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					REDUNDANT CHURCHES COMMITTEE THE SCOPE OF THE COMMITTEE'S RESPONSIBILITIES

This note summarises the scope of the Committee's responsibilities and that of its individual members.

PASTORAL MEASURE 1983

Part III of the Pastoral Measure provides the legal process for settling the future of redundant churches. The final decision on the future of a redundant church rests with the Commissioners (subject to secular planning in respect of new uses, possible nonstatutory inquiries in demolition cases and the right to seek leave to appeal to the Judicial Committee of the Privy Council where the declaration of redundancy and future of the building are both dealt with together). The principal possible outcomes are:   disposal for a suitable alternative use vesting in the Churches Conservation Trust (CCT) for preservation demolition and disposal of site.

These are normally dealt with by a "redundancy scheme", but where the declaration of redundancy is to be carried out at the same time (rather than earlier) a "pastoral scheme" is required. Only a pastoral scheme carries with it the right of appeal referred to above. 2. The choice between these options is not unrestricted; suitable alternative use must normally be considered first. 3. The Redundant Churches Committee is appointed by the Board of Governors under Section 43(1) "for the purposes of exercising on behalf of the Commissioners such functions as the Board may assign to them from time to time in relation to redundant buildings and the preparation of redundancy schemes ...... ". Its current terms of reference are attached as Annex 1 and identify those classes of business which the Committee is authorised to do and complete on behalf of the Board and those which it is to consider and report to the Board. (In practice very few matters are referred to the Board.) 4. In carrying out these responsibilities the Commissioners are assisted by the advice of their statutory advisers, the Advisory Board for Redundant Churches (AB) on historical, archaeological, architectural and aesthetic matters. However, a final decision on the future of a building rests with the Commissioners who may approve a particular course of action notwithstanding the contrary advice of the AB.

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USE SEEKING

5. It is the sole duty of the diocesan redundant churches uses committee (DRCUC) to make every endeavour to find suitable alternative uses for redundant churches in its diocese. Guidance is provided in the Pastoral Measure Code of Recommended Practice. The DRCUC will recommend acceptance of a proposed use to the Commissioners or report the failure of the outcome of its efforts to find a use; it has no power to dispose of the property itself. 6. The Commissioners need to take a prima facie view on the suitability of the proposed use(s) and consult the bishop before publishing a draft redundancy scheme. These matters are normally considered by the Redundant Churches Division under delegated powers. However, the Committee will be involved if (i) structural alterations facilitating the use are opposed by the AB; (ii) the use itself is potentially contentious; or (iii) freehold disposal of a highly listed building is proposed. 7. Where a suitable alternative use has been found, the draft scheme provides for appropriation of the building and part or all of the annexed land to such use(s) as are specified or generally described in the draft scheme, and empowers the DBF to use, hold, let or license the property, or the Commissioners to sell or give it, for such purpose(s). Agreement to publish a draft scheme is subject to consideration of any representations made against the scheme and compliance with the remaining Pastoral Measure requirements if the scheme proceeds. The Committee may, in agreeing to the preparation of a scheme, require inclusion of particular covenants in any eventual transfer or lease. 8. The secular planning legislation provides no ecclesiastical exemption from development control (i.e. planning permission) nor listed building and conservation area controls in respect of new uses for redundant churches. A scheme authorising disposal for a new use can only be implemented if the necessary secular consents are in place. 9. Under Section 42, the Commissioners may at any time require a DRCUC to make a report to them in respect of a particular redundant building, and/or may themselves take on the duty of seeking a new use in consultation with the DRCUC. (The latter power has, in practice, only been exercised by consent.) If the Commissioners consider that the search for a new use has not been exhausted, they may ask the DRCUC to make further efforts or promote round-table discussions to facilitate the use seeking process. 10. From time to time uses fail in cases where the diocese has leased the property, so retaining the freehold, and these properties may be subject to amending schemes. Where the freehold of the property has been disposed of, it is outside the ambit of the Measure, but the Commissioners may retain an interest in it through covenants imposed in the transfer. Breaches (of) and possible releases of or variations to these may arise.
DETERMINING THE FUTURE OF A BUILDING WHERE NO USE CAN BE FOUND

11.

