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THE FACULTY JURISDICTION

Church

All consecrated buildings and burial grounds are subject to the jurisdiction of the Diocesan Bishop. The Bishop does not exercise this jurisdiction personally, but through the Chancellor of the Diocese, who is one of the two legal officers of the diocese, the other being the Diocesan Registrar.

Most of the Anglican church buildings in England are listed buildings, that is to say, the local authorities concerned have listed them as being of architectural or historic interest. The consequence of the listing is that where a secular building is listed, it is necessary to obtain Listed Building Consent from the local planning authority before any alterations can be made. However, Anglican churches in use are exempt from the requirement for Listed Building Consent, because of the control which the Church of England exercises through the Faculty Jurisdiction. This is known as the "ecclesiastical exemption", but it does not exempt a Parochial Church Council from the need to apply also for Planning Permission and/or Building Regulations Approval in a case where Planning Permission and/or Building Regulations Approval would normally be required, for example, in relation to the proposed extension of a church building.

Apart from matters within List A of Schedule 1 of the Faculty Jurisdiction Rules 2015 (as amended by the Faculty Jurisdiction (Amendment) Rules 2019), no alterations may be made to a consecrated building or burial ground without the authority of the relevant Archdeacon for matters within List B. Matters not falling within List A or List B or which are Excluded Matters (see paragraph 3 below) will require a permission called a Faculty before work can commence.

Any memorial or other structure on land within the curtilage of a consecrated church is also subject to the Faculty Jurisdiction (whether the land is consecrated or not), unless the memorial or other structure is itself listed, in which case an application must be made to the planning authority for Listed Building Consent to authorise the alteration or removal of it.

Faculty Jurisdiction Rules 2015 (as amended)

The Faculty Jurisdiction Rules 2015 (as amended) introduced new or amended procedures with effect from 1 April 2020. The most important are:

1. Seeking Advice Prior to Commencement of Proceedings

The Faculty Jurisdiction Rules 2015 (as amended) provide for consultation and advice prior to the start of faculty proceedings. The principle aim is to "frontload" the consultation process, with a view to all consultation taking place prior to the issue of a Notification of Advice by the DAC, i.e., prior to the commencement of faculty proceedings. Under Part 4 of the Rules, the DAC are required to assist and support parishes through the consultation process by ensuring all necessary consultations are completed and, so far as possible, any issues resolved before the DAC issues its Notification of Advice. When a parish consults the DAC on its proposals, the DAC must consider whether it should give the parish initial advice to assist it in relation to its proposals. Whether initial advice is needed will depend on the nature of the particular scheme in hand. In some cases where proposals are of an entirely straightforward nature, or do not involve a listed building, the DAC might take the view that initial advice is not needed and, if the parish has provided what is needed for the DAC to make a recommendation, simply proceed to issue a Notification of Advice. In other cases, for example where proposals are complex or involve making changes to a listed building, the DAC is likely to take the view that it should give initial advice to the parish. The range of matters on which the DAC may give initial advice is not limited but where changes that will have an impact on the significance of a listed building are proposed, the DAC must advise the parish of the need to provide Statements of Significance and Needs. It must also advise the parish of any applicable requirements as to consultation with Historic England, amenity societies, the local planning authority and the Church Buildings Council. The DAC will not issue its Notification of Advice under Part 4 of the Rules until any applicable consultation requirements have been complied with and the DAC has all the information needed for it to give its final advice

It is not necessary for the DAC's advice to be sought in relation to the matters of exhumations or reservation of grave spaces.

2. List A

List A in Schedule 1 of the Rules replaces with a single list for all dioceses the former diocesan "minor matters" lists which each Chancellor used to publish following consultation with the Diocesan Advisory Committee ("DAC"). These are matters which may be undertaken without a Faculty, subject to any condition specified in List A, and without the need for any consultation outside the parish.

The scope of matters in List A has been set deliberately wide in the interests of simplification and removal of unnecessary burdens, and does not include any financial limits.

Although there is no requirement to seek advice in relation to List A works or proposals, it is anticipated that there are likely to be requests for informal advice. Any question as to whether a particular matter is or is not a matter that may be undertaken under List A is to be determined by the Chancellor.

3. List B

List B matters are those which can be undertaken, subject to any condition specified in List B, without a petition (and thus without a Faculty), without formal DAC advice and without the giving of public notice.

The first procedural distinction between List A and List B is that works or proposals in List B can only be undertaken if the Archdeacon has been consulted and has given notice in writing that the matter may be undertaken without a faculty. The second procedural distinction is that where the Archdeacon is consulted on a List B matter, the Archdeacon must seek the advice of the DAC or such of its members or officers as the Archdeacon sees fit before deciding to give notice that it may be undertaken without a Faculty. The third procedural distinction is that the Archdeacon may make the undertaking of the List B matter subject to conditions (specified in the notice in writing) additional to those specified in List B. Such additional conditions are likely to be imposed to reflect the advice the Archdeacon has received when he sought advice.

