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CHURCH PLANNING LAW

There are 5 denominations of churches that have special powers to determine some planning application on their own property they are:

• Church of England
• Methodist Church
• United Reformed Church
• Roman Catholic Church
• Baptist Union of Great Britain

It is complex issue as not all churches of these denominations come within the powers, and other church property on some specific sites that are not strictly speaking included. In addition cathedrals also have special powers. In as far as phone masts are concerned the most well publicised is the Church of England, who commissioned its own investigation, and has its own set of guidelines, with thousands of installations being hidden within church spires, as well as within ornate shrouds disguised as normal church paraphernalia, a good example of this is the Cross on the Top of Guidford Cathedral.

Section 60(1) and (2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) provides that ecclesiastical buildings which are for the time being used for ecclesiastical purposes are not subject to sections 3, 4, 7 to 9, 47, 54 and 59 of the Act.These relate to listed building control, including building preservation notices, restrictions on works of demolition, alteration or extension, compulsory acquisition of buildings in need of repair, urgent preservation works by a local authority, the Historic Buildings and Monuments Commission for England and the Secretary of State, and offences in relation to intentional damage. Section 75 of the Act provides that ecclesiastical buildings which are for the time being used for ecclesiastical purposes are not subject to section 74 of the Act which relates to the control of demolition of buildings in a conservation area. These exemptions are commonly collectively referred to as ecclesiastical exemption.

Section 8 of Planning Policy Guidance Note 15 (PPG15) Planning and the Historic Environment, which sets out the provisions relating to Ecclesiastical buildings in use for Ecclesiastical purposes and listed building and conservation area control, which in most cases means they are excempt. Whilst there is provision for consultation with the congregation, there is no specific process for consultation with the public, albeit that there should be a notice placed in the local papers, and the local planning authority should be given 28 days to comment. There are a number of specific rules that relate to control of development on Church of England property known as Measures, these and other provisions are listed below.

The Church of England processes must be applied even if the development also requires an application to the local planning authority. So this information is important for all applications to site masts on Church of England property. There is less known about the processes of other denominations, such as the Catholic Church.

The decision by a parish to agree to a phone company's request to site a mast on their church is taken by the Vicar and the local Parochial Church Council (PCC). They are independent of the Archbishop of Canterbury, but do have central guidelines as suggestions. But ultimately they are the decision making body.

As a consequence of Section 1 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 "Any person or body carrying out functions of care and conservation under this Measure or under any other enactment or rule of law relating to churches shall have due regard to the role of a church as a local centre of worship and mission." That is quite important in how residents word their representations to the various church bodies.

Chancellor Cage QC (equivelant to a a judge) said in relation to an application to site a telecommunication mast in a church spire - All Saints, Harborough Magna [1992] 4 All ER 948 "...... in general it is my view that a faculty for use if a church for secular purposes only should be granted only in rare and

exceptional circumstances. In cases such as this, each one must be considered on its merits. Although I shall give some general guidance, I recommend that each parish looks at any individual case very carefully before deciding whether or not to present such a petition"
. And Chancellor Hill in his 'General Directions Concerning Churches and Churchyards' (April 2001) said:- "Before granting any faculty, however, the Consistory Court will need to be satisfied on cogent and compelling evidence from the parish, that the installation will not pose a danger to health or well-being of those using the church or other property in the immidiate vicinity". When giving this advise, and in the majority of cases since, the decision makers did not have the benefit of the Dutch Govevernment Report, which specifically sets out that there is a link to ill health and the well-being of residents from 3G masts. Note from the above that, the emphasise is on the supporters of the application demonstrating that there is NO cogent risk.

From the various judgments though it seems that the Consistory Courts are taking a tougher line on proving a risk in that they are saying that objectors should produce expert evidence to support their case that health concerns are genuine. As opposed to the secular view that it is the state of mind, or concern of residents that is important. However, it is comforting to see the words well-being which could be linked to fear or perception of an ill-health effect. This is set out by His Honour Judge Grenfell in the joint case of St Magaret Hawes and Holy Trinity Knaresborough ".....it is for the petitioners to satisfy the Court that the grant of faculty will not give rise to a real, as opposed to a fanciful, risk to human health. In my judgment a real risk is prperly described as being measurable or, put another way, significant". That of course is not very helpful, but illustrates the problems to be overcome in persuading churches of the health risks.