If no alternative use or uses appearing to the Commissioners to be suitable can

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be found, and it does not seem justified to prolong the process then the Commissioners, after consulting the AB, have to decide between (i) vesting the building in the CCT for preservation or (ii) demolition. In cases where the evidence strongly points to either remaining option this can be considered after a minimum period of six months following redundancy (or earlier in the case of demolition, if the AB has certified that demolition would not, in its view, be objectionable). 12. The Commissioners are required normally to prepare a draft scheme providing for the future of the redundant building not later than three years after the declaration of redundancy. This period can only be extended for a further minimum period or periods if it seems reasonable to the Commissioners to do so after consultation with the DBF and with the consent of the bishop. Preservation by the CCT 13. Before considering any case for vesting the Commissioners need first to be satisfied that no suitable use has been identified or is likely to be forthcoming. Under Section 51 (1)(b) a draft scheme may provide for care and maintenance of a redundant church by the CCT "where it appears to the Commissioners:(i) after consultation with the Advisory Board that the building is of such historic and archaeological interest or architectural quality that it ought to be preserved in the interests of the nation and the Church of England; and that the CCT will have the resources to meet the cost of repairing and maintaining it".

(ii)

The Commissioners may on the same grounds agree in principle under Section 47(2) to vest a church in the CCT directly on redundancy where they are satisfied that no suitable alternative use will be available and any other criteria from time to time established by the Committee in relation to properties vesting in the CCT have been met. 14. A range of considerations, mainly architectural, historical and financial, but also pastoral and practical, will be relevant when considering the case for vesting:(i) Historic and Archaeological Interest and Architectural Quality: The Committee has to satisfy itself as to the sufficiency of the historic and archaeological interest or the architectural quality of the building. The views of the AB should normally carry compelling weight although the final decision is the Committee's. The AB judges each case on its merits, identifying churches it deems worthy of vesting by assessing first their interest and quality, and secondly their overall importance, but cannot offer advice in terms of prioritising churches for preservation. Financial factors: Under section 44 (9)(A), the CCT has a duty to provide the Commissioners and the AB with such information and advice as they may, from time and time, require about:-

(ii)

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 the CCT's financial position generally; and  the estimated cost of repairing and thereafter maintaining any church or part of a church which is under consideration for vesting in the CCT.

The Committee need to take into account not only the cost of vesting an individual church, but also the broader implications for the CCT's resources and the potential for vesting other buildings in the triennial funding period concerned. This is in the context of the total budget allocated by the CCT for new vestings in the triennium, the amount already committed for this purpose, and the likely timing of expenditure. Knowledge of other potential candidates for vesting helps the Committee keep under review the broader question of whether vestings early on of, sometimes, borderline cases may preclude vestings of more worthy cases later. In the past, where there have been financial pressures on the CCT, the Committee has considered the competing claims of buildings in periodic batches, in order to prioritise suitable candidates. 15. The Commissioners' final say on vesting decisions is subject, in practice, to the arrangements agreed with the Government in respect of non-statutory public inquiries into proposed demolitions (see Para. 18). The Commissioners have undertaken to accept a recommendation from the Secretary of State, after such an inquiry, that a church is of sufficient importance to be vested in the CCT. 16. A scheme vesting a redundant church in the CCT usually includes its contents, and may also vest some or all of the annexed land. In cases of dispute it is for the Commissioners to decide whether such contents or land should be included in the scheme. A decision to include clauses in a draft scheme providing for vesting is subject to consideration of any representations against the draft scheme. Demolition 17. Where no suitable alternative use is available, and if vesting in the CCT is not considered appropriate, publication of a draft demolition scheme is the only remaining option. (A fourth available option of long-term vesting in the Diocesan Board of Finance has not proved a desirable expedient). While the Committee takes a prima facie view before authorising publication of a demolition scheme, this may reflect a range of positions from seeing demolition as likely, sensible and desirable, to seeing publication of the draft scheme primarily as a helpful stimulus towards solving the church's future in some less drastic way. The Committee may choose to adopt a twin track approach, for example publishing a draft demolition scheme while at the same time supporting the diocese in embarking on a final period of marketing. 18. Partial or total demolition under a Pastoral Measure scheme is exempt from normal listed building and conservation area controls by specific provision respectively in and under the Planning (Listed Building and Conservation Areas) Act 1990. However, this exemption is weakened by the non-statutory inquiry arrangement whereby if a national amenity society, English Heritage, the local planning authority, or the AB object to the proposed demolition of a listed church or

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an unlisted church in a conservation area, and the Commissioners are minded to proceed with demolition, they will ask the Secretary of State for the Environment, Transport and the Regions whether he wishes to hold a non-statutory local inquiry or informal hearing. The Commissioners have undertaken to accept the Secretary of State's recommendations arising from any such inquiry or hearing.
ADJUDICATING ON REPRESENTATIONS