Again, and for the same reasons as in the case of List A, the scope of matters within List B has been set deliberately wide.

As in the case of List A, any questions as to whether a particular matter is or is not a List B matter which may be undertaken without a Faculty is to be determined by the Chancellor.

It is open to an Archdeacon to decline to give notice that a List B matter can be undertaken without a Faculty. He may consider that it does not fall within List B, or that for some reason it ought to be subject to full Faculty procedures, including formal DAC consultation and the giving of public notice. If so, the Archdeacon may inform the applicants that they may, if they wish, petition the court for a Faculty to authorise the proposal.

DACs will be informed whenever the Archdeacon gives notice in writing that List B works or proposals can be undertaken, because the Archdeacon must send a copy of every such notice not only to the Diocesan Registrar but also to the Secretary of the DAC. The notice must specify the proposals which may be undertaken without Faculty and any additional conditions. It would be disproportionate and contrary to the spirit of List B for the DAC to seek to track the way in which every List B matter is implemented; but the DAC may consider it appropriate to carry out some monitoring, through spot-checks, to enable informed conclusions to be drawn about the effectiveness of the new List B in their diocese.

4. Excluded Matters

A principal safeguard against inappropriate use of the new freedoms in respect of both lists is that no work or proposal can be permitted if it would involve an "Excluded Matter". The eleven categories of Excluded Matters are:

  1. any works which involve alteration to or the extension of a listed building to such an extent as would be likely to affect its character as a building of special architectural or historic interest;
  2. any works which are likely to affect the archaeological importance of a building or any archaeological remains within a building or its curtilage;
  3. any works in respect of all or part of which scheduled monument consent is required under the Ancient Monuments and Archaeological Areas Act 1979;
  4. any works which involve extension, demolition or partial demolition of a building, or the erection of a new building;
  5. any matter which gives rise to a question of law or of doctrine, ritual or ceremonial or which would, if undertaken, affect the legal rights of any person;
  6. the exhumation or other disturbance of human remains;
  7. the reservation of a grave space;
  8. the sale or other disposal of any article of architectural, archaeological, artistic or historic interest;
  9. the sale of any book remaining in or belonging to a parochial library
  10. the introduction of an aumbry or any other receptacle used for the reservation of the sacrament of Holy Communion; or
  11. the introduction of, or the carrying out of any work to, a monument of the kind referred to in section 66 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

5. Additional Matters

The Chancellor may add items to Lists A and/or B by making an "Additional Matters Order" or exclude matters by making an "Excluded Matters Order". There is one current Additional Matters Order and no Excluded Matters Orders for Peterborough Diocese.

The fact that a matter may be undertaken without a Faculty, whether under List A or List B, does not remove that matter from the jurisdiction of the Chancellor. There will be occasions when a petition for a Faculty is sought, notwithstanding that some elements within the proposed or proposals falls within List A and/or List B. That will be appropriate to ensure that the proposed scheme is looked at holistically. And general supervision of the proper application of Lists A and B remains with the Chancellor.

6. Archdeacon's Jurisdiction

As from 1 January 2016 the Archdeacon's jurisdiction no longer operates save in two respects. This is because much of that jurisdiction was replaced by the new List B. Therefore there are no longer any circumstances in which Archdeacons may grant Faculties.

The exceptions are:

  1. Archdeacons have the power to make an order for the removal of an article to a place of safety. A place of safety order must be followed up by the Archdeacon petitioning for a Faculty and the Chancellor must seek the advice of the DAC before determining that petition.
  2. Archdeacons have the power to give a licence authorising a scheme of temporary minor re-ordering of a church for a specified period not exceeding 24 months. A temporary minor re-ordering can include the church's fixtures and fittings (this had hitherto been a matter of legal dispute). The scheme must not involve any material interference with or alteration to the fabric of the church and Archdeacons have power to amend or revoke a licence. Before giving a licence, Archdeacons must seek the advice of the DAC or such of its members or officers as the Archdeacon sees fit (replicating the position under List B).

The Archdeacon does not have power to extend the period of the licence and the re-ordering must either be reinstated or a faculty petition submitted.

