¹ Whyte, W, Unlocking the Church, The Lost Secrets of Victorian Sacred Space (Oxford, 2017), 35Google Scholar, commenting on McGrath, F (ed), John Henry Newman Sermons, 1824–43: vol iv (Oxford, 2011), 236–243Google Scholar.

² Kieckhefer, R, Theology in Stone: Church Architecture from Byzantium to Berkeley (Oxford, 2004), 11CrossRefGoogle Scholar (emphasis in original).

³ Doe, N, The Legal Architecture of English Cathedrals (Oxford, 2017), 3, 255–257CrossRefGoogle Scholar.

⁴ Ibid, preface and 256.

⁵ Historic England listing description, Old Chapel Walpole: available at <historicengland.org.uk/listing/the-list/list-entry/1030448?section=official-list-entry>; D Holmes, How a Suffolk Farmhouse became a Chapel (Historic Chapels Trust), available at <walpoleoldchapel.org/david-holmes-essay/>, both accessed 9 Feburary 2023. Kieckhefer (note 2) also analyses this building, 44–45.

⁶ Historic England, Places of Worship Listed Building Selection Guide (December 2017 edition), 15, para 1.4.

⁷ Canon F 2 (1) ‘Of the holy table’ provides: ‘1. In every church and chapel a convenient and decent table, of wood, stone, or other suitable material, shall be provided for the celebration of the Holy Communion, and shall stand in the main body of the church or in the chancel where Morning and Evening Prayer are appointed to be said. Any dispute as to the position where the table shall stand shall be determined by the Ordinary’.

⁸ J Reeks, ‘Fair Persuasions’? The Implementation of Laudian Altar Policy in the Diocese of Bath and Wells (2018 Reformation) 23(2), 175–190, doi.org/10.1080/13574175.2018.1519178, accessed 10 February 2023.

⁹ Re Rustat Memorial, Jesus College, Cambridge [2022] ECC Ely 2.

¹⁰ National Planning Policy Framework (Ministry of Housing, Communities and Local Government 2021), para 198: ‘In considering any applications to remove or alter a historic statue, plaque, memorial or monument (whether listed or not), local planning authorities should have regard to the importance of their retention in situ and, where appropriate, of explaining their historic and social context rather than removal’.

¹¹ Dioceses, Pastoral and Mission Measure 2007, s 55(1)(d). Contested Heritage in Cathedrals and Churches, (The Church Buildings Council and the Cathedrals Fabric Commission for England, 2021), 17–24, available at: <https://www.churchofengland.org/sites/default/files/2021-06/Contested_Heritage_in_Cathedrals_and_Churches.pdf>, accessed 28 December 2023. The guidance is being reviewed, in the light of the Archbishops’ Commission for Racial Justice First Biannual Report, Spring 2022 (Church of England, 2022).

¹² See, for example, A Taylor, ‘The Case of the Rustat Memorial – Does Duffield Pose all the Right Questions?’ (2023) 25 Ecc LJ 38–51.

¹³ Archbishops’ Commission for Racial Justice First Biannual Report (note 11), 22.

¹⁴ cf. Doe (note 3), 254–256.

¹⁵ The Victorian Society opposes the current system of regulation by chancellors under the faculty system, as noted by George, C, ‘Do We Still Need the Faculty System?’ (2020) 22 Ecc LJ 281–299Google Scholar, 294.

¹⁶ Canons F1 (font), F2 (holy table), F6 (reading desks and pulpit), F7 (seats), F8 (church bells), F10 (alms box) and F13 (care and repair of churches).

¹⁷ In particular, Part M of the Buildings Regulations 2010, and Approved Document M, prescribe requirements for access to public buildings and facilities within them: <assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/901517/Manual_to_building_regs_-_July_2020.pdf>, accessed 20 April 2023.

