18 David Andrew looks at recent developments in legislation governing changes to church buildings. THE ECCLESIASTICAL EXEMPTION The rivalry between Church and State in the Middle Ages is well known. In English history it is most dramatically illustrated by the murder of Thomas a Becket on the instigation of King Henry II in 1170, and in European history by the humiliation of the Emperor Henry IV before Pope Gregory VII at Canossa in 1077. In today's more secular age, the fact that the Church of England retains some of its ancient privileges and indeed operates its own legal system is something of which the public are generally unaware. One aspect of this that in recent years has had a reasonable airing in public is the ecclesiastical exemption from listed building controls. This is in fact enjoyed by all denominations. It is however only the Church of England which operates a comprehensive control over church buildings, their contents and churchyards through diocesan consistory courts presided over by a Chancellor or ecclesiastical judge appointed by the bishops. No alteration can be made to ecclesiastical buildings or land which has been consecrated (or for that matter to unconsecrated land in the curtilage of a church and to most unconsecrated churches) without first obtaining a Faculry from the Chancellor. In former times, this Faculry jurisdiction was not always systematically operated. Anyone who has researched the history of a church and hoped to find a Faculty giving details of the Victorian restoration will know that such Faculties often seem not to exist. This is not simply a failure of the record to survive: much work was done at that rime without Faculty. Dissatisfaction with the way the church had looked after its buildings led to the proposal chat churches should be brought within the scope of che 1913 Ancient Monuments Act. This was resisted by the church which promised that the situation would improve. As a result, "any ecclesiastical building for the time being used for ecclesiastical purposes" was specifically exempted from the Act. Another consequence was the establishment in many diocese of Diocesan Advisory Committees (DACs) to give expert advice co the Chancellor on the aesthetic and historical aspects of petitions for Faculty. These DACs became statutory in 1938. When listed building legislation was introduced in the 1971 Town and Country Planning Act, the privilege chat had been won on the earlier occasion was maintained in the form of an exemption from listed building controls. This privilege has been jealously guarded since, and is still intact despite a major review in the 1980s. This was prompted to a large extent by the introduction of sta-te aid for churches which raised the question of whether the Church's controls were functioning adequately. A commission was appointed by the Church to examine che Faculty Jurisdiction, and its report Continuing Care of Churches and Cathedrals was published in 1984. In the same year, che Department of the Environment issued a consultative paper on the ecclesiastical exemption which led to an agreement, announced in 1986, being made with che Church of England and the non-Anglican churches represented on the Churches Main Committee. These initiatives caused the Church of England to approve a new Care of Churches Measure in 1991 which will be implemented in 1993. This strengthens the membership of the DACs, which muse include representatives of the local planning authorities, amenity societies and English Heritage as well as of the diocesan synod; increases the range of persons allowed to lodge an official objection to a Faculty to include local planning authorities and amenity societies; and in general reinforces the power and authority of the DACs. (But it also allows greater scope for more routine works to be carried out under an Archdeacon's Certificate.) Another related result has been the Care of Cathedrals Measure 1990, which has set up a central Cathedral Fabric Commission and requires all cathedrals to have Fabric Advisory Committees which function muc,1 like DACs. At the same time, state funding has now been extended to cathedrals subsequent to a report in 1987 of the House of Commons Environment Select Committee. As to the non-Anglican denominations, their position has given rise to unease, as they do not have the same comprehensive controls as che Church of England. This has to some extend been rectified by the 1986 agreement, which required that listed building consent be obtained for the demolition of a church, except in the case of a Church of England building demolished under a pastoral or redundancy scheme made under the 1983 Pastoral Measure, and for the partial demolition of a non-Anglican church. Continuing concern about nonAnglican buildings led to further consultation papers in 1989 and 1992. The current position is chat che government proposes to "to remove the exemption from all ecclesiastical buildings except those of denominations which can demonstrate that they have in place the necessary administrative mechanisms" to ensure that they can operate and enforce controls comparable to those chat exist in the secular system. The government already has this power as, under the 1986 Housing and Planning Act, it can issue orders limiting the scope of the exemption. Although intact, it will be clear that the exemption has been eroded through this succession of reviews. There is another and more significant way in which it has been eroded. Increasingly, all works at churches need to have English Herit.age approval. This has come about in two ways. First, English Heritage has acquired informal controls as a result of grant-aiding repairs. A church which proposes carrying out major works such as an extension, and also envisages needing English Heritage grant in the future, should have the works approved by English Heritage. Otherwise it is conceivable that such grants may be refused because the works are held to have radically altered the character of the church. Furthermore, grant-aid is conditional upon English Heritage being consulted about all future works of any significance that take place at the church. Secondly, it is English Heritage's policy that it wishes to be consulted on all works to grade I and II* buildings or affecting the setting of those buildings. Most churches that preserve any medieval fabric have had their listing recently upgraded to Grade II*. These piecemeal alterations and modifications have reached a stage where CONTEXT 36
RkJQdWJsaXNoZXIy MjgyMjA=