Pastoral Measure Code of Practice
December 2009
SECTION 16 - TRANSFER OF THE PROPERTY
This section outlines the procedure for dealing with the disposal of a closed
church building and/or site, highlighting in particular the inclusion of
covenants in any conveyance/ lease as a means of protecting the Church's
continuing interest in the property.
16.1 - 16.6
16.1 - 16.2
16.3
16.4
16.5 - 16.6
Covenants
Purpose of covenants
Enforcement
Covenants applicable on disposal of a closed church building
Covenants applicable to the cleared site of a demolished closed church
building
16.7 - 16.9
16.7 - 16.8
16.8A
16.9
Sale Proceeds and Lease Premiums
Under Section 52
Costs allowable against sale proceeds
Under Section 46
16.10 - 16.15 Disposal of Sites
16.10-16.11
General
16.12-16.13
Disposal of sites of churches demolished otherwise than under Part III
of the Measure
16.14-16.15
Application of sale proceeds
Pastoral Measure Code of Practice
December 2009
Covenants
In disposing of a church building closed for regular public worship for a
suitable alternative use the Commissioners/DBF include a covenant to
uphold the authorised use for the property. Other covenants protect
against, inter alia, unauthorised structural alterations or disturbance of
human remains or tombstones, monuments and memorials. Such covenants
remain in force irrespective of changes in ownership of the property
Purpose of covenants
16.1
Most closed church buildings will still look like churches and be associated by the
public with their past even when they are used for other purposes. Covenants are
included in any conveyance or lease to:





uphold and support the authorised use (and prevent undesirable uses)
protect the church building/site
reassure local people and provide for access to tend graves at agreed time
prevent unauthorised demolition or alterations to the fabric
retain potential interest, in certain circumstances, in case of a more profitable
future use.
The imposition of covenants is in both the public and the Church's interest.
16.2
In any provisional negotiations for sale or lease the diocese or its agents should, at an
early stage, make clear to a prospective user the extent and nature of the covenants
likely to be imposed. Failure to do so could lead the prospective user to reconsider his
intentions at an advanced stage in proceedings or significantly delay bringing a sale or
lease to completion.
Enforcement
16.3
Section 62 provides that these covenants are enforceable as though the
Commissioners or the DBF are the owners of adjacent land and the covenants are for
the benefit of that land, and also as if covenants of a positive character are negative.
Accordingly, covenants imposed on a freehold disposal under the Measure will be
shown in the Charges Register relating to the title and will bind future owners of the
property concerned. Unlike other restrictive covenants relating to land, they cannot
(under express provision in the Measure) be varied or released on an application to the
Lands Tribunal: this gives them unusual effectiveness.
Covenants applicable on disposal of a closed church building
16.4
The recommended wording for standard covenants is provided in the summary at the
end of this sub-section. A brief explanatory note including where each is applicable is
provided below:
Pastoral Measure Code of Practice
(a)
December 2009
The user covenant
The scheme provides for appropriation to a use which is specified or generally
described. A restrictive covenant to ensure compliance with this provision and
for ancillary matters must be included in leases and conveyances of church
buildings closed for regular public worship. It should follow precisely the user
clause in the scheme but, where the clause is capable of wide interpretation
(e.g. "civic, cultural or community purposes"), it may be appropriate to
include additional provision, either by prohibiting the use of the building for
specified purposes, or by providing for any particular use to be previously
agreed by the bishop.
(b)
No illegal, immoral or offensive use
This prevents the property being used for any use that may be illegal, immoral
or offensive to the principles and practice of the Christian faith. In light of the
implications of the Human Rights Act 1998, Counsel advised that, in order to
provide an acceptable level of objectivity, a group of people should be given
the role of forming an opinion on whether uses were offensive to the Christian
faith. The Commissioners have determined that the group should comprise the
diocesan bishop, the dean of the Cathedral and the Archdeacon of the area in
which the property is situated. A majority of two to one will be decisive.
(c)
The non-demolition covenant
This prevents the owner, once he has acquired the building, from nullifying
the use by demolition. (Where architectural alterations have been approved by
the Commissioners, such approval will usually be regarded as permitting
demolition to the extent necessary to carry out the alterations, provided that
these are carried out in accordance with the approved plans). Approval is
additional to listed building consent where required. Part of the purpose of the
covenant is that it also gives the Church an opportunity in return for lifting the
covenant in appropriate circumstances to seek a share of any increased value a
cleared site may have over the sale price for the building.