19. Publication of a draft scheme gives the statutory interested parties (and anyone else who may wish to do so) an opportunity to make representations to the Commissioners for or against the draft scheme. Objections to preservation are very rare, while objections to a new use often reflect an attempt to re-run the secular planning process. However, objections may also reflect pastoral issues and where they refer to use for non-Christian religious purposes the Committee has to consult the Board of Governors before considering them. In fact, the majority of adverse representations has to date arisen in respect of demolition schemes, where the arrangements for non-statutory inquiries outlined above may come into force. Otherwise there is no appeal beyond the Commissioners in respect of redundancy schemes. 20. It is the Committee's task (after consultation with the bishop) to consider those representations that are not otherwise resolved, for example through correspondence by officers. Before the Committee considers the paper, the Legal Office of the National Church Institutions will examine the file to ensure that the objectors’ case has not been pre-judged in any way. Occasionally there may be a subcommittee visit, but the issues are usually clear cut and decisions taken on the paperwork. There is no explicit guidance in the Measure as to the criteria by which the Commissioners should judge the representations. Each case is considered on its merits, taking into account the balance between all relevant factors, architectural and historical/archaeological, financial, pastoral and/or practical. The Committee may decide not to proceed with the draft scheme, or amend it, or allow it to proceed in its original form. Cogent reasons for the Committee's decision should be given. 21. Anyone making a representation in respect of a draft scheme is sent the exchange of correspondence with the bishop and may comment further. He or she also has the right to attend and (potentially) speak at the meeting of the RCC considering the case. 22. Draft pastoral schemes under Sections 46 and 47 provide at the same time for (i) the church to be declared redundant and (ii) its future to be settled. Depending on the nature of representations received, these will be considered by either the Pastoral Committee, or the Redundant Churches Committee, or both if both the proposed redundancy and the proposed future of the building are opposed. Essentially the consent of both (the Pastoral Committee to the declaration of redundancy and the RCC to the new future) is required for the scheme to be taken forward.
REPRESENTATIONS AND LEAVE TO APPEAL

23. Where a pastoral scheme proceeds after consideration of a representation against it, the objector has the right to seek leave to appeal against the Commissioners'

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decision to the Judicial Committee of the Privy Council. Provisions dealing with the future of redundant churches made under Sections 46 or 47 may, therefore, be subject to such an appeal. In earlier Judgements delivered by the Judicial Committee of the Privy Council, their Lordships have made it clear that in general "they will not, unless for irregularity of procedure, for excess of jurisdiction or on cogent evidence of erroneous judgement, refuse to confirm a pastoral scheme" (Holy Trinity Birkenhead PCC v the Church Commissioners May 1974). 24. Before agreeing that a pastoral or redundancy scheme might proceed after considering an adverse representation or before deciding to defend an appeal made by a disaffected representor (if leave were granted for such an appeal), the Commissioners need to be satisfied that a case has been handled in accordance with (a) the procedures laid down by the Pastoral Measure and (b) the best principles of administrative practice and law. Judicial Review and Administrative Law 25. In considering representations the Commissioners have a duty to the public and not just those who make representations. Judicial Review is not concerned with the merits of a decision (unless it is irrational) but the process by which the decision was made. The grounds for an action have been classed as illegality, irrationality and procedural impropriety. The Human Rights Act 1998 is now also a factor, with any Court being under a positive duty to give effect to the European Convention on Human Rights. Illegality The decision makers must understand correctly the law that regulates their decision and must give effect to it. An action claimed to be ultra vires or an abuse of power would provide material for a Review. Irrationality This is the test of reasonableness. A Review could only succeed on this count if it could be demonstrated that the decision was one which no reasonable tribunal could have reached on the information before it. Procedural Impropriety This covers a variety of cases, most importantly those which involve a breach of "natural justice". There is no universal definition of this expression, but it is generally understood to mean a duty to act fairly - that is to arrive at a decision fairly, not necessarily to arrive at a fair decision. This would include the principles of listening to both sides of the argument and not being a judge of one's own cause. The “right to a fair trial” under the Human Rights Act reinforces this.
GENERAL

26. It would be advisable for any member of the Committee with any personal connections (present or past, however tenuous) with any case brought to the

