A BUILDER who stripped lead from the roof of the 13th-century
Church of St Mary the Blessed Virgin, in Eastry, Kent, and replaced
it with a synthetic substitute, has been warned that he may have to
refund up to £93,000 to the PCC, after a church court heard that he
carried out the work on the Grade I listed building without a
faculty or planning permission.
The Canterbury Commissary Court, which was held in the church
last week under Commissary General Morag Ellis QC, heard that the
PCC's fabric committee instructed Jay Cross, a builder based in
Folkestone, to strip the remaining lead on the north and south
aisle roofs, and replace it with Ubiflex. A series of lead thefts
had caused significant amounts of water to pour through into the
church, damaging the lime and horse-hair plaster on the walls (
News, 5 October).
Mr Cross told the court that he assumed that a faculty was in
place, because the DAC had emailed the PCC to say that it would
consider an application for the installation of Ubiflex. But, in
questioning, he was unclear whether he had seen that email before
carrying out the works, or only after it was disclosed in
preparation for the Commissary Court hearing.
"I generally don't ask to see a faculty," he said; nor did he
ask clients about faculties and permissions, or use a checklist to
ensure that the necessary consents were in place. He told the court
that he had worked on numerous secular and ecclesiastical listed
buildings, but was not aware that he could face a criminal
prosecution if unauthorised works were carried out to secular
listed buildings.
An inspection carried out before the court hearing revealed that
the Ubiflex on the aisle roofs was showing signs of bunching and
pinching, Tom Foxall, a historic-buildings inspector with English
Heritage, said. "It was not conclusive whether the bunching was due
to the material slipping down the roof slopes, or poor workmanship,
but it calls into question the material's ability to stand the test
of time."
He said that the signs of pinching could have been caused by
footprints or falling tiles. "This is proof that the material isn't
able to withstand the types of impact expected on exposed roofs
such as this."
He said that the "enforcement options" of the Commissary General
"should be used as a proportionate punishment and a form of
appropriate deterrent". He hoped that a restoration order would
achieve that.
The Archdeacon of Ashford, the Ven. Philip Down, had prepared a
draft restoration order, which had been agreed by the parish; but
the Commissary General said that a restoration order, under the
Care of Churches and Ecclesiastical Jurisdiction Measure, was
inappropriate, as this would only allow the roof to be put back to
the condition it was after the lead thefts. "It seems to me to be
utterly undesirable to roll the clock back to that point in
time."
The Archdeacon opposed a confirmatory faculty, because of "the
signals it would give to others considering unlawful works"; and Dr
David Knight, of the C of E's Church Buildings Council, said: "The
council was concerned that a confirmatory faculty shouldn't be seen
as anybody getting away with things." Mr Foxall said that the case
should be disposed of "in such a way that it acts as a
deterrent".
The Commissary General said that, in order to ensure the
"principle of equivalence" with the secular planning system, and
the future of the ecclesiastical exemption, she was required to
consider what she called the "justice" of the case.
"There are persons before the court . . . who have been
committing unlawful acts on the church property. I have the power
to order them to pay some money. We know the works cost around
£93,000, and I have the authority to order an amount between 1p and
£93,000 to be paid by way of restoration."
She said that she would not make personal orders against the
parishioners; but gave Mr Cross a week to make a written submission
about his financial situation, should he wish to do so.
Mrs Ellis said that she had not made up her mind about anything,
but, after open discussions with the parties, she might allow the
Ubiflex to remain on the roof for about five years, to give the
parish time to raise funds and apply for a faculty for a suitable
covering. Her primary duty, she said, was to provide a "legally
secure conclusion".
Judgment is expected by the end of this month.