(d)
Non-disturbance of human remains
This covenant is essential where there are burials within the property to be
disposed of and the MoJ has made an order dispensing with the requirement to
remove the human remains.
(e)
Erection of a notice board
This draws the attention of members of the public to the change of use and the
fact that the building is no longer a public place of worship. In view of the
characteristic appearance of most church buildings, the new use should be
clearly and conspicuously indicated. The notice should be of a size and in a
position appropriate to the building. The wording provided on the board
should include details of the new and former use together with any
Pastoral Measure Code of Practice
December 2009
arrangements agreed for public access to the building and/or former
churchyard.
(f)
The repair covenant
This seeks to ensure the preservation of the building in a reasonable state of
repair. The period of 6 months is a suggested maximum although this can be
increased as appropriate. More detailed clauses may be included in a lease to
ensure the future upkeep of the building to whatever standard is judged
appropriate, but stringent covenants are only likely to be of value if effective
arrangements can be made to police them.
(g)
Completion of conversion work within a specified period
Where alterations are required this covenant should be included to ensure that
the approved changes necessary to facilitate the new use are undertaken within
a reasonable period of time. It is suggested that the maximum time given for
completion of any conversion works be 2 years, although extra time may be
allowed if requested.
(h)
Architectural or structural changes
Where a building is proposed to be altered to facilitate the new use, the CBC
will be consulted under s.50(2)(b). In such cases approval of the plans
identified by reference number and date should usually be given by the
Commissioners (or DBF) before the conveyance (or lease) is completed. Such
consent is additional to securing planning permission and listed building
consent if appropriate. If no alterations are planned, an absolute covenant
prohibiting any alterations should be included.
(i)
Non-disturbance of tombstones etc
This covenant is applicable where there are tombstones, monuments or
memorials situated within the property to be disposed of and where the bishop
has directed that all or some of them should remain undisturbed.
(j)
Public access to the building/churchyard
This covenant should be included where the building is listed Grade A or I or
is otherwise highly listed because of some special feature(s). The form of such
access, whether at specified times or by prior written application, should be
agreed before completion and the details should be displayed on the notice
board. Public access should also be included if EH (or the Heritage Lottery
Fund) have grant aided the church over the past 10 years. This covenant is also
usually applicable where there are graves or memorials in the former
churchyard which relatives or others wish to continue to tend or visit and also
where there may be the grave of some well-known person.
Pastoral Measure Code of Practice
(k)
December 2009
Boundaries
This covenant is included where part only of the churchyard is being disposed
of and the new owner is to put up a boundary structure between the property
and the retained churchyard.
(l)
Inappropriate planting schemes
This covenant protects against the risk of structural damage caused by
inappropriate planting schemes in former churchyard land, e.g. the planting of
strong growing trees and shrubs too close to buildings or churchyard walls.
The height and distance measurements may be varied to meet a particular
need.
(m)
Access of Commissioners’ surveyor
Where covenants relating to works are included in the transfer, this covenant
needs to be included too, to ensure that the Commissioners can have access to
check compliance.
(n)
Other special covenants
The DMPC should ascertain at an early stage whether circumstances
necessitate the inclusion of any special covenants to protect particular rights or
amenities. In lease cases the lessee should assume repairing and insuring
liabilities not only to ensure that the building is properly maintained but to
absolve the DBF, as lessor, from any residual liability. For buildings of special
architectural or historic interest this should amount to a full repairing covenant
and a covenant to insure the full cost of reinstating the building. It may also be
desirable, particularly where the use is unusual, to prohibit assignment of the
lease without the lessor's consent.
Where only part of the churchyard is to be disposed of, access over, and
services to, retained land will usually be dealt with by exceptions and
reservations, rather than by covenants.
Pastoral Measure Code of Practice
December 2009
Covenants to be included in the Transfer of the [site of] the
Closed Church of____________________
[To be tailored to meet the requirements of the individual case]
(i)
As provided by Section 62(1) of the Pastoral Measure 1983 the following covenants on the
part of the Transferee shall be enforceable as if the Transferor were the owner of the adjacent
land and the covenants were expressed to be entered into for the benefit of that adjacent land
and (in the case of covenants of a positive nature) as if they were negative.
(ii)
The burden of the following covenants is intended to bind and binds each and every part of
the property into whosesoever hands it may come.
(iii)
A covenant not to do any act or thing includes an obligation not to permit or suffer that act of
thing to be done by another person.
