of the List B process had come about was neither full nor frank. Two at least of the petitioners had been fully aware of what had been going on; yet even now they have not explained themselves fully in response to the court’s queries. In these circumstances, I am satisfied that there are special circumstances affecting this parish and church which justify me in making an excluded matters order under s. 78(3) of the 2018 Measure. That order will provide that for the period of two years from the date of this order, any matter specified in List B of the FJR may not be undertaken without a faculty, even though it is a matter that is specified by virtue of section 77(1).
Comment
A recent post summarised the sanctions available to a consistory court in circumstances such as this. Since all of the petitioners were lay persons, recourse to the the archdeacon as in Re St. Mary Doverdale [2025] ECC Wor 1 is unavailable[5], although as officers of the bishop, the two churchwardens are subject to S10 Churchwarden’s Measure 2001.
[1] At [15], the Chancellor cited an article in the Church Times (£) by the Revd Deiniol Heywood (a member of the Oxford DAC, and an Assistant Archdeacon of Buckingham) Parishes should cherish church buildings officers’, (12 June 2026), which examines the importance of the ‘ecclesiastical exemption’ from the requirement of obtaining listed building consent for works to church buildings.
[2] Also Rule 3.6 of The Faculty Jurisdiction Rules 2015, as amended.
[3] See also 6 Ecc LJ 349 (in the Salisbury Consistory Court), 27 Ecc LJ 143 (in the St Albans Consistory Court), and our links to these judgments, here.
[4] Quite correctly, the parish received acknowledgments of the letter to the Bishop of Salisbury but no substantive response. By contrast, the letter from the local Member of Parliament, presumed to be instigated by “someone connected to the parish”, asking the Chancellor to take a particular approach in his considerations, was deemed “entirely inappropriate”; however, no regard was paid to the letter [29, 30], again quite correctly.
[5] However, Summers Ch. noted: “What disciplinary steps, if any, should follow, is entirely a matter for the diocesan authorities to consider”[at 30].