LEEDS City Council had acted with “ineptitude, discourtesy, and illegality” when it erected a fence along the perimeter of the closed churchyard of St Peter’s, Bramley, without first seeking a faculty or planning consent, the Consistory Court of the diocese said when hearing an application for a confirmatory faculty.
Closed churchyards remained subject to the faculty jurisdiction, and putting up a fence on land subject to the jurisdiction required a faculty, and also secular consents, such as planning permission, the court ruled.
St Peter’s is a Grade II listed building in the suburbs of Leeds. It sits in a churchyard that was closed by Order in Council in 1987; so the duty of repair and maintenance for the churchyard passed to Leeds City Council. In about early August last year, the council’s Parks and Countryside officers were alerted to youths standing on the boundary wall of St Peter’s and throwing stones on to passing vehicles.
Staff from the Parks and Countryside service visited the site and tidied it up by removing litter. It then appeared that drugs had been used in the area. In late August, a fence was erected for which a faculty had not been obtained.
About the same time, the PCC was already consulting a crime-prevention design architect, because a structure in the churchyard, named as a former bell-tower and possibly once a church spire, was noted as a gathering point for young people, and it was considered potentially unsafe.
The PCC was considering the architect’s suggestions, which included the possibility of a fence, albeit of a type and in a position different from that which, unknown to the PCC, the council was to erect.
It came as a surprise to the PCC when it was alerted to the fact that workmen were in the course of erecting a fence in the churchyard. But, despite the protestations of the PCC and a member of the DAC, the workmen were ordered by an officer of the council to proceed with building the fence.
On 26 September, the PCC held an extraordinary meeting and resolved unanimously that it “offers no objection” to the fence, and the council sought a confirmatory faculty for its retention. When a confirmatory faculty was sought, the test that the Consistory Court had to apply was whether a faculty would have been granted had one been sought prospectively.
The Chancellor of the diocese of Leeds, the Worshipful Mark Hill QC, said that he took “a dim view” of the council’s conduct, notwithstanding it might have “originally been animated by an understandable sense of civic duty”. The council’s “endemic ignorance of faculty law, process, and procedure [was] eye-watering, and compounded by a co-extensive lack of comprehension of the requirements of secular planning law for which it [was] itself responsible”.
He said, however, that it was obvious from the evidence that the council had acted with the best of intentions, and out of legitimate concern for public safety. In doing so, the council was motivated by a desire to avoid injury and loss of life. The council had also offered a full and unconditional apology to the court for the “inconvenience” and “upset” caused, and for breaching ecclesiastical law as well as secular planning control, which it administered and enforced itself.
It was also evident that the fence had substantially addressed the danger to the safety of the public, and there had been no further complaints since it had been erected. Although the fence might not be to everyone’s taste, or in the ideal position, the DAC was of the opinion that it was “aesthetically uncontentious” and “does not conflict with the sacred status of the churchyard, or give any other cause for concern”.
In view of some £2300 of public money expended in the erection of the fence, counsel for Leeds council submitted that it would be churlish and wasteful to compel its removal when some other equally costly solution would still be required and resources were scarce.
A confirmatory faculty was therefore issued by the Chancellor, on condition that the council acted expeditiously in regularising the planning position, and lodged a copy of the necessary consent at the diocesan registry. The court costs were to be borne by Leeds council.