THE FACULTY JURISDICTION
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. Apart from matters within List A of Schedule 1 of the Faculty Jurisdiction Rules 2015, 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.
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.
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
The Faculty Jurisdiction Rules 2015 have introduced new procedures with effect from 1 January 2016. Amongst the many changes, the most important are:
- 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. Attention is drawn in particular to A1(2) (Repairs and replacement of fittings in existing kitchens, lavatories and office accommodation in church buildings); A6(1) ("Routine repairs to the building and replacement of fittings in the [church halls and similar buildings]") A7(3) ("The repair of paths and other hard-surfaced areas, including resurfacing in the same material and colour" in churchyards) and A7(4) ("The routine maintenance of, repairs to, and like for like replacement of fences and gates (but not lychgates, walls or historic railings" in churchyards) each of which is likely to reduce significantly the previous workload of DACs. On the other hand it will be noted that A8 (Trees) is deliberately restricted in scope, because significant work to trees raises issues of compliance with planning legislation and is often controversial.
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.
- List B
List B is entirely new. These are matters 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. Attention is drawn particularly to B1(1) ("Works of routine maintenance and repair affecting the fabric of a church or historic material") provided (amongst other matters) the works have been identified as routine items of maintenance in the most recent quinquennial report or in a subsequent written advice from a qualified architect or surveyor; B1(4) ("Works of external or internal redecoration (other than to areas of historic wall painting, even if already painted over)", provided the overall appearance of the building is not changed); B5(1) ("The introduction of benches in a churchyard"; B5(3) ("The routine maintenance, repair and rebuilding of walls"); B5(4) ("The routine maintenance or repair of [not separately listed] lychgates"; and B6(1), (2) and (3) (a wide range of works to trees, including planting, but excluding felling (save where the tree is dying or dead or has become dangerous). Again, this should reduce the number of fairly routine matters formally coming to the DAC, prior to the submission of a petition.
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.
- 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:
- 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;
- any works which are likely to affect the archaeological importance of a building or any
archaeological remains within a building or its curtilage;
- any works in respect of all or part of which scheduled monument consent is required under the
Ancient Monuments and Archaeological Areas Act 1979;
- any works which involve extension, demolition or partial demolition of a building, or the erection
of a new building;
- 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;
- the exhumation or other disturbance of human remains;
- the reservation of a grave space;
- the sale or other disposal of any article of architectural, archaeological, artistic or historic
- the sale of any book remaining in or belonging to a library to which the Parochial Libraries Act
- the introduction of an aumbry or any other receptacle used for the reservation of the sacrament of
Holy Communion; or
- the introduction of, or the carrying out of any work to, a monument of the kind referred to in section 3 of the Faculty Jurisdiction Measure 1964.
- 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;
- 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 are no current Additional Matter Orders or 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
- Archdeacon's Jurisdiction
Save in two respects the Archdeacon's jurisdiction will no longer operate. This is because much of that jurisdiction is now replaced by the new List B. Therefore there will no longer be any circumstances in which Archdeacons grant Faculties.
The exceptions are:
- Archdeacons will retain power to make an order for the removal of an article to a place of safety.
It continues to be the case that 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
- Archdeacons will retain power to give a licence authorising a scheme of temporary minor re-ordering of a church for a specified period not exceeding 15 months. There are four changes in the 2015 Rules. First, it is made clear that a temporary minor re-ordering can include the church’s fixtures and fittings. This had hitherto been a matter of legal dispute. Second, it is provided that the scheme must not involve any material interference with or alteration to the fabric of the church. Third, Archdeacons are now given an express power to amend or revoke a licence. Fourth, whereas previously DAC’s involvement with such licences was limited to receiving copies thereof once made, Archdeacons must now additionally, and before giving a licence, seek the advice of the DAC or such of its members or officers as the Archdeacon sees fit (replicating the new position under List B).
- Archdeacons will retain power to make an order for the removal of an article to a place of safety. It continues to be the case that 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.
- Documents to be submitted to the DAC prior to petitioning for faculty
There is a new requirement that these include any advice or other material obtained by the intending applicants relating to the environmental implications of the works or proposals. It is hoped this will alert applicants to the importance of taking environmental implications into account; and where DACs consider that applicants should submit evidence that environmental considerations have been taken into account, they should ask for this.
- Documents to accompany petition
There are two new requirements. The first relates to environmental matters (see paragraph 7 above). The second is a requirement to submit copies of any relevant correspondence received from Historic England, the local planning authority, any national amenity societies, the Church Buildings Council (“CBC”), or any other body or person.
- Listed Buildings
Mention has already been made of the restrictions on use of List A and B powers in respect of listed buildings (above).
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.
Apart from the inclusion of certain tree-related matters in Lists A and B in Schedule 1 to the Faculty Jurisdiction Rules 2015, two further changes 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:
Some minor revisions have been made to the Forms, some of which have also been renumbered.
NB: The 2015 Rules came into force on 1 January 2016. They will apply from that date to all cases where a faculty Petition has not already been submitted. The Faculty Jurisdiction Rules 2013 will continue to apply to pre-2016 applications.
- 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
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. 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 together with the petition, so that the Registrar can enter the
details on the web site, advising people of the last date for objections.
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:
Schedule 3 of the Faculty Jurisdiction Rules 2015 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:
The Care of Churches and Ecclesiastical Jurisdiction Measure 1991 and the Faculty Jurisdiction Rules 2015 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.
Tel: 01603 622211
Click on the following topics for further information:
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:
Notes on 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.
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.