July 2012
CHURCH BUILDINGS (USES AND DISPOSALS) COMMITTEE
SCOPE OF THE COMMITTEE’S Responsibilities
1. MISSION AND PASTORAL MEASURE 2011: INTRODUCTION
1.1The Mission and Pastoral Measure 2011 (“the 2011 Measure”) provides the legal machinery for parochial and other reorganisation, including the closure of churches no longer required for public worship. Part 1 lays down a general principle which governs the whole of the 2011 Measure, namely that any person or body carrying out functions under the Measure “must have due regard to the furtherance of the mission of the Church of England”. [1] Other factors necessarily have to be taken into account in exercising particular functions, in some cases under express provisions elsewhere in the 1983 Measure. The “due regard” formula allows and requires a person or body exercising a particular function to take account of all the relevant factors, giving each of them proper weight in that particular context.
1.2Part 6 of the 2011 Measure provides the legal process for settling the future of closed churches. The final decision on these with the Commissioners (subject to secular planning in respect of new uses, possible non-statutory inquiries in certain contested demolition cases (see Para 3.10) and the right to seek leave to appeal to the Judicial Committee of the Privy Council where the declaration of closure and future of the building are both dealt with in the same scheme). The principal possible outcomes are:-
disposal for a suitable alternative use
vesting in the Churches Conservation Trust (CCT) for preservation
demolition and disposal of site.
1.3The future of a closed church is normally dealt with by a "pastoral (church buildings disposal) scheme", but where the declaration of closure is to be carried out at the same time (rather than earlier) a "pastoral church buildings scheme" is required. Only a pastoral church buildings scheme carries with it the right of appeal referred to above.
1.4The choice between these options is not unrestricted; suitable alternative use must normally be considered first, but where a church is unlisted or situated outside a conservation area there is no longer a requirement to seek an alternative use before proposals for demolition can be put forward.
1.5The Church Buildings (Uses and Disposals) Committee is appointed by the Board of Governors under Section 56(1) "for the purposes of exercising on behalf of the Commissioners such functions as the Board may assign to them from time to time in relation to buildings closed for regular public worship and the preparation of pastoral (church buildings disposal) schemes ...... ". Its terms of reference identify those classes of business which the Committee is authorised to do and complete on behalf of the Board and those which it is to consider and report to the Board. (In practice very few matters are referred to the Board.)
1.6In carrying out these responsibilities the Commissioners are assisted by the advice of their statutory advisers, the Statutory Advisory Committee of the Church Buildings Council (SAC) on historical, archaeological, architectural and aesthetic matters. However, a final decision on the future of a building rests with the Commissioners who may approve a particular course of action notwithstanding the contrary advice of the SAC.
2. USE SEEKING
2.1 It is a duty of the diocesan mission and pastoral committee (DMPC) “in the case of listed buildings or buildings in a conservation area, to make every endeavour to find a suitable alternative use or suitable alternative uses for churches which are proposed to be closed and buildings which have been closed for regular public worship in the diocese ---- and, in the case of any other such building, to develop proposals for the suitable alternative use or uses of the building or for the demolition of the building and the disposal of its site” [section 55(1)]. Guidance is provided in the Mission and Pastoral Measure 2011 Code of Recommended Practice. The DMPCmay recommend acceptance of a proposed use (or of proposals for demolition in the case of an unlisted building outside a conservation area) to the Commissioners, or report the failure of the outcome of its efforts to find a use; it has no power to dispose of the property itself - see Para 2.3 on authority for disposal.
2.2The Commissioners need to take a prima facie view on the suitability of the proposed use(s) and consult the bishop before publishing a draft scheme. These matters are normally considered by the Closed Churches Division under delegated powers. However, the Committee will be involved if (i) structural alterations facilitating the use are opposed by the SAC; (ii) the use itself is potentially contentious; or (iii) freehold disposal of a highly listed building is proposed (where deemed approval for such disposal has not been granted).
2.3Where a suitable alternative use has, in principle, been found, the draft scheme prepared by the Closed Churches Division provides for appropriation of the building and, possibly, part or all of the annexed land to such use(s) as are specified or generally described in the draft scheme, and sets out the terms of disposal. This may empower the Diocesan Board of Finance (DBF) to use or hold or let or licensethe property; or the Commissioners or DBF to sell or give it, for such purpose(s). Agreement to publish a draft scheme is subject to consideration of any representations made against the scheme and compliance with the remaining Mission and Pastoral Measure requirements if the scheme proceeds. The Committee may, in agreeing to the preparation of a scheme, require inclusion of particular covenants in any eventual transfer or lease.
2.4The secular planning legislation provides no ecclesiastical exemption from development control (i.e. planning permission) nor listed building and conservation area controls in respect of new uses for closed churches. A scheme authorising disposal for a new use can only be implemented if the necessary secular consents are in place.
