Flood damage and the faculty jurisdiction

Court decides between conflicting expert advice post-flood remediation

At the end of last year, we posted Guidance to churches on flooding  which reproduced information circulated by the Diocese of York for those whose church is at risk of flooding, or has been flooded. This  included links to the 2-page Checklist for church properties to prepare for flooding and the longer Flooding and Historic Buildings published by Historic England in April 2015. In addition, the CofE has also posted Keeping the water at bay – how churches can adjust to regular flooding.

Our post noted “whilst the issue of flooded churches is outside the normal remit of L&RUK until remediation falls within the faculty jurisdiction, [these] links may be of use to those who have suffered flood damage”. The present post summarizes the concerns on the extent of flood damage that have been raised in Westminster, and a recently published consistory court judgment on two alternative technical solutions that had been presented to the court.


On 14 January, the Bishop of Leeds, the Rt Rev Nick Baines, led the House of Lords debate “To ask Her Majesty’s Government how they intend to review their long term strategy for flood management, particularly in rural areas that do not qualify for large-scale flood defences”, [14 Jan 2016 Vol 768(93) Col 439]. As background, he provided the following data:

“…Around 16,000 properties have been affected in northern England and Scotland. At the end of December, KPMG estimated that the total cost of flood damage would exceed £5 billion. The Association of British Insurers estimates that claims will total £1.3 billion. The average domestic claim will amount to £50,000, up from an average of £31,000 in 2013-14. Around 3,000 families are now living in alternative accommodation while their homes are being repaired. In Calderdale alone, flooding hit 2,500 homes, nine schools and 1,250 businesses, and as many as 40% of those businesses could be uninsured. Infrastructure damage is estimated to be at least £20 million. Damage to homes and businesses also has a knock-on impact on the wider ability of the local economy to recover and function.”

There were other informative contributions from Barbara Young, which included her experience as a former CEO of the Environment Agency, [Col 441], and from Baroness McIntosh on the alternative, but successful approach adopted in Pickering, North Yorkshire, in the avoidance of flooding, [Col 440]. In the House of Commons, on 13 January the Second Church Estates Commissioner, Caroline Spelman, (Meriden, Con), gave written answers to written questions on aspects of flooding within the Diocese of Blackburn from Mark Hendrick (Preston, Lab), [21700 and 21701].

Mrs Spelman stated that within the diocese in question, seven churches and churchyards, the diocesan retreat house at Whalley Abbey and three Church of England primary schools had been damaged by floodwater. Many have also found that the boilers and heating systems have been damaged beyond repair and extensive programmes of works will need to be undertaken to both dry the buildings out and restore or replace furniture, carpets and school materials.

Reports of damage were still being registered across the Dioceses of Blackburn, Carlisle, Manchester, West Yorkshire and the Dales and York, but 129 church properties had already registered substantial damage from the December storms with the Church’s insurers, and this figure was expected to rise. The recovery process is often lengthy and the case of St. Mary Charminster, below, demonstrates that the selection of the best technical solution is not always straightforward.

Re St. Mary Charminster [2016] ECC Sal 1

Serious flood damage may result in the closure of a church for extended periods, and some of those affected by the flooding of the Somerset Levels in the winter of 2013-14 are only just reopening. St. Mary Charminster lies to the east of this area, and its location is such that by a combination of high ground water levels and inundation resulting from a constriction of a nearby bridge on the River Cerne, both the church itself and surrounding properties have been flooded at least ten occasions since 1937, of which six have involved the church itself [2].

In both January and February 2014, serious flooding occurred in this Grade I church, following which the building has been out of use: one of the major reasons for this is the fact that the wood block flooring which covers part of the nave became disturbed to the extent that it is not safe to allow the public to walk on it. Although there are plans to ease the restriction caused by the nearby bridge, one factor resulting in the flooding of the general area, it was recognised that this will not provide a solution for the church. Consequently, whatever repairs and modifications are made to the flooring, they must take account of the fact that there will be more flooding in the future, [4].

The parish proposed to replace the wood block parts of the nave floor with stone, in addition to under-floor heating powered by an air source heat pump, (ASHP). The contentious issue was the form of the insulation beneath the stone floor [8]. The parish, upon the advice of its architect wished to use “closed cell insulation”, manufactured as “Celotex”: this insulation is impervious and will not become water logged [9]. It is also proposed that there should be a “wicking margin” around the stone floor at the walls and pillars, suitably filled, which would allow moisture from under the floor to evaporate without damaging the stone above the floor [10]. This solution proposed by the PCC’s architect was subsequently supported by Historic England.