7. Documents to be submitted to the DAC prior to petitioning for faculty

Intending applicants must submit the Standard Information in Form 1A (where the applicant is a PCC) or Form 1B (in other cases). In due course applicants must also submit:

  1. relevant designs, plans or photographs;
  2. any advice or other material relating to the environmental implications of the work
  3. any other documents giving particulars of the works or proposals and
  4. relevant correspondence with Historic England, Natural England, amenity societies, the local planning authority and the Church Buildings Council

8. Documents to accompany petition

The application will need to include the DAC Form 2, a copy of the PCC resolution signed by the chair/secretary, copies of the specification and plans or details of the proposed works as described in the petition and advice and materials relating to environmental matters. Also copies of any relevant correspondence received from Historic England, the local planning authority, any national amenity societies, the Church Buildings Council or any other body or person.

9. Listed Buildings

Mention has already been made of the restrictions on use of List A and B powers in respect of listed buildings (above).

10. Consultation

The precondition for consultation with Historic England, amenity societies and the local planning authority has been extended to include any proposals which involve demolition of a listed building. This reflects the amendments made in relation to procedures for the demolition of churches by section 13 of the Church of England (Miscellaneous Provisions) Measure 2014.

11. Trees

Apart from the inclusion of certain tree-related matters in Lists A and B in Schedule 1 to the Faculty Jurisdiction Rules 2015 (as amended), two further matters should be noted.

First, the duty to give guidance in relation to trees now lies with the Church Buildings Council ("CBC") and not with Chancellors. It is to this CBC Guidance that reference is made in the specified conditions to A8 of List A and to B6 in List B.

Second, given that most works to trees will now be covered by the two Lists, there will no longer be a tree-specific form for a Faculty petition relating to works to trees, and the standard Forms 3A (or 3B) should be used in those cases where a Faculty is still required.

Although the duty to give guidance in relation to trees now lies with the CBC, the guidance notes formerly produced by the Chancellor are attached for further information:

Notes for Guidance

12. Notices

The Rules provide that, not later than the day on which the petition is submitted to the Diocesan Registry (or on a later day if the Chancellor so directs) the petitioner must display public notices for a period of at least 28 days at the church. Also, where a petition relates to a Grade I or II* listed church or the exterior of a Grade II listed church or involve demolition affecting the exterior of an unlisted building in a conservation area, notice of the petition should be published on a diocesan web site, giving the date by which objections must be notified to the Diocesan Registrar. The notice must be displayed on a Diocesan website for 21 days. It is therefore very important that, immediately a public notice is put on display at the church, a copy of the notice, as displayed, is sent to the Registrar, so that the Registrar can enter the details on the website, advising people of the last date for objections.

Please see the attached Briefing Note re: the Coronavirus (COVID-19) lockdown.

13. Transitional Provisions

The Faculty Jurisdiction Rules 2015 (unamended) apply to all petitions lodged with the Registry prior to 1 April 2020.

Pending Faculty Petitions

Please use the link below for a list of all current Faculty Petitions which are required to be advertised on a web site:

List of current pending Faculty Petitions

Faculty Forms

Schedule 3 of the Faculty Jurisdiction Rules 2015 (as amended) contains all the current statutory forms. The Rules provide that petitions for exhumation, reservation of graves and in relation to memorials 'must be in the form approved for that purpose by the Chancellor'. In the Diocese of Peterborough there are special forms for these purposes:

Petition for Reservation of a Grave
Petition for Exhumation
Memorial Application Form

The Care of Churches and Ecclesiastical Jurisdiction Measure 1991 and the Faculty Jurisdiction Rules 2015 (as amended) are Crown copyright and are linked to this site in accordance with the terms of Crown Copyright Policy Guidance issued by HMSO. Printed copies of the Measure and the Rules can be obtained from:

The Stationery Office Ltd.
St Crispins
Duke Street
Norwich
NR3 1PD
Tel: 01603 622211
Email: solutions@tso.co.uk

Click on the following topics for further information:

Applying to the Archdeacon for a List B Consent
Applying for a Faculty
Useful Addresses
Diocesan Advisory Committee

When a Faculty application is contested, and the matter goes before the Consistory Court of the Diocese, additional fees will be payable in respect of the court hearing and the preparation work. Please see:

A Guide to Proceedings in Contested Cases
And a booklet prepared by the Ecclesiastical Judges Association:
Guidance on the Award of Costs in Faculty Proceedings
in the Consistory Court

Completion of works authorised by Faculty

Petitioners are reminded to complete and return to the Registrar the Certificate of Completion issued with the Faculty, when the work authorised by the Faculty has been completed. If the Certificate has been mislaid, please email or telephone the Registrar, who will be pleased to send a duplicate copy.

Church Care

For those responsible for the maintenance of church buildings, some useful information can be found at the Church of England's Church Care web site.

Ecclesiastical Judges Complaints Procedure

Anyone wishing to make a complaint against the Chancellor of a Diocese in respect of the performance of his or her duties must follow the procedure set out in the attached Ecclesiastical Judges Complaints Procedure document.

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