The petitioners, the (civil) parish council with responsibility for the closed churchyard, sought a faculty for the removal of an ash tree suffering from ash die-back, the archdeacon having refused to exercise her discretion under List B in relation to the matter. The tree was not in imminent danger of dying or falling, but could in the future constitute a serious risk to health and safety and to the Grade I listed building. The Diocesan Advisory Committee did not recommend approval.

Trees in churchyards are subject both to the faculty jurisdiction and to secular control (through tree protection orders and conservation area controls). In this case, there was no secular control restricting the felling of the tree. As to the exercise of the faculty jurisdiction, the court doubted the relevance of the Duffield questions in matters concerning the setting of, rather than changes to, listed buildings, but expressly left the question open. The appropriate approach would be: where the legislature had seen fit to put in place a sophisticated parallel system for identifying trees worthy of protection and the securing of secular consents before any work was undertaken in relation to such trees, the consistory court should operate a light-touch oversight. However, there would be occasions where individual trees or a cluster positively contributed towards the setting of a church such that the court should be astute to protect that setting. In such instances, a like approach to that commended in Duffield might well be appropriate. In the absence of such special features, the court's approach should be the ordinary presumption against change, with the burden of proof on the petitioners to demonstrate to the civil standard that the works should be carried out. The issue for the court to decide was whether there was a clear and convincing justification for the felling of the tree which formed the subject of the petition, as opposed to pruning (see re St Mary Mapledurwell [2019] ECC Win 1).

The court found that the risk, while not immediate, was real and serious. The petitioners currently had the resources to deal with the tree, but might not in the future, when the cost of removing a more dangerous tree would be considerably higher. A faculty would be issued as sought. The same conclusion would have been achieved under the Duffield questions, in the absence of harm to the significance of the church.

The court additionally observed that principles of subsidiarity dictated the appropriate level at which decisions should legitimately be made. The court should be slow to interfere with careful, well-informed and responsible decisions made by parish councils who carry the legal liability for maintaining churchyards, exercising an appropriate degree of deference. [DW]