[Bell Historians] Great Malvern - 2 possible points of law.

[Peter Rivet]

I'm a planner, rather than a lawyer; but I think the short answer to Chris
Frye's question about the Great Malvern case is yes, the same rules apply to
faculty applications as to applications for Listed Building Consent.

Ecclesiastical exemption is regarded as a privilege, not a right.  Its
purpose is not to let places of worship off the controls that apply
generally to the care of listed buildings.  It is to avoid their having to
go through the same procedure twice.  Since the Church of England has a
faculty system in place to control alterations to its churches, it is
trusted to look after them.

Planning and Listed Building law is not contained in Acts of Parliament
alone.  It is operated with the aid of a series of circulars and advice
notes.  The principles which apply here are set out in the central
government advice note PPG15 (Planning Policy Guidance: Planning and the
Historic Environment) which can be found on line at:

http://www.communities.gov.uk/documents/planningandbuilding/pdf/142838.pdf

Section 8 of PPG15 deals with ecclesiastic exemption.  Among other things it
sets out the standards, including a Code of Practice, which churches wishing
to operate their own system of control are expected to meet.  At present
those benefitting from ecclesiastical exemption are the Church of England,
the Church in Wales, the Roman Catholic Church, the Methodist Church, the
Baptist Union of Great Britain, the Baptist Union of Wales and the United
Reformed Church.  Other denominations and religions do not at present
benefit but it is open to them to apply if they wish.  There is scope for
this as there are various Quaker meeting houses, synagogues and mosques on
the statutory list.

Paragraph 8.12 does refer to the need to relate decision involving churches
to the operational needs of the congregation.  This is to make sure that the
building remains viable as a place of worship.  It's usually seen as
referring to issues involving the retention of pews and altar rails.  A
listed building which is of no practical use to anyone cannot have a secure
future.  Applying the same principle the local planning authority, when
dealing with proposals involving a secular building, is expected to look
sympathetically at a change of use which will provide it with a secure
future, even if it involves something which wouldn't normally be looked on
favourably in that locality.  I don't think that helps us very much with
bell frames as English Heritage could argue that if an old frame is
considered to be of value, it may be better used as such than left to
moulder away.

For further guidance, there is another very useful source on the subject: a
book entitled Listed Buildings, Conservation Areas and Monuments.  It is
described in the publisher's blurb as "a complete guide to this highly
complex area of law".  This has become the standard reference book for
planners, conservation officers and members of the legal profession dealing
with cases of this kind.  The author is - yes, you've guessed it, Charles
Mynors.  It seems to me that it would be a brave man or woman who went to
court hoping to get the better of him on a point of law involving historic
buildings.

I don't think you can fault the way in which he conducted the hearing.
Early on, English Heritage tried to argue that they ought to be allowed to
appear as specialist advisors to him, to help him make his decision.  He
told them very firmly that if they wanted to object, they would have to
appear as objectors: he would decide the case himself.  As Chris Pickford
has pointed out, his decision was a logical one based on the information
available to him.  The problem is that with the benefit of hindsight, the
case for a new bell frame wasn't put as well as it could have been.

Peter Rivet



  
           
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