¹⁸ Re Holy Trinity, Eccleshall [2010], Court of Arches, para 68; Re Holy Cross, Pershore [2002] Fam 1, para 105; Re St Christopher Walworth [2016] ECC Swk 14 and D Pocklington, ‘Issues of equality in the consistory courts’ in Law and Religion UK, 23 December 2016: available at <lawandreligionuk.com/2016/12/23/issues-of-equality-in-the-consistory-courts/>, accessed 20 April 2023; Re St Giles, Exhall [2021] EACC 1, para 8.12.

¹⁹ Equality Act 2010, s 149.

²⁰ Re Holy Trinity, Eccleshall [2010], Court of Arches, at para 68.

²¹ Canon LXXXII: ‘A decent Communion-table in every Church’: “Whereas we have no doubt, but that in all Churches within the Realm of England, convenient and decent Tables are provided and placed for the Celebration of the holy Communion, We appoint that the same Tables shall from time to time be kept and repaired in sufficient and seemly manner, and covered in time of Divine Service with a Carpet of Silk or other decent Stuff thought meet by the Ordinary of the place, if any question be made of it, and with a fair Linen Cloth at the Time of the Ministration, as becometh that Table, and so stand, saving when the said holy Communion is to be Administered. At which Time the same shall be placed in so good sort within the Church or Chancel, as thereby the Minister may be more conveniently heard of the Communicants in his Prayer and Administration, and the Communicants also more conveniently and in more number may communicate with the said Minister: and that the Ten Commandments be set up upon the East-end of every Church and Chapel where the people may best see and read the same, and other chosen Sentences written upon the Walls of the said Churches and Chapels in places convenient: And likewise, that a convenient Seat be made for the Minister to read Service in. All these to be done at the Charge of the Parish.” Available at: <anglican.net/doctrines/1604-canon-law/>, accessed 20 April 2023.

²² Canon F2:

1. 1.

   1. In every church and chapel a convenient and decent table, of wood, stone, or other suitable material, shall be provided for the celebration of the Holy Communion, and shall stand in the main body of the church or in the chancel where Morning and Evening Prayer are appointed to be said. Any dispute as to the position where the table shall stand shall be determined by the Ordinary.

2. 2.

   2. The table, as becomes the table of the Lord, shall be kept in a sufficient and seemly manner, and from time to time repaired, and shall be covered in the time of divine service with a covering of silk or other decent stuff, and with a fair white linen cloth at the time of the celebration of the Holy Communion.

²³ Repealed by the Church of England (Worship and Doctrine) Measure 1974, Schedule 2 which now authorises provision for such matters by way of Canon.

²⁴ HL Deb 24 March 1964, vol 256, cols 1131–1136: Earl Alexander of Hillsborough, opposing the Motion for seeking Royal Assent, said: ‘I was brought up in the Church of England. I love so much of it, especially its Prayer Book, that when I begin to see these alterations in the Prayer Book, which set up the first true basis of civil and religious liberty in this country (it had not existed until then), and the example which, in religious and civil and political life, has had so much to do with the growing greatness of this country in the last 300 years; the setting up of its Commonwealth, as well as the examples that have been given over and over again by those who hold our belief in civil and religious liberty according to the reformed Church of England, I find it a sad sight to see Prelates hurrying to get through this kind of Measure which is upsetting the doctrine.’

²⁵ Re St Stephen Walbrook [1987] 2 All ER 578, 580h-j.

²⁶ Liddell v Westerton (1857) 29 LTOS 54; Faulkner v Lichfield and Stearn (1845) 1 Rob Eccl 184, 163 ER 1007; Re St Stephen, Walbrook [1987] 2 All ER 578, 581a and 600c–610b.

²⁷ Planning (Listed Buildings and Conservation Areas) Act 1990, s 60(1); Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010. Secular listed buildings require listed building consent for material external or internal changes under Planning (Listed Buildings and Conservation Areas) Act 1990, s 7.