(iv)
The Transferee [jointly and severally] covenants with the Transferor:
(aa)* The wording
should follow the
user clause of the
relevant Order in
Council/scheme.
(aa)
Not to use the property for any purpose other than as/for [*……………………..] and
ancillary purposes;
OR
(aa)
Site disposal where
no use specified in
scheme and/or
there is adjacent
church property.
Not at any time to use or permit to be used the said property or any part
thereof or any buildings erected thereon as or for:(i)
(ii)
(iii)
(bb)
a place of worship school mission room or institute for or under the control of
any religious body
any illegal or immoral purpose
a theatre cinema betting shop sex shop funfair dance hall or other place of
entertainments or for sport or amusement or any purpose connected with the
same
Not to use the property for any illegal or immoral purpose or for any purpose which
may be or become a nuisance annoyance or disturbance to the Transferor or which
shall (in the opinion of at least two of the following: the bishop for the time being of
the diocese in which the property is situated, the dean for the time being of the
cathedral which is the seat of the bishop and the archdeacon for the time being of the
archdeaconry in which the Property is situated) be offensive to the principles and
practice of the Christian faith;
AND/OR
(bb)
(bb) Site
disposal where
there is
adjacent
church
property.
Not at any time to allow permit or suffer any act deed matter or thing in or
upon the property or any part thereof or in upon the buildings erected
thereon which may be or become a nuisance annoyance or disturbance to
the incumbent for the time being of the benefice of ………………………..
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December 2009
or which may tend to depreciate or lessen the value of the adjoining and
neighbouring property belonging to the said benefice;
(cc) Exclude
in site
disposal cases
(ee) This clause
may be omitted if
the transferee
requests. *Delete
as appropriate –
see (ll).
(ff) A maximum
of 6 months is
suggested but
may be extended
upon request
(gg) A
maximum of 2
years is
suggested but
may be
extended upon
request.
(cc)
Not to demolish any building nor to erect any new or additional structure or building
on the property;
(dd)
Not to disturb any human remains interred in the property;
[(ee)
To ensure the maintenance in a prominent position of a notice board of a size and
type to be approved in writing by the Transferor indicating that the property is now
used for the purpose stated in subclause (aa) *[and displaying the conditions of access
for people wishing [to visit the former church or] to tend particular graves in the
property;]
[(ff)
Within [………………] months of today’s date to carry out to the satisfaction of the
Transferor’s surveyor the works necessary to make all buildings on the property wind
– and watertight and thereafter to keep such buildings in the like condition and to
such satisfaction;]
[(gg)
Within [……………] years of today’s date to carry out and complete to the
satisfaction of the Transferor’s surveyor the works shown on the plans numbered
……………….. already submitted to and approved in writing by the Transferor;]
[(hh)
Not to make any architectural or structural changes (including, for the avoidance of
doubt, any alteration to or the removal of any stained glass) in any building on the
property except in accordance with plans previously submitted to and approved in
writing by the Transferor;]
OR
(hh) Site
disposal
where there
is adjacent
property.
(jj) Applicable where
the Bishop has directed
that the tombstones,
monuments and
memorials should
remain in situ in the
building or churchyard.
[(hh)
Not to erect any building on the property or any part thereof except in accordance
with plans previously submitted to and approved in writing by the Transferor (such
approval not to be unreasonably withheld or delayed);]
[(jj)
Not to damage any tombstone monument or memorial in the property nor, without the
Transferor’s consent, to remove or disturb any such [*after consultation with the
Commonwealth War Graves Commission];]
[(kk)
Not to permit or allow use of the property for the solemnization of marriages or as a
place at which two people may register as civil partners of each other either under
section 26(1)(bb) of the Marriage Act 1949 or under section 6(3A)(a) of the Civil
Partnerships Act 2004 or under any other legislation for the time being in force
amending or replacing the said Acts;
[(ll)
To give access at reasonable times to all persons wishing [to visit the former church
or] to tend particular graves in the property, provided such persons have made prior
written application to the Transferee;] [and to keep unobstructed by undergrowth
overgrowth rubbish or other obstacles the access to any war grave];]
*Omit words in square
brackets where there
are no CWGC
memorials to remain in
situ.
(ll) Applicable
where the building
is listed Grade A or
I or there are
graves in the
former churchyard
which a relative or
other person wishes
to tend or visit and
also where there
may be the grave of
some well known
person.