The Church of England planning process is conducted in the main by the 'DAC'(Diocesan Advisory Committee), their functions are set out in Schedule 2 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, for ease of reference we set out the relevant sections below:-

Functions of Diocesan Advisory Committee

1. The functions of a Diocesan Advisory Committee shall be-
(a) to act as an advisory body on matters affecting places of worship in the diocese and, in particular, to give advice when requested by any of the persons specified in paragraph 2 below on matters relating to-
(i) the grant of faculties;
(ii) the architecture, archaeology, art and history of places of worship;
(iii)the use, care, planning, design and redundancy of places of worship;
(iv) the use and care of the contents of such places;
(v) the use and care of churchyards and burial grounds;

(b) to review and assess the degree of risk to materials, or of loss to archaeological or historic remains or records, arising from any proposals relating to the conservation, repair or alteration of places of worship, churchyards and burial grounds and the contents of such places;

(c) to develop and maintain a repository of records relating to the conservation, repair and alteration of places of worship, churchyards and burial grounds and other material (including inspection reports, inventories, technical information and photographs) relating to the work of the committee;

(d) to issue guidance for the preparation and storage of such records;

(e) to make recommendations as to the circumstances when the preparation of such a record should be made a condition of a faculty;

(f) to take action to encourage the care and appreciation of places of worship, churchyards and burial grounds and the contents of such places, and for that purpose to publicise methods of conservation, repair, construction, adaptation and re-development;

(g) to perform such other functions as may be assigned to the committee by any enactment, by any Canon of the Church of England or by resolution of the diocesan synod or as the committee may be requested to perform by the bishop or chancellor of the diocese.

The Governments main guidance is set out in Section 8 of Planning Policy guidance Note 15 'Planning and the Historic Environment'. The Church of England has its own best practice which we reproduce below.

Top of Page

Church of England Best Practice Commitment for the Siting of Mobile Phone Base Stations

To take a precautionary approach

The Archbishops' Council of the Church of England takes the view that it is responsible to offer parishes the opportunity of deriving income for mission and maintenance from the hosting of out-of-sight telecommunications aerials providing the arrangements are consistent with the precautionary recommendations of the Government-commissioned independent scientific report by Sir William Stewart Mobile Phones and Health, 2000 (www.IEGMP.org.uk).

In line with the recommendation of the Stewart Report, the standard Licence will require the regular monitoring of emission levels in and around the church. A periodic report will be made to the incumbent and parochial church council.

To proceed only through rigorous controls

To protect the environment and our built heritage, all installations will have to be carefully carried out within the rigorous strictures of the Church of England's Faculty Jurisdiction system, under the guidance of the parish's inspecting architect/surveyor and other appropriate appointed professional advisers. Each installation will require permission from the Chancellor of the Diocese, who will be advised by the Diocesan Advisory Committee. Aerials will be required to be out of sight or otherwise unobtrusive.

To hold meaningful consultation

Local consultation will be needed before the matter comes to the Chancellor for a decision. We will provide consultation material and signpost other sources to facilitate this, and will encourage consultations that embrace the local community based on up to date information.

Sometimes a diocese can have a policy against masts - Sheffield does, Wakefield does not It varies considerably so check out the local policy. Initially lobby your Vicar, but at the same time lobby his Bishop. Get your MP and Councillors (as well as all the parishioners) to do the same. The church legal route is through the Diocesan Registrar. You obtain formal complaint forms from this officer, however there are cut off dates. The details of the names and addresses of the Registrar and Chancellor should be publicised on the church noticeboard or in the church. You could ask the Vicar or get them from a copy of the Planning Application, as the church and phone company are joint petitioners for planning permission. The decision to approve changes to the structure of the church are judged by the Worshipful Chancellor. Formal protestors, who have completed the official objection forms, have the right to attend the hearing. If the Chancellor turns the application down then the permission is effectively refused.

