LAW & PRACTICE Paras 170 et seq deal with the workings of the Chancellor's jurisdiction. This begins with the important matter of notices (citations) and points out that the Chancellor may order any person or body to be specially cited where r.12(3) applies. These must include EH, the local planning authority and the national amenity societies except where they have already been involved by the parish. English Heritage may apply to give evidence at a hearing, even if it is not a party (Para 172). Certain matters must also be referred to the Council for the Care of Churches, so as to allow it to comment where objects of special artistic or historic significance are affected or where the DAC lacks specialist expertise. The CCC may also apply co give evidence in any case whether it is, or is not, a party. Both EH and the CCC may thus become involved in any case as a judge's witness without becoming a 'party opponent' and thus liable for coses. OBJECTIONS TO FACULTY Any of the following can object to a faculty petition: a resident of the parish or one entered on the church electoral roll, the Archdeacon, the PCC, the local planning authority, any national amenity society and any other person or body designated by the Chancellor in relation to the petition who appears to have a lawful interest in the proposals (EH, for instance, where a church has been grantaided). Notice of objection must be sent to the Diocesan Registry within, usually, 28 days of citation. The objector then becomes a 'party opponent' to the proceedings and must supply both Registrar and petitioners with detailed particulars of the objection within 21 days after the Registrar directs this to be done. le is worth noting chat an objector who becomes a party opponent may become liable to costs. The Code of Practice points out that anyone who wishes to avoid this risk should instead apply to give evidence as judge's witness (Para 180). The full implications of the judge's witness procedure for EH (which has a different locus), local planning authorities and the national amenity societies, are difficult co assess. To take it at face value Paras 179 and 180 imply chat anyone who wishes to object without the penalty of costs can do so as judge's witness but it must be assumed, at least until proved otherwise, chat Chancellors will neither have to call judge's witness nor place so much weight on evidence from judge's witness as from an objector liable to costs. CONTEXT 38 GUIDING PRINCIPLES Para 181 amplifies the guiding principles given in Paras 3-4 which point out that churches exist for a purpose - the worship of God and the mission of his church - and chat " the clergy and lay people within the Church of England ..... are proud of the fact that churches and their contents are among this country's finest historic, artistic and architectural treasures". As to other relevant principles (states Para 181) it should also be noted by way of example that in considering whether to grant a faculty in a r.12(3) case the Chancellor will have regard to the desirability of preserving a listed building or its setting, preserving or enhancing the character or appearance of a Conservation Area and preserving archaeological remains which are of national importance. Indeed, a recent decision of the Court of Arches (Re All Saints, Melbourn 1992) has confirmed that in the case of a listed building there is a presumption against allowing a change which would adversely affect its character as a building of special architectural or historic interest. Paras 184-187 mention the imposition of conditions of faculties and specifically mention archaeology as suitable for conditioning. Total and partial demolition are handled differently under the new legislation (Paras 188-195). Demolition is, of course, also possible under the Pastoral Measure 1983 and it is likely that faculty jurisdiction will be restricted to partial demolitions pursuant on other works included in a faculty petition. Again, if the church is listed or in a Conservation Area, the Registrar must give due notice of the petition to the Secretary of State, EH, the local planning authority and the relevant national amenity societies. The Chancellor may, apparently, consider that works of partial demolition which are part of a larger programme of repair, alteration or reconstruction but which would not materially affect "the church's internal or external appearance or architectural, archaeological, artistic or historic character" can be dealt with in a different way. This is unexplained in the Code of Practice and we must presumably wait for the rules to see how this will work. In such cases, where r.12(3) applies, citation will obtain and the DAC must be consulted. A major change is the necessity in faculcy jurisdiction cases for full demolition for listed building consent. APPEALS The generality of the appeals procedure is given in Paras 202-203. Any party may appeal to the Court of Arches (for the Province of Canterbury) and the Chancery Court of York (for York) and from there to final appeal at the Privy Council - though that right was never exercised under the 1963 Measure. Cases the Chancellor considers involve "matters of doctrine, ritual or ceremonial" would go to the Court of Ecclesiastical Causes Reserved - and that has sat only twice since 1963. ENFORCEMENT The Chancellor has important powers to enforce the law (Section VIII, Paras 222225). Briefly, these include payment of costs and expenses, Injunctions (particularly to stop unauthorised work - applications can be made by EH, the local planning authority and the national amenity societies), restoration orders and actions for contempt of court. Any fine or custodial sentence would be imposed by the High Court. The Code of Practice is lengthy, dealing as it does with a subject at least as complicated as the system of secular listed building controls. It is also worth remembering that this is an adversarial legal system (the Consistory Court being equivalent in status to the High Court), rather than having the investigatory role performed by planning inquiries. A working knowledge of the Code will be useful for anyone dealing regularly with historic church control matters. As a revised legal system, subject to similar precedent as the secular one, there is much that is unclear which will only become clear after use. It will be particularly interesting to see the interaction of the faculty jurisdiction rules for demolition with both the Pastoral Measure 1983 and the secular system, the difference between the roles of the objector and the Judge's witness and the operation of the curtilage rule. Until then we wait and see. Dr Richard Morrice Like all acts and statutes, the Care of Churches and Ecclesiastical Jurisdiction Measure and the two rules - Faculty Jurisdiction Rules 1992 (Sl/92:2882) and Faculty Jurisdiction (Injunctions and Restoration Orders) Rules 1992 (Sl/92:2884) - are available through HMSO. The Care of Churches and Ecclesiastical Jurisdiction Measure: Code of Practice is a church document and is availablefrom Church House Bookshop,31 Great Smith Street, London SWJ P 3BN (price£5.95 plus 75p postageand packing). 33
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