²⁸ ‘Building’ in the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010 has the same meaning as ‘building’ in the Planning (Listed Buildings and Conservation Areas) Act 1990, s 91(2), which is incorporated from the Town and Country Planning Act 1990, s 336. For the purposes of the 2010 Order a reference to a ‘building’ or a ‘church building’ includes reference to (a) any object or structure fixed to that building, and (b) any object or structure within the curtilage of that building which, although not fixed to that building forms part of the land. For cathedrals, the exemption applies to buildings used for ecclesiastical purposes, structures and monuments included inside a red line agreed between the Department for Culture, Media and Sport and the relevant cathedral.

²⁹ The Operation of the Ecclesiastical Exemption and related matters for places of worship in England (Department for Culture, Media and Sport, July 2010), paras 9–11 (emphasis added). Specified denominations are the Church of England; the Roman Catholic Church; the Methodist Church; the Baptist Union of Great Britain (and on occasions the Baptist Union of Wales); and the United Reformed Church.

³⁰ The 1237 Constitution of Otho forbade rectors to ‘pull down ancient consecrated churches without the consent and licence of the bishop of the diocese’: Halsbury's Laws of England, vol 34, 5th edn (London, 2011), para 1068, n 1. See now Canon F13(3).

³¹ See e.g. Cathedrals Measure 2011, ss 2, 8, 9 and 22; the Faculty Jurisdiction Rules 2015, Parts 4 (Consultation and Advice before starting Faculty Proceedings) and 9 (Special Notice of Petition, Consultation etc.), and rr 10.1 (Interested persons) and 27.7 (Interveners). See also the Mission and Pastoral Measure 2011, ss 55, 57, 62, 63 and 65.

³² In a debate on the Housing and Planning Bill in 1986, Lord Skelmersdale explained the four essential components of this compromise agreement, which applies specifically to the Church of England: HL Deb 13 October 1986, vol 480, cols 608–611. In short:

1. (1)

   (1) When a scheme under (as it then was) the Pastoral Measure 1983 (now the Mission and Pastoral Measure 2011) proposes demolition of a listed church (or a non-listed church in a conservation area), and reasoned objections have been received from (a) the Historic Buildings and Monuments Commission, (b) the Advisory Board for Redundant Churches, (c) the local planning authority or (d) a national amenities society, the Church Commissioners agreed to ask the Secretary of State whether they wish to hold a non-statutory local public inquiry;

2. (2)

   (2) The Church Commissioners undertook to accept a recommendation from the Secretary of State following such an inquiry that the church is of sufficient importance to be vested in the Redundant Churches Fund or, in cases where the recommendation was not that the building should go to the fund, to make further efforts to find an alternative use and to engage in further consultation with the Secretary of State before using the pastoral measure powers to demolish;

3. (3)

   (3) The Church Commissioners were assured that the Government would maintain their commitment to the Redundant Churches Fund and ensure that, at each quinquennial review, it ‘receives adequate resources to continue its important work’. In considering what recommendation to make following a non-statutory inquiry, the Secretary of State agreed to take into account the financial implications of retaining a church building as well as the architectural and historic interest of the church and other planning and social factors; and

4. (4)

   (4) The Historic Buildings and Monuments Commission, the local planning authority and the national amenities societies were to be represented in the membership of diocesan advisory committees.

The compromise was summed up by Lord Skelmersdale as follows: ‘These proposals – across the whole country – have not been arrived at without difficulty. The Church Commissioners and the Churches Main Committee are very concerned with the financial implications, while the Historic Buildings and Monuments Commission have expressed some disappointment that the Government chose not to seek to repeal more of the existing [exemptions]. Clearly, the effectiveness of the proposals will depend in large measure on a great deal of co-operation between planning authorities and Church bodies’: HL Deb 13 October 1986, vol 480, col 611. For further background as to the operation of this convention today, see The Operation of the Ecclesiastical Exemption (note 29), paras 45–51.