[(mm) Within 3 months of today’s date to erect to the reasonable satisfaction of the
Transferor’s Surveyor [a stockproof post and wire fencing] along the
[……..…………..] boundaries of the property and thereafter to maintain the same in
good repair and condition to the reasonable satisfaction of the parochial church
council for the parish in which the property is for the time being situated;]
Pastoral Measure Code of Practice
(mm)/(nn)
Applicable where
the diocese
wishes this to be
included.
The height and
distance
measurements
may be varied to
the particular
needs of the case.
December 2009
[(nn)
Not to grow anything on the property which may weaken or undermine the structure
of any building or wall on the property nor to allow any trees or shrubs within 3
metres of any such building or wall to grow to a height greater than 1.5 metres;]
[(oo)
To give access at reasonable times and on reasonable notice to the
Transferor’s surveyor to enable him to inspect the works undertaken by the
Transferee in accordance with these covenants;]
Pastoral Measure Code of Practice
December 2009
Covenants applicable to the cleared site of a demolished closed church building
16.5
When considering the disposal of a cleared site the DBF will need to consider whether
there is a need to include special covenants. In practice, these are usually only
relevant if the site adjoins a parsonage or other church property, where some control
over use of the site is desirable.
16.6
Relevant covenants in such circumstances are:
(a)
Not at any time to use or permit to be used the said property or any part
thereof or any buildings erected thereon as or for:(i)
a place of worship school mission room or institute for or under the
control of any religious body
(ii)
any illegal or immoral purpose or for any purpose which may be or
become a nuisance annoyance or disturbance to the Transferor or
which shall (in the opinion of at least two of the following: the bishop
for the time being of the diocese in which the property is situated, the
dean for the time being of the cathedral which is the seat of the bishop
and the archdeacon for the time being of the archdeaconry in which the
property is situated) be offensive to the principles and practice of the
Christian faith
(iii)
a theatre cinema betting shop sex shop funfair dance hall or other place
of entertainments or for sport or amusement or any purpose connected
with the same
(iv)
premises licensed for the sale of alcoholic drinks or any purpose
connected with the same.
(b)
Not at any time to allow permit or suffer any act deed matter or thing in or
upon the property or any part thereof or in or upon the buildings erected
thereon which may be or become a nuisance annoyance or disturbance to the
/for the time being of the benefice of
or which may tend to depreciate or lessen the value of the adjoining and
neighbouring property belonging to the said
.
(c)
No building shall be erected on the property hereby conveyed or any part
thereof unless the plans of the same have first been approved by the
Commissioners in writing (such approval not to be unreasonably withheld or
delayed).
Pastoral Measure Code of Practice
December 2009
Sale Proceeds and Lease Premiums
The net proceeds of sales and lease premiums arising from the disposal of
church buildings closed for regular public worship are paid to the
Commissioners under s.51(5) and apportioned in accordance with s.52 of
the Measure (s.51(5) provides for two-thirds to go to the DPA; s.52
provides for the application of the remaining one-third). Separate provision
is made for the application of proceeds arising from cases pursued under
s.46.
Under Section 52
52
16.7
(PM 1983)
Section 52 of the Measure provides for the application of the net proceeds from the
disposal of closed church buildings. The relevant DPA receives two-thirds of the net
proceeds of sales and lease premiums while the first call on the remaining one-third is
the Commissioners' agreed contribution towards financing the CCT in the current
funding period. The Commissioners are empowered to allocate from time to time any
surplus to the TMA, in such amounts as they may determine, with any balance
divided between some or all of the DPAs, again as the Commissioners may
determine. There has been no such residual balance for some years. Rents arising
from leases or licences are credited direct to the DPA and are not apportioned.
16.8
Under the arrangements for devolved DPAs, the DBF should, in the case of lease
premiums, provide the Commissioners with a full statement of DPA expenditure on
the closed church building when paying over any net premium for apportionment.
Any costs charged by the Commissioners to the DPA funds held centrally will need to
be taken into account prior to apportionment. For sales the Commissioners will
prepare a final statement of account and, having first reimbursed the DPA for costs
incurred by the diocese in the disposal of the property, and the TMA for any payments
made towards the diocese’s expenditure on the building, will then apportion the net
proceeds in accordance with the Measure.
