The petitioners had obtained a faculty for the installation of far-infrared ‘Halo’ heating chandeliers, and now applied to substitute near-infrared ‘Couronne’ heating chandeliers. This would have reverted the faculty to proposals that had been abandoned during the previous faculty process. The petitioners submitted that of the 12 reasons given for the DAC’s previous ‘not recommended’ advice, 11 were no longer valid; and the remaining one was not worth the difference in price between the two options (they having the funds for the Couronne option but not the Halo). The court agreed with the DAC that the design of the Couronne was inferior to the Halo; and that the red glow of the Couronne would seriously detract from the appearance and significance of the building.
Rule 20.3 of the Faculty Jurisdiction Rules 2015 provides:
(1) If it appears to the court just and expedient to do so, it may order that any faculty, judgment, order or decree–
(a) be set aside (either in whole or in part); or
(b) be amended.
(2) If the court is considering exercising the power conferred by paragraph (1)(b) in a manner that would constitute a substantial change in the works or proposals already authorised by faculty the court must give such directions as to the giving of notice to the public and to such other persons and bodies as it considers just.
The court considered Re St John the Baptist, Suckley [2017] ECC Wor 2 and Re St John the Baptist, Cononley with Bradley [2020] ECC Lee 1, and derived the following propositions:
i. The consistory court may vary a faculty if it appears to the court ‘just and expedient’ to do so. These were cumulative, not alternative, requirements.
ii. The power to vary a faculty was to be exercised in accordance with the overriding objective of ‘enabling the court to deal with cases justly’.
iii. The power to vary a faculty may be exercised even though the variation would result in a substantial change in the works or proposals already authorised by faculty, albeit with the condition of giving notice.
iv. The court should not vary a faculty if this would be unjust to any who made representations on the original petition.
v. It may be appropriate to allow a minor variation, particularly where it amounts to altering the manner of doing something that has been permitted; however, a proposed variation to the substance of the works required more caution.
vi. A variation which would involve something significantly different may well need to be the subject of an entirely fresh petition.
vii. Consideration of a variation was bound to be a matter of fact and degree; but the probability of the change raising objections, distinct from those in relation to the original proposal, would be a relevant consideration.
viii. Particular care was needed where the proposed variation would affect the character of the church as a building of special architectural or historic interest.
ix. Particular care would also be required where the variation would involve a sufficiently major departure from the previously approved works that it would need to be the subject of a new faculty petition.
x. The court should be reluctant to allow a variation that would break faith with the basis of the original consultations, the engagement with the DAC or the terms of the original petition; and should not allow a variation which would not have been approved had it been part of the original petition.
xi. It was poor practice to implement certain of the works authorised by a faculty and then to apply to vary the faculty so as to change or exclude other elements.
xii. An application to vary a faculty founded upon funding difficulties required particular scrutiny. Parishes should not embark upon proposals if there were doubts about their ability to fund them.
xiii. Particular care was required where the Diocesan Advisory Committee did not recommend the variation for approval by the court.
In this case, the court concluded that it would be neither just nor expedient to vary the existing faculty as sought. The argument of expedience derived from the cost difference between the two options; but cost should not be the only consideration; and in any event, there was no evidence of any material change in the funding position from that set out in the original petition. Had the court formed the view that it was expedient, it would nevertheless have concluded that it would be unjust to do so. The proposed change was significant, affecting the character of the Grade I listed building, such that an entirely new petition with its consultative and procedural safeguards was appropriate. Furthermore, the court did not want to encourage parishes to bring petitions for a faculty in the hope that its terms might later be amended; that was unfair both to those directly involved, such as the Church Buildings team and the DAC; and to other parishes who might seek their assistance.
The application to vary would be dismissed.