³³ Mission and Pastoral Measure 2011, Part 6. The Mission and Pastoral Measure 2011 Code of Recommended Practice, Vol 2: Dealing with Consecrated Church Buildings Guidance Note (Church of England, July 2012), para 12.21 explains: ‘… the Churches Conservation Trust has as its object “the preservation, in the interests of the nation and the Church of England, of churches and parts of churches of historic and archaeological interest or architectural quality” (together with their contents) which have been vested in it by pastoral church buildings or pastoral (church buildings disposal) schemes under Part 6 of the Measure’.

³⁴ Planning (Listed Buildings and Conservation Areas) Act 1990, ss 1 and 7; Department of Culture Media and Sport Circular, Principles of Selection for Listed Buildings (Department for Culture, Media and Sport, November 2018).

³⁵ National Planning Policy Framework (Department of Communities and Local Government, December 2023), Glossary.

³⁶ Statements of Heritage Significance, Analysing Significance in Heritage Assets, Historic England Advice Note 12, 16, available at: <historicengland.org.uk/images-books/publications/statements-heritage-significance-advice-note-12/heag279-statements-heritage-significance/>, accessed 22 April 2023.

³⁷ Listed Building Selection Guide (note 6), 2, para 1.1. The Church of England website gives slightly different but similar figures: <churchofengland.org/about/our-churches#:~:text>, accessed 19 April 2023.

³⁸ Re St Alkmund, Duffield [2013] Fam 158, para 37: ‘… the Church of England does not have the faculty jurisdiction in order to benefit from the ecclesiastical exemption; it only has the ecclesiastical exemption because the Government's understanding is that the faculty jurisdiction does, and will continue to, provide a system of control that meets the criteria set out in guidance issued by the relevant department of state in relation to the ecclesiastical exemption. That exemption is of importance to the Church as it permits it to retain control of any alteration that may affect its worship and liturgy’.

³⁹ National Planning Policy Framework (note 35), paras 199–202.

⁴⁰ Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137, [2015] 1 WLR 45.

⁴¹ Ibid, at [29].

⁴² Ibid, at para 37, emphasis added.

⁴³ Re St Peter, Shipton Bellinger [2016] Fam 193, at para 41, where the court said that considerations of setting are unlikely to be determinative in faculty cases and the matter should have been considered already by the Local Planning Authority, although they left the point open. In Christ Church, Spitalfields Open Space Limited and Others v the Governing Body of Christ Church Primary School and Others [2019] Fam 343, at para 112, the court agreed with counsel's concession that the effect on the setting of the listed church was relevant to the exercise of discretion under the predecessor to Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s 72(4) (restoration orders), and her submission that the Duffield guidelines were not engaged in relation to the effect of removing an unlawful building in the churchyard.

⁴⁴ Acts of Uniformity 1552, 1559. Tresham's eldest son, Francis, not content with mere architectural protest, was executed in 1605 for his part in the Gunpowder Plot.

⁴⁵ See the Historic England listing description: ‘The New Bield (listed grade I) … was a proud and visible statement of the family's adherence to the Old Faith, its theme the Passion and Faith of Our Lord. Of stone, and with a Greek cross plan overall c 21m square, it is of two storeys above a service basement. The quality of the masonry is high, and the whole building is extremely decorative: deep bay windows project from each wing, two-tone stonework emphasises detail, while inscriptions and symbols proclaim the building's religious symbolism’; available at: <historicengland.org.uk/listing/the-list/list-entry/1001037?section=official-list-entry>, accessed 18 April 2022.

⁴⁶ A Eburne, The Passion of Sir Thomas Tresham: New Light on the Gardens and Lodge at Lyveden (2008) 38 Garden History 114–134; this analyses the relationship between Tresham's experiences as a protester against and recusant under the legislation and his architectural expression in the building and its gardens.

⁴⁷ Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137, [2015] 1 WLR 45, at paras 38–44.

⁴⁸ Re St Alkmund, Duffield [2013] Fam 158, at para 87.

