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Builder may face bill over roof

12 October 2012

Commissary General: Morag Ellis QC, presiding in the Eastry case

Commissary General: Morag Ellis QC, presiding in the Eastry case

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.

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