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Committee for consideration to identify any such connections at the relevant meetings. It is ultimately for the individual concerned to decide what is the proper course of action but the Chairman and officers are happy to advise bearing in mind, inter alia, that if the individual does not follow good practice and his or her action is called into question, the whole decision-making process in the case could be called into question. Action might involve taking no part in the discussions and abstaining in the vote or, if the connection is a substantial one, leaving the meeting room for the duration of the agenda item. 27. The test is not so much whether the individual feels his or her judgement on the case is prejudiced by a connection or whether the rest of the Committee would feel inhibited by his or her continued presence. Rather it is whether 'the man in the street' might reasonably be concerned on these issues. For example, any member of a DRCUC or any body or group with a potential interest in acquiring a redundant church should declare that interest when a case involving their committee or group is under consideration and should take no part in any discussion or vote. Similarly anyone who is a member of or has a relationship with any of the central church bodies, secular bodies or national amenity societies should consider in particular cases or in policy discussions whether they have a relevant interest to declare. There may be circumstances where it would be appropriate for the individual to leave the room when the matter in question is under substantive discussion. 28. Members of the Committee may be approached from time to time by interested parties and others on contentious cases that are shortly to come before them or might do so. Experienced Committee members may feel able to give those who contact them useful information on the procedures, particularly by reference to the Code of Recommended Practice. However, it is important that any response should not be capable of interpretation as adopting any particular point of view on the merits of any case. Members need to feel genuinely uncommitted on each case up to the point at which, having read, discussed and considered in Committee all the arguments, they vote. 29. Where they have been lobbied, particularly if they feel concerns about the manner or volume of the lobbying, members should report this (under the agenda item 'Declarations of interest') when the cases come before Committee. In any event there may well be situations when they prefer to refer those who contact them to the Pastoral and Redundant Churches Secretary for a reply rather than deal with it themselves. 30. These general comments are tailored to the work of the Redundant Churches Committee. In addition, members need to observe the protocols concerning the Code of Conduct and Register of Interests which were adopted by the Commissioners in 2000.
FINANCIAL MATTERS

Funding the CCT 31. The CCT is funded jointly by the Government (70%) and the Church (30%). For each funding period the CCT prepares its budget bid taking into account the likely

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flow of new vestings over the next three-year funding period and repairs to churches already in its care. The budget consultation process then includes consideration both for realism and affordability from both church and state standpoints. The CCT's actual budget depends on the proposed Department for Culture, Media and Sport (DCMS) grant and the Church's own contribution based on the 70:30 sharing arrangement. Authorisation for the Church's payment for each funding period is required from the General Synod under Section 52. The Committee considers the proposed budget and recommends the proportionate basis for meeting the Church's share from sale proceeds and Commissioners' grant. It prepares the basis of a report for the Synod for consideration by the Board of Governors. Redundant Churches Temporary Maintenance Account (RCTMA) 32. The Committee administers the RCTMA with responsibility for the rules governing its operation (subject to the provisions of Section 78A of the Measure) and encouraging the most effective use of the account. COMMITTEE’S TERMS OF REFERENCE 33. These were agreed in their present form by the Board of Governors in 1999 and are attached. It will be seen that the Committee has power to do and complete all matters assigned to it except (1) any matters involving legislation; (2) any matters of general policy; (3) adverse representations regarding non-Christian religious use of a redundant church; and (4) any other matters where the Committee so wishes. In these cases the Committee has to report to the Board.

PAUL LEWIS Pastoral and Redundant Churches Secretary SUE JONES Official Solicitor

1 Millbank London SW1P 3JZ 17 April 2001. (Last updated December 2005)

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Annex 1

REDUNDANT CHURCHES COMMITTEE
TERMS OF REFERENCE 1. The Redundant Churches Committee shall comprise the Third Church Estates Commissioner (who shall chair meetings of the Committee), four members of the clergy, four other lay persons and any such additional members as the Board shall from time to time appoint. A majority of the members of the Committee shall be Commissioners. The Secretary of State for Culture, Media & Sport shall nominate one member of the Committee. The Committee shall be responsible for:(i) (ii) subject to (ii) below, the functions of the Commissioners relating to redundant churches; any financial matters (including the administration of any schemes of grants or loans) assigned to the Committee by the Board subject to such conditions as the Board may impose.

2.

3.

(a) Subject to (b) below, the Committee shall have power to do and complete all the matters assigned to them under paragraph 2, except the following matters where the Committee shall consider and report to the Board:(i) (ii) (iii) (b) any matters involving new legislation; any matters of general policy; and any other matters where the Committee so wish. Where any representation by way of objection is received by the Commissioners with respect to a draft redundancy scheme or to provisions relating to redundant churches in a draft pastoral scheme where the use of a redundant church for non-Christian religious purposes is proposed;, the Committee shall – before considering the representation, consult the Board; in determining whether the scheme should proceed notwithstanding the representation, pay particular regard to the views expressed by the Board; and report its decision to the next following meeting of the Board.

(i) (ii)

(iii)

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4. 5.

The Committee shall submit to the Board each year a report of its work during the year. The Committee shall have a quorum of one-third (rounded up to the nearest whole number) of its membership and shall include one Commissioner member.

Agreed by the Board of Governors on 23 September 2004 and amended on 19 May 2005.

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