The petitioners had applied for a faculty and for planning consent for an extension to the parish church. A lengthy process of fundraising, consultation and unsuccessful mediation between the petitioners and parties opponent resulted in the prospect of the planning consent expiring. The petitioners therefore applied for a ‘conditional faculty’ to level the ground on the site, insert four piles into the ground, re-site a memorial and erect a small sample panel of brickwork, sufficient to amount to implementation of the planning permission. This would allow further fundraising pending the application for a faculty for the full project, the works being reversible if the project did not go ahead.
At the first hearing before the Chancellor, counsel for the objectors argued that an ‘interim’ or ‘conditional’ faculty, as applied for, could not be granted by the court as a matter of law and that the only discretion enjoyed by the Chancellor to grant a faculty for something other than a ‘comprehensive scheme’ was in the case of urgency or emergency (Faculty Jurisdiction Rules 2000, SI 2000/2047, r 13(10)). The Chancellor ruled, however, that the Ecclesiastical Jurisdiction Measure 1991 and the Faculty Jurisdiction Rules (rules 8(3) and 2(1)) do indeed recognise this power, albeit (in the rules cited) after the intervention of the Archdeacon. He held that the reference to the Archdeacon did not prevent the Chancellor from making such an order without the Archdeacon's intervention, but for abundance of caution he invited the Archdeacon to exercise his power to refer the matter to him for determination. At the second hearing, the Chancellor issued a faculty for the interim works proposed, subject to them being completed before the expiry of time for implementing the planning consent.
Leave to appeal
An application for leave to appeal was determined by the Court of Arches on 6 August 2009. The Dean reviewed the law on the appropriate test to be applied when leave to appeal is sought, restating that what needs to be shown is ‘real prospects of success’ or ‘some other compelling reason why the appeal should be heard’, expressions derived from part 52.3(6) of the Civil Procedure Rules. Adopting this approach, he rejected two proposed grounds of appeal from the first judgment; namely that the power to grant such an interim faculty was only to be used in emergencies and that, if such a power did exist, the normal procedure for giving notice should apply (rule 6). He held that there was significant precedent for the making of such orders and that the precise form of notification of interested parties could be made on a case by case basis by the Chancellor. In this case the form of notification was agreed by the parties after the first hearing. Regarding the application for leave to appeal the second judgment he held that the Chancellor had balanced all the relevant factors before him and had come to a decision. Following the decision in the Court of Appeal in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685, [1984] 1 WLR 394, that ‘the court must not be tempted to interfere with the judge's order merely because we would have exercised the discretion differently from the way in which the judge did’ the applications were refused. [WA]
