The petitioner sought a confirmatory faculty for the removal and replacement of an extremely rare and important Anglo-Saxon window head in this Grade I-listed church. The works in question had been carried out, on the basis of List B approval, as part of wide-ranging repair work identified as necessary in the church’s quinquennial inspection report (‘QIR’). It should have been apparent that the proposed works to the window head would go beyond what could properly be permitted in this way.

The DAC did not oppose the grant of a confirmatory faculty, but the Diocesan Archaeological Advior had advised separately that a replacement more closely reflecting the original shape of the window head should be ordered. The court, of its own motion, considered the possibility of making a restoration order under section 72 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

In considering the events which had led to the works in question, the court deprecated the disagreement over whether there was a formal requirement for a statement of significance or the listing description to appear in the QIR. The main purpose of the QIR was to record the condition of the fabric and identify the need for repairs. However, where a church contains ancient and significant fabric the need and appropriateness of repairs was inextricably linked to an assessment of the age and importance of the fabric in question. This was even more pressingly the case where the recommendation was for replacement of such fabric. Whatever the mechanism, such an assessment should have been done, and was not. However, the court was satisfied that the deeply regrettable and inexcusable failure to identify and act on the need for care and specialist advice was as a result of inadvertance rather than a deliberate desire to contravene the law or subvert due process.

In considering the petition for a confirmatory faculty, the court considered that the starting point was an assessment of whether a faculty would have been granted had it been sought prospectively (for example, see Re All Saints, Buncton [2018] ECC Chi 1). A purely Duffield-based approach must however be modified to reflect the realities of the situation, especially where (as in Re St Michael, Twerton-on-Avon [2024] ECC B&W 1) the original fabric had been disposed of and restoration in its truest sense was impossible.

In this case, the harm was substantial and there was no countervailing public benefit; it was unlikely that the replacement that had taken place would have been granted permission. However, the court noted that the option of simply dismissing the petition would have the effect of ‘… neither legitimising the unlawful works nor compelling their reversal’ (Re All Saints, Buncton). The court agreed that this was rarely a sensible solution. A restoration order was likely to be a necessary corollary of the refusal of a confirmatory faculty, and the practicalities of such an order should also be considered; a ‘prospective Duffield’ assessment was therefore only part of the consideration. Along with some lingering doubt as to the true date of the lost window head, the replaced stonework had been disposed of, and there was no consensus as to the design of any replacement, should the court order the removal of the unlawful work. There was, in any event, a lack of proportionality in ordering a further, new window head to be created and installed when this would still not restore the status quo ante.

While in no way condoning the mistakes in this case, the court did, by the barest of margins, grant the confirmatory faculty sought, on condition that any future replacement of the new stonework should be based as closely as possible on records of the lost original piece. The court also indicated that it would be inappropriate for the church to have proposals considered under List B for a period of 12 months, reserving the right to make a formal excluded matters order in the event of any deviation from this approach.