In its Notification of Advice dated 26.09.2014, the DAC expressed its disagreement with the PCC’s proposal, and in view of its importance of this document, the Chancellor included it full at paragraph 11 of the judgment. The technical issues are beyond the scope of this post, and it is sufficient to note that one of the DAC’s concerns was that the proposed closed-cell insulation would result in the main part of the floor becoming buoyant and being forced upwards by future flood water. However, the DAC’s Notification of Advice did not have the benefit of a site visit, drew upon information from the manufacturer of an alternative system, and was based upon assumptions regarding futures level of the water table  that were questioned as a consequence of subsequent information from the Environment Agency.

At a subsequent “conciliation meeting” at the church attended by two architects of the DAC architects and the PCC’s architectural advisor, the Chancellor suggested that it would assist the petitioners’ case if any church where a similar solution had been used could be found. DAC secretaries nationally were written to and a number of responses received, but these did not yield any further support [15].

The issue before the Chancellor is summarized in paragraph 23:

“At the December 2014 meeting I observed that I was faced with two views, both from highly experienced sources, both put forward in the utmost good faith. On the one hand the church architect could only support closed cell insulation whereas the DAC architects were strongly opposed and preferred open cell. I also observed that because of the difficulty of the problem no-one could be absolutely sure that they were putting forward the correct solution.”

In conclusion, he accepted the proposal put forward by the petitioner’s architect with the modifications suggested by a Chartered Civil Engineer as being appropriate for this church, [26]. Whilst “there can never be absolute certainty when dealing with the fabric of a building such as St Mary’s”, the Chancellor was clear that the petitioners had proved their case upon the balance of probabilities. He was satisfied that: the closed cell insulation would have a similar characteristic to that which has been below the floor for more than 100 years; the wicking margin as suggested by the architect was appropriate; and there is no substantial risk of a buoyancy problem, [26].

He was also satisfied to the necessary standard that the under-floor heating system proposed is appropriate for this church, which follows largely from his conclusion that the architect’s proposed insulation was the correct one for the building.


Whilst the technical solution agreed by the court is specific to St. Mary Charminster, a number of more general conclusions may be drawn from this case that may be of assistance in future petitions of this nature. The court was required to determine which of two quite different technical solutions was most likely to address problems of future flooding, and produce minimal side effects, e.g. the solution proposed by the DAC architects would make the new floor more permeable, and would therefore allow a greater quantity of water vapour into the building, which would be to the general detriment of the fabric [24].

The Chancellor was anxious to remain impartial in making his judgment [20], but does not appear to have been assisted by some of the material before him. His assessment was made on the basis of the written representations of the parties, but from the text of the judgment it appears as though neither presented the court with a concise justification of its own point of view, or a considered assessment of alternative solutions: the “witness statement prepared by the DAC” was “undated and in reality consists of a series of emails and other documents dealing with the background”, although there was a statement dated late April 2015 (various dates of signatures) from four DAC architects [22]; other material presented to the court “[was] not presently admissible … as it is not in proper form”, [15] and [16].

Against the two opposing views, “substantial assistance” was given by the statement from the Chartered Civil Engineer which “may have been obtained in response to [the Chancellor’s] suggestion that it would assist the case of the petitioners to find expert support for their position. Such a statement was necessary in order for the court to resolve the technical question on which it was not possible with absolute certainty to predict the outcome when dealing with the fabric of a building such as St Mary’s.

Although the petitioners’ faculty was granted, it included technical changes suggested by the Chartered Engineer: i.e. the use of a material such as Dow Styrofoam Floormate 500A in place of Celotex, as it lasts much better and which does not suffer from buoyancy; and since the precise ground conditions cannot be known until further investigations take place, the presently-planned Limecrete might have to be changed for another material.

It is likely that similar uncertainties may arise in a number of the churches that have been affected by the recent flooding described by the Bishop of Leeds and the Second Church Estates Commissioner, above. The best solution for each will be achieved by a professional approach to the assessment of the applicable technology based upon most recent data.

David Pocklington

[Link to Judgment]

Cite this article as: David Pocklington, "Flood damage and the faculty jurisdiction" in Law & Religion UK, 25 January 2016, http://www.lawandreligionuk.com/2016/01/25/flood-damage-and-the-faculty-jurisdiction/

3 thoughts on “Flood damage and the faculty jurisdiction

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