Set out below is Section 8 of Planning Policy Guidance Note 15 (PPG15) (PDF file) which is the main Government policy document on planning and development on church property.

Churches and the Ecclesiastical Exemption

8.1 Ecclesiastical buildings are fully subject to planning control, but ecclesiastical buildings which are for the time being used for ecclesiastical purposes are exempt from listed building and conservation area controls, except in so far as the Secretary of State provides otherwise by Order under section 60(5) and 75(7) of the Act. Ecclesiastical exemption does not apply to the residences of ministers of religion (section 60(3)).

8.2 The context of the exemption is provided by an undertaking by the Church of England that its historic buildings would be subject to a separate Church system of control which took account of the historical and architectural importance of churches. This system, known as faculty jurisdiction, has developed over time, in particular in a series of ecclesiastical measures passed by the General Synod and approved by Parliament, and in subordinate arrangements approved by the General Synod; a separate system covers Church of England cathedrals*. The exemption has, however, extended to ecclesiastical buildings of all denominations, not just those of the Church of England.

* The Faculty Jurisdiction Measure 1964, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, the Faculty Jurisdiction Rules 1992, and the Faculty Jurisdiction (Injunctions and Restoration Orders) Rules 1992; and, for cathedrals, the Care of Cathedrals Measure 1990, the Care of Cathedrals (Supplementary Provisions) Measure 1994, and the Care of Cathedrals Rules 1990.

8.3 Following public consultation in 1992 the Secretary of State, in conjunction with the Secretary of State for Wales, announced that an Order would be made to provide that the exemption would in future apply only to the Church of England and to other denominations and faiths which set up acceptable internal systems of control embodying the principles set out in the Government's code of practice. The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994 has now been made and is due to come into force on 1 October 1994.

Code of practice for denominations' internal control systems

8.4 The Government's code comprises the following points:

1. proposals for relevant works** should be submitted by the local congregation or minister for the approval of a body independent of them;

   ** ie. works for the demolition of a listed ecclesiastical building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest; or works for the demolition of an unlisted ecclesiastical building in a conservation area

2. that body should include, or have arrangements for obtaining advice from, people with expert knowledge of historic church buildings;
3. the decision-making process should provide for:
   • a. consultation with the local planning authority, English Heritage and national amenity societies, allowing them (except in cases of emergency) 28 days to comment;
   • b. the display for the same 28-day period of a notice in a prominent position outside the building describing the proposed works and similarly inviting comments;
   • c. the publication of a similar notice in a local newspaper;
   • d. in cases of demolition, notification of the Royal Commission on the Historical Monuments of England (see also paragraph 3.22).
4. the decision-making body should be required, in considering proposals submitted to it, to take into account any representations made and, along with other factors, the desirability of preserving historic church buildings and the importance of protecting features of architectural merit and historic interest (including fixtures - see paragraphs 3.13 and 8.11);
5. there should be a clear and fair procedure for settling all disputes between the local congregation or minister and the decision-making body as to whether proposals should proceed;
6. there should be procedures for dealing with any breach of the control system, including provision for reinstatement where works to historic church buildings have been carried out without consent;
7. there should be arrangements for recording how the above procedures were implemented in each case and the nature of the decision taken; for making such records available for public inspection during reasonable hours; and for notifying the decision to the above consultees;
8. there should be arrangements to ensure the proper maintenance of historic church buildings including thorough inspections on a fixed cycle of not more than five years. So far as a denomination's circumstances permit, these points should be incorporated in legally binding procedures.

8.5 In considering proposals for such works, any effects on the archaeological importance of the church or archaeological remains existing within it or its curtilage should be taken into account along with other relevant factors. Where works of repair or alteration are to be carried out which would affect the fabric of listed churches or churches in conservation areas, denominations should attach any necessary conditions for proper recording in accordance with the principles set out in paragraphs 3.22-3.24 and, in respect of archaeological remains, in paragraph 2.15.