Costs allowable against sale proceeds
16.8A The Measure allows for the reimbursement from the proceeds arising from the
disposal of a closed church building or its site of any costs incurred by the DBF,
DMPC and the Commissioners on the property or in furthering its disposal or on the
demolition of a former church. The Commissioners have determined that the
following costs may be reimbursed from sale proceeds or a lease premium:







newspaper notices
agents’ fees
minor repairs
routine maintenance (replacing slipped tiles, clearing rainwater goods,
vegetation etc)
security
insurance
architect’s fees in connection with repairs/maintenance
87(3)
(PM 1983)
Pastoral Measure Code of Practice


December 2009
Land Registry charges and other costs incurred in securing title to property
cost of demolition/site clearance.
In certain circumstances, costs arising from a Section 106 Agreement, to enable the
alternative use of a former church, may be reimbursed from sale proceeds, if there are
sufficient funds. The Commissioners have also agreed, in principle, funds permitting,
to reimburse grants made by the Wolfson Foundation for the repair of churches after 1
July 2003 although they would not normally expect this to apply if closure for regular
public worship occurs more than 10 years after payment of such a grant. Grants made
under the English Heritage/Heritage Lottery Fund Joint Places of Worship Scheme
may also be subject to repayment from sale proceeds if closure occurs during the
economic life of the grant.
Solicitors’ fees will not normally be allowed as a charge on sale proceeds except
where the diocese’s solicitor acts for the Commissioners. Rent arrears on a failed
lease, and interest thereon, will not be allowed as a charge on sales proceeds.
Dioceses should consult the Commissioners if in doubt as to whether expenditure may
be recouped from sale proceeds.
Under Section 46
16.9
The arrangements for dealing with the proceeds arising from cases pursued under s.46
are set out in 12.12. Where the Commissioners are satisfied of the intention to provide
a new church or place of worship within the benefice of a church which is being or
has been declared closed for regular public worship then the cost of providing the new
building can be a first call upon the net proceeds or premiums arising from the
disposal of the closed church building.
Disposal of Sites
General
16.10 Where a closed church building has been demolished under the Measure (other than
under s.46) the pastoral (church buildings disposal) scheme will generally provide for
the DBF to dispose of the site. Alternatively the Commissioners may be authorised to
deal with the disposal but that will be the exception rather than the rule. If the site is
to be incorporated into the churchyard the Commissioners will prepare the necessary
instrument. Otherwise, the diocese will need to instruct agents to market the site (and
any adjoining land where appropriate) and make a recommendation for disposal
accordingly.
16.11 If human remains and tombstones, monuments or memorials are present the DAC will
need to deal with these in accordance with s.65 and Schedule 6 before disposal can
proceed - see 15.41 to 15.63. If the Commissioners are dealing with the disposal they
will consult the diocese on the need to include any special covenants in the
conveyance or lease, particularly where the site adjoins a parsonage or other church
property - see 16.5 to 16.6.
Pastoral Measure Code of Practice
December 2009
Disposal of sites of churches demolished otherwise than under Part III of the
Measure
54(2)
(PM 1983)
16.12 Under s.54(2) the Commissioners can prepare a pastoral (church buildings disposal)
scheme to deal with the disposal of the site of a church demolished otherwise than
under Part III of the Measure. This includes churches demolished under authority of a
faculty or under superseded legislation which provided for demolition but not disposal
of the site. The scheme can deal with any annexed land at the same time and will
generally authorise the DBF to deal with the disposal.
16.13 See 12.8(ii) for procedure for marketing sites. There is no requirement for either
formal proposals or formal consultations by the diocese, but the views of the
incumbent, who will normally be the owner, should be ascertained. After considering
all offers received the DMPC should make its recommendation to the Commissioners
in the format provided for in Annex 9B. The Agents’ report on marketing and a
summary of all offers received should also be provided. The DMPC should provide an
explanation if the best offer is not recommended. Following completion of the
pastoral (church buildings disposal) scheme, the arrangements for the disposal of the
site will be as set out above.
Application of sale proceeds
16.14 The Commissioners apply the net proceeds of any sale of a site (or net premium on
any lease) authorised by a scheme made under s.54(2) in accordance with s.51(5) and
52, that is two-thirds to the DPA and one-third towards the cost of funding the CCT.
16.15 However, if the Commissioners are satisfied that a replacement church or place of
worship is to be provided within the benefice in which the demolished church was
situated, then the whole of the net proceeds or net premium can be applied towards
the cost of the new building, so far as the money is required, leaving any excess
money to be apportioned in accordance with s.51(5) and 52.