In 2016 we posted Flood damage and the faculty jurisdiction in which the Salisbury consistory court considered options for post-flood remediation, Re St. Mary Charminster [2016] ECC Sal 1. The recent determination Re St. Mary the Virgin Beachamwell [2026] ECC Ely 1 concerned a faculty petition for another “post-disaster” restoration of a church following a devastating fire in February 2022. In both cases, the parish was faced with a tabula rasa from which restoration works could be planned, albeit within constraints from the insurers, and as such these differ from most considerations of reordering.
Re St. Mary Charminster
The church is situated in an area which is prone to floods, and the planning for repairs was made on the expectation of future water damage. The church had been flooded six occasions since 1937, most recently in January and February 2014. It was proposed to replace the wood block flooring with stone laid over insulation and with underfloor heating, but substantially different solutions were put forward by the architect for the PCC and those on the Diocesan Advisory Committee. After considering conflicting technical advice of the architects and that from a Chartered Civil Engineer, the Chancellor granted a faculty for the works as proposed by the church. Wiggs Ch. noted:
“[23]. At the December 2014 meeting I observed that I was faced with two views, both from highly experienced sources, both put forward in the utmost good faith. On the one hand the church architect could only support closed cell insulation whereas the DAC architects were strongly opposed and preferred open cell. I also observed that because of the difficulty of the problem no-one could be absolutely sure that they were putting forward the correct solution”.
Re St. Mary the Virgin Beachamwell
By way of contrast, in St. Mary the Virgin Beachamwell – “a rare and possibly uniquely small Grade I round‑tower church” – there were a number of anonymous objections in addition to submissions by the amenity bodies and on behalf of the PCC. Leonard Ch. observed:
“[6] It is perhaps unusual that it is the objectors rather than the Petitioners who are seeking to make use of what is essentially a blank canvas to make alterations which may offend against the Duffield principles”.
[8] There is no doubt that the proposed scheme for the restoration has gone through a number of twists and turns which I do not find in the least surprising when there has been so much to consider and so much time for further ideas to come forth, particularly with the assistance of input from the DAC, the amenity societies and the architect instructed on the project”.
In addition to the objections from six unnamed individuals, there was a 10-page document which was assumed to have come from a seventh objector[2]. As is common practice in the consistory courts, these unnamed objectors were assured that the Chancellor had “read each of their letters of objection and had taken what they have written into account in coming to [their] conclusion”. However, he noted:
[14] …It is clear to me that there has been a great deal of personal rancour expressed in the various documents of objection, which has had to be met by the PCC and the petitioners in response. Each side will blame the other for the tone of the debate and that is not something that I seek to address other than to suggest that it is the sort of behaviour which should not pervade a Christian community.
In his assessment of the proposals under the ‘Duffield’ principles, Leonard Ch. considered the various issues which had been raised by the objectors, [14(a) to (l)], including inter alia: accessibility, provision of a toilet, paths, seating, and the font’s location. In addition he also noted In Re St John the Baptist, Penshurst where the court referred to the tension which frequently exists between on the one hand conservation of what is best in our heritage and on the other hand the requirements, or claimed requirements, of present day worship and mission.
Submissions on behalf of the PCC were drafted by Gregory Jones KC “an experienced ecclesiastical lawyer and Chancellor”; his report addressing the issues raised by the amenity bodies and the objectors is summarized in detail in [16] to [35], and edited extracts are reproduced, inset below. In particular, Jones KC relied upon “Changing Churches: A Practical Guide to the Faculty System”[1], where it identifies that, although the Measure refers only to worship and mission, it was arguable that these elements of the church encompass, at least, five distinct overlapping elements – worship, fellowship, teaching, service and mission. He also stated:
“[22]. [t]he Court should also give weight to how the works would facilitate the congregation’s worship. Where reasonable adjustments provide effective access outcomes, the Equality Act 2010 does not require intrusive physical works that would damage a listed church and he provides authority for that proposition, in particular the EHRC Code and FirstGroup Plc v Paulley [2017] UKSC 4, (hereinafter “FirstGroup”).