Future scope of the exemption

8.6 For those denominations and faiths which retain the exemption, its scope is reduced by the Order to the following:

• - any church building;
• - any object or structure within a church building;
• - any object or structure fixed to the exterior of a church building, unless the object or structure is itself a listed building;
• - any object or structure within the curtilage of a church building which, although not fixed to that building, forms part of the land, unless the object or structure is itself a listed building.

8.7 The Order provides continued exemption on this reduced basis (to the extent specified in it) for the Church of England and also for the Church in Wales, the Roman Catholic Church, the Methodist Church, the Baptist Union of Great Britain, the Baptist Union of Wales and the United Reformed Church. Ecclesiastical buildings of these denominations are covered by acceptable internal systems of control broadly conforming to the principles in the Government's code of practice. It is intended to monitor these arrangements and review them after two years. (Further Orders can be made if any other denominations or faiths are subsequently accepted as qualifying.)

8.8 Details of these denominations' arrangements will be published in a separate leaflet circulated to all local authorities. This will include the special arrangements made for Church of England cathedrals where all buildings, objects or structures within an area designated by the Secretary of State for National Heritage, after consulting the Cathedrals Fabric Commission for England, and places of worship and unlisted tombstones and other monuments elsewhere within the cathedral precinct, are exempt. A list of addresses for the denominations concerned, and related bodies, is included in Annex A.

8.9 The Order also provides continued exemption for ecclesiastical buildings of these denominations in various categories where insufficient information is currently available (eg. buildings of Church of England 'peculiars', viz those outside the faculty jurisdiction system; Church of England and Roman Catholic religious communities; and school and other institutional chapels). The intention is that by the end of a limited period all buildings within these categories will either become subject to the normal local authority controls or be included within the scope of an exempted denomination's internal system of control. The bodies concerned have been notified of the order and invited to consider what future arrangements would be appropriate for them.

Exercise of controls over non-exempt church buildings

8.10 For denominations, faiths and independent congregations not listed in the Order, their places of worship will be fully subject to listed building and conservation area control from 1 October 1994. For non-exempt denominations works begun or contracted for before 1 October 1994 are exempt. Conservation area control will extend to memorials, monuments and tombstones of whatever size erected prior to 1925, in order to bring authorities' controls into alignment with those which will be operated by the denominations listed in the Order; this will be done by a direction made under section 75(2) by the Secretary of State.

8.11 Much of the architectural character and historic interest of places of worship lies in the arrangement and furnishing of their interiors. The great majority of furnishings are likely to be fixed and so form part of the listed building (paragraphs 3.30-3.32), and their architectural coherence and quality will need to be taken into account when considering any proposals for re-ordering. It is probable that some changes have taken place in the past, and before considering further alterations the chronology and completeness of the existing arrangements should be carefully assessed. It is particularly important to identify, and where possible retain, the spatial arrangements and fixtures that belong to the principal period of building. When considering proposals for creating cleared areas for multi-purpose use, the possibility of making fixed seating capable of being dismantled or moved should be investigated. Proper recording in accordance with the principles set out in paragraphs 3.22-3.24 and, in respect of archaeological remains, paragraph 2.15, should always be considered. Where extensive re-ordering takes place, some examples of the replaced furnishings should be retained wherever possible and, where appropriate, materials such as panelling should be re-used within the building or offered for re-use in a similar context, rather than destroyed.

8.12 In considering applications for consent relating to buildings used for worship authorities are advised that, in addition to the general considerations set out in section 3, the following matters (mainly relating to interiors) should be given due weight as material considerations, viz whether the changes proposed:

• i. are necessitated by a change in the worship needs of the congregation;
• ii. are necessitated by an increase or a reduction in congregation size;
• iii. are directed at accommodating other activities within the building to help ensure its continued viability primarily as a place of worship;
• iv. would involve substantial structural changes, eg subdivision of important existing spaces;
• v. would involve the removal or destruction of important fixtures and fittings, or are more in the nature of a reversible re-ordering of internal features;
• vi. would involve disturbance of archaeologically important remains below ground.