2.5Under Section 55 the Commissioners may at any time require a DMPC to make a report to them in respect of a particular closed building, and/or may themselves take on the duty of seeking a new use in consultation with the DMPC. (The latter power is, in practice, usually only exercised by consent.) If the Commissioners consider that the search for a new use has not been exhausted, they may ask the DMPC to make further efforts or promote round-table discussions to facilitate the use seeking process.
2.6From time to time uses fail in cases where the diocese has leased the property, so retaining the freehold, and these properties may be subject to amending schemes. Where the freehold of the property has been disposed of, it is outside the ambit of the Measure, but the Commissioners retain an interest in it through covenants imposed in the transfer. Breaches (of) and possible releases of or variations to these may arise.
3. Determining The Future of a BuildinG where no Use can be Found
3.1If no alternative use or uses appearing to the Commissioners to be suitable can be found, and it does not seem justified to prolong the process then the Commissioners, after consulting the SAC, have to decide between (i) vesting the building in the CCT for preservation or (ii) demolition. In cases where the evidence strongly points to either remaining option this can be considered atany time following closure (but, in the case of the demolition of a listed church or one situated in a conservation area, they shall not prepare a draft scheme within six months of closure unless they are satisfied, after consulting the SAC, that, at that stage, there is no objection to such demolition taking place).
3.2The Commissioners are required normally to prepare a draft scheme providing for the future of a closed church not later than two years after the declaration of closure. This period can only be extended for a further minimum period or periods if it seems reasonable to the Commissioners to do so after consultation with the DBF and with the consent of the bishop.
Preservation by the CCT
3.3 Before considering any case for vesting the Commissioners need first to be satisfied that no suitable use has been identified or is likely to be forthcoming. Under Section 63(1)(b) a draft scheme may provide for care and maintenance of a closed church by the CCT "where it appears to the Commissioners:-
(i)after consultation with the Church Buildings Council[2] that the building is of such historic and archaeological interest or architectural quality that it ought to be preserved in the interests of the nation and the Church of England; and
(ii)that the Churches Conservation Trust will have the resources to meet the cost of repairing and maintaining it".
3.4 The Commissioners may on the same grounds agree in principle under Section 59(2) to vest a church in the CCT directly on closure where they are satisfied that no suitable alternative use will be available and any other criteria from time to time established by the Committee in relation to properties vesting in the CCT have been met.
3.5A range of considerations, mainly architectural, historical and financial, but also pastoral and practical, will be relevant when considering the case for vesting:-
(i)Historic and Archaeological Interest and Architectural Quality: The Committee has to satisfy itself as to the sufficiency of the historic and archaeological interest or the architectural quality of the building. The views of the SAC should normally carry compelling weight although the final decision is the Committee's. The SAC judges each case on its merits, identifying churches it deems worthy of vesting by assessing first their interest and quality, and secondly their overall importance.
(ii)Financial factors: Under section 57(16), the CCT has a duty to provide the Commissioners and the SAC with such information and advice as they may, from time and time, require about:-
the CCT's financial position generally; and
the estimated cost of repairing and thereafter maintaining any church or part of a church which is under consideration for vesting in the CCT.
3.6 The Committee need to take into account not only the cost of vesting an individual church, but also the broader implications for the CCT's resources and the potential for vesting other buildings in the triennial funding period concerned. This is in the context of the total budget allocated by the CCT for new vestings in the triennium, the amount already committed for this purpose, and the likely timing of expenditure. Knowledge of other potential candidates for vesting helps the Committee keep under review the broader question of whether vestings early on of, sometimes, borderline cases may preclude vestings of more worthy cases later. In the past, where there have been financial pressures on the CCT, the Committee has considered the competing claims of buildings in periodic batches, in order to prioritise suitable candidates.
3.7 The Commissioners' final say on vesting decisions is subject, in practice, to the arrangements agreed with the Government in respect of non-statutory public inquiries into proposed demolitions (see Para.3.10). The Commissioners have undertaken to accept a recommendation from the Secretary of State, after such an inquiry, that a church is of sufficient importance to be vested in the CCT, and to prepare a scheme to that effect[3].
3.8A scheme vesting a closed church in the CCTusually includes its contents, and may also vest some or all of the annexed land. In cases of dispute it is for the Commissioners to decide whether such contents or land should be included in the scheme. A decision to include clauses in a draft scheme providing for vesting is subject to consideration of any representations against the draft scheme.
Demolition
3.9 Where no suitable alternative use is available, and if vesting in the CCT is not considered appropriate, publication of a draft demolition scheme is the only remaining option. (A fourth available option of long-term vesting in the Diocesan Board of Finance has not proved a desirable expedient and is very rarely used). While the Committee takes a prima facie view before authorising publication of a draft demolition scheme, this may reflect a range of positions from seeing demolition as likely, sensible and desirable, to seeing publication of the draft scheme primarily as a helpful stimulus towards solving the church's future in some less drastic way. The Committee may choose to adopt a twin track approach, for example publishing a draft demolition scheme while at the same time supporting the diocese in embarking on a final period of marketing.
