Faith groups are taking an interest in COP 26 and the Archbishop of Canterbury, the Pope and the Ecumenical Orthodox Patriarch are all due to attend, with their teams of advisors. These three leaders have recently issued an unprecedented joint statement calling on people “whatever their belief or worldview, to endeavour to listen to the cry of the earth and of people who are poor, examining their behaviour and pledging meaningful sacrifices… Today’s children and teenagers will face catastrophic consequences unless we take responsibility now… For their sake, we must choose to eat, travel, spend, invest and live differently, thinking not only of immediate interest and gains but also of future benefits.”
As a practitioner in secular environmental law and ecclesiastical law, I find this statement significant and refreshing. The references to future generations and balancing the short term and the long term are redolent of the Welsh Government’s Future Generations legislative and policy agenda, for example.
The General Synod, which is the Parliament of the Church of England, passed a resolution in February 2020 committing the CofE to:
“work to achieve year on year reductions in emissions and urgently examine what would be required to reach net zero emissions by 2030 in order that a plan of action can be drawn up to achieve that target… request reports on progress… every three years beginning in 2022… call on each Diocesan Synod, and cathedral chapter, to address progress toward net zero emissions in every three years.”
While this resolution has no legal force, it does, however, carry moral authority, together with the recent statements of the Archbishop. In secular planning or public law terms, these statements might be thought of as ‘policy’ or ‘material considerations’. Setting the target and calling for progress reports to some extent mirrors the Climate Change Act 2008. Secular experience has shown that litigation by Client Earth and others has been necessary to bring about effective implementation of climate change provisions, in the UK and Europe.
For those unfamiliar with ecclesiastical law, it might come as a surprise to learn that the CofE has powers to enact primary and secondary legislation of equivalent status to primary and secondary secular legislation. It also has its own statutory system of controls over changes to churches, churchyards and some church halls, known as the Faculty Jurisdiction, administered by ecclesiastical judges (Chancellors) and courts (consistory courts). The requirement for authorisation by Faculty extends to matters outside the scope of secular planning control, although there is some overlap in terms of external changes to churches and a faculty for a change to a listed building obviates the need for Listed Building Consent under a statutory principle known as the "ecclesiastical exemption".
The Faculty Jurisdiction Rules 2015 govern these proceedings and include lists of works which are permitted, rather like the secular General Permitted Development Order. The Church Buildings Council can and does issue guidance under statutory powers contained within the Dioceses Pastoral and Mission Measure 2007. There is scope for guidance and quasi policy to be taken into account by those involved in preparing, considering and determining faculty petitions, although no duty at present to do so.
A few consistory court judgments have engaged with the issues. Three faculties have been granted for ‘green’ projects, such as PV panels, where the judgments have expressly weighed the CofE’s green aspirations in the balance to support change. More interesting and difficult are decisions involving projects apparently inimical to the objectives, such as church floodlighting and like for like replacement of oil boilers. FTB’s Philip Petchey, Chancellor of Southwark Diocese, grappled with the issues in three recent decisions, St Michael and All Angels, Blackheath  ECC Swk 1, St Mark’s, Mitcham  ECC Swk 5 and St Mary, Oxted  ECC Swk 1.
After requiring submissions from the petitioners, and carefully taking account of the CofE’s ‘green’ policies, he concluded that, although he was not personally convinced, the choices in each case were for the parishes and he granted the petitions. In the floodlighting case, he also had regard to CBC guidance from a few years ago which set out some of the perceived advantages of highlighting churches in this way to their local communities. The judicial restraint illustrated in these judgments perhaps reflects traditional reticence within the jurisdiction to adopt as policy-driven an approach as secular planning inspectors. Therefore relying solely on moral authority or policy is unlikely to steer parishes away from the understandable attractions of the familiar and convenient.
The Rule Committee of the General Synod is meeting this autumn under my chairmanship (as Dean of the Arches and Auditor), to consider changes to the Faculty Jurisdiction Rules put forward by an informal Green Working Group. We will be looking at proposals to remove the need for faculties for various forms of electric heating, vehicle charging points, insulation, draught exclusion and broadband cables for streaming of services and meetings and aligning the permissions for PV panels on or in the curtilage of unlisted church buildings with the GPDO; alongside these greater freedoms, it is suggested that existing permissions for like for like oil boiler and fuel tank replacements should be removed and new procedural steps would be introduced requiring petitioners to provide justification for departing from CBC statutory guidance on environmentally friendly assessment and options.
Potential future changes to primary legislation might introduce carbon assessments and progress reporting requirements to existing statutory duties on churchwardens. Even if the Rule Committee agrees with the proposals, they would still need to be approved by the new General Synod (due to open in November) and, despite the 2020 resolution, there may be pushback from those concerned about increasing burdens for struggling parishes. The debate could prove interesting for environmentalists as well as church people.
Morag Ellis KC is a barrister at Francis Taylor Building, and a leading practitioner in the fields of Public, Planning, Environmental, Compulsory Purchase and Ecclesiastical Law. In June 2020, Morag was appointed as the Dean of the Arches and Auditor and Master of Faculties. As such, she is the senior ecclesiastical judge in England.
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