8.13 English Heritage has published guidance entitled New Works to Historic Churches which local planning authorities may find useful in respect of buildings of all denominations. The Church of England has published a Code of Practice on the Care of Churches and Ecclesiastical Jurisdiction Measure which gives detailed guidance on many of the procedures to be followed and recommended practice under its own system of control (other than for cathedrals).

8.14 The Secretary of State will continue to have the power to bring within normal listed building or conservation area controls by a further Order any individual ecclesiastical building where it seems likely that potentially damaging works will be carried out without the necessary authorisation having been obtained under an exempt denomination's procedures, and without legal sanctions being available to the denomination internally.

Buildings no longer in ecclesiastical use

8.15 In the case of the Church of England total or partial demolitions of a redundant building in pursuance of a pastoral or redundancy scheme under the Pastoral Measure 1983 are exempt from listed building control by virtue of section 60(7) of the Act, and from conservation area control by a direction under section 75(2). The Church Commissioners have, however, agreed to ask the Secretary of State for the Environment whether he wishes to hold a non-statutory public local inquiry into any such proposal for total or partial demolition (which would otherwise fall within the scope of those controls) where English Heritage, the Advisory Board for Redundant Churches, the local planning authority or a national amenity society have lodged reasoned objections. The Church Commissioners have also undertaken to accept a recommendation from the Secretary of State for the Environment following such an inquiry that the church is of sufficient importance to be vested in the Churches Conservation Trust (formerly the Redundant Churches Fund) or, in cases where the recommendation was not that the building should go to the Trust, to make further efforts to find an alternative use and to engage in further consultation with the Secretary of State for the Environment before using the Pastoral Measure powers to demolish. In considering what recommendation he will make, following a non-statutory inquiry, the Secretary of State for the Environment will take into account the financial implications of retaining a church building as well as the architectural and historic interest of the church and other planning and social factors, and will consult the Secretary of State for National Heritage.

8.16 Total demolition by faculty is not exempt but would require listed building and conservation area consent in the normal way, as would total demolition by exempt denominations other than the Church of England. This is because the exemption only applies to a building in ecclesiastical use, and the view of the Courts has been that a building cannot be considered to be in such use if it is being totally demolished. Denominations have been asked to notify the local authority concerned when a church building covered by the exemption ceases to be used primarily for worship. Where total demolition is proposed, denominations may find it useful, before applying to the local planning authority for consent, to see that the proposal has been scrutinised through their normal procedures where these apply.

8.17 Except as mentioned above, Church of England buildings which are no longer in regular ecclesiastical use are fully subject to the normal listed building and conservation area controls once a declaration of redundancy under the Pastoral Measure comes into operation. These controls also cover buildings vested in the Churches Conservation Trust, in most of which church services are still held on an occasional basis. During the waiting period between a declaration of redundancy under the Pastoral Measure and the coming into operation of a redundancy scheme authorities are advised to discuss the application of the controls with the diocesan or parish bodies concerned where the authority is considering taking action under the urgent works provisions of section 54 of the Act or where the diocesan board of finance considers it necessary to remove fixtures for safe keeping under section 49(2) of the Pastoral Measure.

8.18 Many churches, of all denominations, when no longer required for worship may nevertheless have a continuing and valuable contribution to make to the community in terms of architecture, art, social and local or national history. They often occupy central and convenient positions in villages and towns and can, therefore, offer suitable venues for a variety of social and community purposes, such as meetings, concerts, exhibitions, indoor sports and evening classes. Even where the building itself is not worthy of individual listing as of architectural or historic interest, it may nevertheless be a familiar and important feature of an urban or rural landscape - while a surrounding churchyard may possess considerable ecological interest. It is important that once a church becomes redundant no unnecessary delay should occur in finding an alternative use for it. Conversion to another use which preserves the most interesting elements, internal and external, is to be preferred to demolition.