⁴⁹ Re St John the Baptist, Penshurst [2015] WLR (D) 115, at para 22 (emphasis added).

⁵⁰ Faculty Jurisdiction Rules 2015, rr 4.4(1) and 5.5(3).

⁵¹ Re St Peter, Shipton Bellinger [2016] Fam 193, at para 7.

⁵² Ibid, at paras 34–37 and 41–48.

⁵³ Ibid, at paras 3, 4, 7, 9–10, 18–19, 77–82.

⁵⁴ Doe (note 3), 255.

⁵⁵ Re St Alkmund, Duffield [2013] Fam 158, at para 55; Re St John the Baptist, Penshurst [2015] WLR (D) 115, at paras 18 and 86.

⁵⁶ Re St Alkmund, Duffield [2013] Fam 158, at paras 19 and 28.

⁵⁷ Ibid, at paras 22–36.

⁵⁸ Ibid, at para 27.

⁵⁹ Ibid, at para 52, emphasis added.

⁶⁰ Re St John the Baptist, Penshurst [2015] WLR (D) 115, at para 57.

⁶¹ cf. Doe (note 3), 256.

⁶² The Penshurst screen had a reprieve because the proposed arrangement for its transfer to another church fell through.

⁶³ Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 13(5). Now Care of Churches and Ecclesiastical Jurisdiction Measure 2018, s 72.

⁶⁴ Christ Church, Spitalfields Open Space Limited and Others v the Governing Body of Christ Church Primary School and Others [2019] Fam 343, at para 140.

⁶⁵ In the Matter of Maidstone, All Saints (2015) (unrep.).

⁶⁶ In the Matter of SS. Peter and Paul, Pettistree [2017] ECC SEI 6.

⁶⁷ Jessel, C, A Legal History of the English Landscape (London, 2011)Google Scholar, foreword by Dame F Reynolds, Director General, National Trust.

⁶⁸ See above, note 32.

⁶⁹ Listed Buildings and Conservation Areas Act, s 72; Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137, paras 16–29.

⁷⁰ See ‘JTP's “harmful” Guildford cathedral housing proposals blocked – again’: available at <architectsjournal.co.uk/news/jtps-harmful-guildford-cathedral-housing-proposals-blocked-again>, accessed 2 May 2023.

⁷¹ Appeal decision 3161412 by David L Morgan, Guildford Station and Car Park, Station Approach, Guildford, Surrey GU1 4UT (22 January 2018), paras 17–32, which provides an exemplary assessment of heritage significance of the Cathedral, its setting and the effect of development proposals upon it.

⁷² Principle 80(4), The Principles of Canon Law Common to the Churches of the Anglican Communion, 2nd edn (Anglican Consultative Council, 2022), 107.

⁷³ Re St Alkmund, Duffield [2013] Fam 158, at para 25; see also Re St Stephen, Walbrook [1987] 2 All ER 578, 598b-c.

⁷⁴ R (Richard Buxton) v Cambridge City Council [2021] EWHC 2028, para 50; Historic England Advice Note 2: Making Changes to Heritage Assets (Historic England February 2016), para 43; Re St Alkmund, Duffield [2013] Fam 158, at paras 92–94.

⁷⁵ Conservation Principles, Policies and Guidance for the Sustainable Management of the Historic Environment (English Heritage, April 2008), para 45: ‘The use and appropriate management of a place for its original purpose, for example as a place of … worship … illustrates the relationship between design and function, and so may make a major contribution to its historical values’.

⁷⁶ Worship and Doctrine Measure 1974 and the B Canons made under it.

⁷⁷ Reflected in the rubric in the Book of Common Prayer, ‘In Quires and places where they sing…’.

⁷⁸ Worship and Doctrine Measure 1974, s 2 and Canon C15 Of the Declaration of Assent.

⁷⁹ J Harte, ‘Doctrine, Conservation and Aesthetic Judgment in the Court of Ecclesiastical Causes Reserved’ (2008) Ecc LJ 22–32, 28–32.