3.10 Partial or total demolition under a Mission and Pastoral Measure scheme is exempt from normal listed building and conservation area controls by specific provision respectively in and under the Planning (Listed Building and Conservation Areas) Act 1990. However, this exemption is weakened by the non-statutory inquiry arrangement whereby if a national amenity society, English Heritage, the local planning authority, or the Statutory Advisory Committee of the Church Buildings Council sustain an objection to the proposed demolition of a listed church or an unlisted church in a conservation area, and the Commissioners are minded to proceed with demolition, they will ask the relevant Secretary of State whether (s)he wishes to hold a non-statutory local inquiry or informal hearing. The Commissioners have undertaken to accept the Secretary of State's recommendations arising from any such inquiry or hearing and to prepare a scheme to that effect.
4. ADJUDICATING ON REPRESENTATIONS
4.1 Publication of a draft scheme gives the statutory interested parties (and anyone else who may wish to do so) an opportunity to make representations to the Commissioners for or against the draft scheme. Objections to preservation by the CCT are very rare, while objections to a new use often reflect an attempt to re-run the secular planning process. However, objections may also reflect pastoral issues and where they refer to use for non-Christian religious purposes the Committee has to consult the Board of Governors before considering them. In fact, the majority of adverse representations have to date arisen in respect of draft demolition schemes, where the arrangements for non-statutory inquiries outlined above may come into force. Otherwise there is no appeal beyond the Commissioners in respect of draft pastoral (church buildings disposal) schemes.
4.2It is the Committee's task (after consultation with the bishop) to consider those representations that are not otherwise resolved, for example through correspondence by officers. This will take place in the context of the public hearing of the representations, and as such is subject to the protocol for such hearings. There is no explicit guidance in the Measure as to the criteria by which the Commissioners should judge the issues raised in the representations. Each case is considered on its merits, taking into account the general principle (see Para 1.1) and the balance between all relevant factors, architectural and historical/archaeological, financial, pastoral and/or practical. The Committee may decide not to proceed with the draft scheme, or to amend it, or to allow it to proceed in its original form. Cogent reasons for the Committee's decision should be given.
4.3Anyone making a representation in respect of a draft scheme is sent the exchange of correspondence with the bishop and may comment further. He or she also has the right to attend and (potentially) speak at the meeting of the Committee considering the case.
4.4Draft pastoral church buildingsschemes under Sections 58 and 59 provide at the same time for (i) the church to be declared closed and (ii) its future to be settled. Depending on the nature of representations received, these will be considered by either the Pastoral Committee, or the Church Buildings (Uses and Disposals) Committee, or both if both the proposed closure and the proposed future of the building are opposed. Essentially the consent of both (the Pastoral Committee to the declaration of closure and the Church Buildings (Uses and Disposals) Committee to the new future) is required for the scheme to be taken forward.
Leave to Appeal (Pastoral church buildings schemes only)
4.5Where a draft pastoral church buildings scheme proceeds after consideration of a representation against it, the objector has the right to seek leave to appeal against the Commissioners' decision to the Judicial Committee of the Privy Council. Provisions dealing with the future of closed churches made under Sections 58 or 59 may, therefore, be subject to such an appeal. In earlier Judgements delivered by the Judicial Committee of the Privy Council, their Lordships have made it clear that in general "they will not, unless for irregularity of procedure, for excess of jurisdiction or on cogent evidence of erroneous judgement, refuse to confirm a pastoral scheme" (Holy Trinity Birkenhead PCC v the Church Commissioners May 1974).
4.6Before agreeing that any scheme might proceed after considering an adverse representation or before deciding to defend an appeal in respect of a pastoral church buildings scheme made by a disaffected representor (if leave were granted for such an appeal), the Commissioners need to be satisfied that the case has been handled in accordance with (a) the procedures laid down by the Mission and Pastoral Measure and (b) the best principles of administrative practice and law.
JUDICIAL REVIEW AND ADMINISTRATIVE LAW
4.7 In considering representations the Commissioners have a duty to the public and not just those who make representations. Judicial Review is not concerned with the merits of a decision (unless it is irrational) but the process by which the decision was made. The grounds for an action have been classed as illegality, irrationality and procedural impropriety. The Human Rights Act 1998 is now also a factor, with any Court being under a positive duty to give effect to the European Convention on Human Rights.
Illegality
The decision makers must understand correctly the law that regulates their decision and must give effect to it. An action claimed to be ultra vires or an abuse of power would provide material for a Review.
Irrationality
This is the test of reasonableness. A Review could only succeed on this count if it could be demonstrated that the decision was one which no reasonable tribunal could have reached on the information before it.
Procedural Impropriety
This covers a variety of cases, most importantly those which involve a breach of "natural justice". There is no universal definition of this expression, but it is generally understood to mean a duty to act fairly - that is to arrive at a decision fairly, not necessarily to arrive at a fair decision. This would include the principles of listening to both sides of the argument and not being a judge of one's own cause. The “right to a fair trial” under the Human Rights Act reinforces this.