[23]. As to the proposed changes…they are justified because the insurer is funding restoration ‘as was’ in circumstances where the walls did not fall to a statutory ‘rebuild’ height. The PCC has worked throughout to deliver reinstatement consistent with the policy and to return the church to its pre‑fire state…
[25]. The level access is proportionate to St Mary’s size and significance, satisfies the PCC’s evidence‑based priority from community feedback. Importantly it avoids the irreversible penetrations, and footprint loss that a plumbed lavatory would entail.
[26]. As to compliance with the Equality Act…the village hall provides up‑to‑date lavatories, including a spacious accessible WC with baby‑changing facilities, which are always open when the church is in use under an updated Memorandum of Understanding. This is a lawful and effective reasonable adjustment under the EHRC Services Code and FirstGroup.
[28]. …St Mary’s is a very small Grade I Saxo‑Norman round‑tower church with little floor space; an accessible lavatory would “consume” the tower base, impede tower access and remove essential storage.
[29]. Achieving water supply and foul drainage in a church with no historic mains water, rainwater‑only soakaway, and no deep foundations requires new penetrations through/under medieval fabric and ground—bringing irreversible harm and archaeological risk.
[30] …Historic England’s guidance is clear: where improved access cannot be achieved without unacceptable loss of fabric equivalent outcomes may be delivered by other means which is what the PCC’s plan achieves.
[31]. The insurer has a duty to fund restoration and provision of the lavatory is betterment and outside the policy’s core scope. It is accepted that this could be done separately at a cost to the PCC and therefore the church, but such funds as are available are being devoted to a level entrance.
[32]. In FirstGroup the Supreme Court held that the Equality Act duty is to take “reasonable steps”, not to guarantee an ideal or preferred outcome irrespective of context. Reasonableness is contextual; it turns on practicability, cost, disruption, resources, impacts on others and the availability of alternative means; and it must be assessed alongside other legal duties, which in this case would be heritage protection.
[33]. …applying FirstGroup, the PCC has met the Equality Act duty through reasonable adjustments; insisting on a new internal lavatory would exceed what is reasonable in light of heritage law, practicality, and effective alternative provision.
[34]. The EHRC Statutory Code of Practice (Services, Public Functions and Associations) reinforces, consistently with FirstGroup, that the Equality Act duty is to take reasonable steps, assessed in light of practicability, cost, disruption, the organisation’s resources, and the availability of alternative measures. It also identifies that the duty is anticipatory, applies to disabled people as a class, and may be discharged through policies and practices, not only structural works. The EHRC Code supports the PCC’s conclusion that the Equality Act duty is fully met without an internal lavatory, and that the PCC’s level access and nearby accessible WC provision constitutes a lawful, proportionate, and heritage‑compatible reasonable‑adjustments strategy.
[35]. Historic England’s guidance on Building Regulations & Historic Buildings confirms existing buildings are not generally required to meet newer Building Regulation standards unless specific triggers, such as material alteration or change of use arise…there is no duty to retrofit lavatories into historic churches.
Decision
The Chancellor considered whether the petitioners should be required to issue a new public notice because of the changes they have made at a late stage to the faculty application; he decided it was not required, in part because it is clear that both the objectors and supporters seemed to know of the changes and because of the conditions he intended to impose of the grant of the faculty[36].
The court accepted the decision of the PCC not to install an internal lavatory, finding that this was justified by the church’s exceptional historic significance, limited space, practical constraints, and the availability of accessible facilities in the nearby village hall[39]. The Chancellor rejected arguments that a toilet was legally required under equality or health and safety legislation[41]. However, the court held that if the village hall facilities were to be relied upon, a wheelchair-accessible path between the church and village hall was necessary[42].
The proposal to level the church floor was approved[43], while concerns remained about the proposed location of the font, requiring further consultation. The restoration using pews, replacement memorial windows, and other reinstatement works was supported. A faculty was granted subject to conditions, including provision of the accessible path and further consideration of drainage pipes and font placement[49].
Reference
[1] Mynors C, Changing Churches: A Practical Guide to the Faculty System, Bloomsbury, 2016.