⁸⁰ P Petchey, Five Faculty Cases from the City, Ecclesiastical Law Society Lecture, 11 January 2018, 11–12, available at: <Petchey-Jan-2018-1.pdf (ecclawsoc.org.uk)>, accessed 1 May 2023.

⁸¹ Re St Stephen, Walbrook [1987] 2 All ER 578, at 596h.

⁸² Harte (note 79), 28.

⁸³ Re St Luke the Evangelist, Maidstone [1995] Fam 1, 7A–B.

⁸⁴ Care of Cathedrals Measure 2011, s 1. The same duty is imposed on decision-makers under the Cathedrals Measure 2021 (a Measure that makes provision about the governance, management, property and financial affairs of cathedrals). Such individuals must also have due regard to ‘the importance of each cathedral's role in providing a focus for the life and work of the Church of England in the diocese’: Cathedrals Measure 2021, s 1.

⁸⁵ Care of Cathedrals Measure 2011, s 22.

⁸⁶ Form 10 (Rule 7) Notice, Chichester Cathedral, Plensa sculpture, 15 December 2011.

⁸⁷ Mission and Pastoral Measure 2011, s 1.

⁸⁸ Mission and Pastoral Measure 2011, s 74.

⁸⁹ Church of England (Miscellaneous Provisions) Measure 2023, s 14.

⁹⁰ Faculty Jurisdiction (Amendment) Rules 2022.

⁹¹ See Re Chapel of King's College to Our Lady and St Nicholas [2023] ECC Ely 1; Re Holy Trinity Headington Quarry [2023] ECC Oxf 4; Re St Mary the Virgin Dedham [2022] ECC Chd 2; Re St Leonard, Southoe [2022] ECC Ely 4; Re St Peter's, Walsall [2021] ECC Lic 4; Re St Michael and Angels, Blackheath Park [2020] ECC Swk 1; Re St Mark's Church, Mitcham [2020] ECC Swk 5; In the Matter of the Church of St Mary the Virgin, Welling [2022] ECC Swk 3; Re St Thomas and St Luke, Dudley [2021] Ecc Wor 2.

⁹² In the Southwark cases (ibid), the Chancellor regarded it as adequate that the petitioners had asked themselves about the implications of non-net-zero proposals, whereas in the Worcester case (ibid), the Chancellor took the view that the judgment as to appropriateness fell to her.

⁹³ Re Chapel of King's College to Our Lady and St Nicholas, Cambridge [2023] ECC Ely 1, at paras 1 and 73. The Fifth Mark of Mission of the Anglican Consultative Council is ‘To strive to safeguard the integrity of creation and sustain and renew the life of the earth’, The Five Marks of Mission (Church of England, version 2, November 2017), available at: <churchofengland.org/sites/default/files/2017-11/MTAG%20The%205%20Marks%20Of%20Mission.pdf>, accessed 2 May 2023.

⁹⁴ Re Chapel of King's College to Our Lady and St Nicholas, Cambridge [2023] ECC Ely 1, at paras 83–90.

⁹⁵ See further M Hill, Ecclesiastical Law, 4th edn (Oxford, 2018), 15, para 1.34.

⁹⁶ Form 10 (Rule 7) Notice, Salisbury Cathedral photovoltaic panels, 25 March 2020. The York Minster decision from 2023 is not yet published.

⁹⁷ The Church's response to the Racial Justice Commission has, similarly, been led by ‘soft law’; the Church Buildings Commission is reviewing its statutory guidance on contested heritage with the assistance of a racially diverse new committee, in the light of recent consistory court decisions: Second Biannual Report of the Archbishops’ Commission for Racial Justice (Church of England Winter 2022 – 2023), 25–26, available at <https://www.churchofengland.org/sites/default/files/2023-02/rjr2_final-digital.pdf>, accessed 29 December 2023.

⁹⁸ cf. Doe (note 3), preface.