If this is not your issue, but you are a member of the church (any church) please consider writing to the controlling body explaining your worries and fears and let them know you do not want mobile phone masts to be sited in places of worship. Let them know that the siting of masts on church schools is totally unacceptable.

Church of England National Aerial Agreement

Religious Denominations Exempted

General Synod of the Church Of England
Church House
Great Smith Street
London
SW1P 3NZ

Methodist Church
Property Division
Central Buildings
Oldham Street
Manchester
M1 1JQ

United Reformed Church
c/o Towns, Needham and Co, Solicitors
6/8 Albert Road
Levenshulme
Manchester
M19 3PJ

Roman Catholic Church
Catholic Bishops' Conference of England & Wales
Allington House (1st floor)
136/147 Victoria Street
London
SW1E 5LD

Baptist Union of Great Britain
c/o Baptist Union Corporation Ltd
Baptist House
PO Box 44
129 Broadway
Didcot
Oxfordshire
OX11 8RT

Other Relevant Church of England Bodies

Council For The Care Of Churches

Cathedrals Fabric Commission for England

Church Commissioners for England

Advisory Board for Redundant Churches

Churches Conservation Trust

Historic Chapels Trust

• Congregation boycott church services after mast installed
• Church Council agrees to let churches site masts

The Church of England Newspaper - Tel: 020 7878 1545 Fax: 020 7216 6410

Church Times - Tel: 020 7359 4570 Fax: 020 7226 3073

Christian Times - Tel: 01903 602112 Fax 01903 821081

If you are having a problem with a mast application in a church or an existing mast in a church then contact the Christian Herald as they are always interested in covering this issue

Church of England Measures (Legislation)

Christian Ecology Link

Legislation

• The Faculty Jurisdiction Measure 1964
• Care of Cathedrals Measure 1990
• Care of Cathedrals Measure 1990 (No.2)
• Care of Cathedrals Rules 1990
• Planning (Listed Buildings and Conservation Areas) Act 1990
• Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No. 1)
• Care of Cathedrals (Supplementary Provisions) Measure 1994
• The Faculty Jurisdiction (Injunctions and Restorations Orders) Rules 1992
• The Faculty Jurisdiction (Appeals) Rules 1998
• The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994
• Planning Policy Guidance Note 15 (PPG15)
• The Faculty Jurisdiction Rules 2000

Other documents

• Code of Practice on the Care of Churches and Ecclesiastical Jurisdiction Measure (General Synod of the Church of England, 1993)

Consistory Court Cases

The following is taken from the Ecclesiastical Law Societies WEB site

Middle Temple Library

The Librarian writes:
?All members of the ELS are welcome to use the collection during normal library opening hours - generally from 9.00 until 20.00 Monday to Thursday and from 9.00 until 18.30 Fridays. We close for the first two weeks of August and open for the remainder of August and September between 9.00 and 17.30.  We would appreciate a ?phone call to let us know when someone is coming (020 7427 4830).

We offer a distance service via fax or post for photocopies of judgments. We will fax a photocopy declaration form, which must be signed and filled in with details of photocopying required.  When that is faxed back to us we can photocopy and fax or post judgments at a cost of:-

• By post - 25 p per sheet
• Fax - inner London £1.00 per sheet
• Fax - outer London 60p per sheet
• Fax - provinces 70p per sheet
• Fax - overseas £1.00 per sheet

There is an additional administration charge of £4.00 and £2.00 for each subsequent item  per transaction plus VAT  An invoice with VAT charged separately will  be sent with the copies.

Users of the library are able to photocopy items themselves  on one of the library's three photocopiers at a cost of 10p per sheet.?

Planning Sanity has a limited number of judgements in our own library of mast related cases, contact us for details.

Links

• ECCLESIASTICAL LAW SOCIETY
• Church of England Legal Services WEB site
• Centre for Law and Religion
• A useful essay setting out how Canon Law works in the various denominations

© Planning Sanity - June 2004 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgement of Planning Sanity is given)