Explanatory note for those/advisers of those acquiring freehold of closed churches/sites under the Pastoral Measure 1983 The Pastoral Measure 1983 1 This Measure of the General Synod of the Church of England has the force of an Act of Parliament. A copy may be found in Volume 14 of Halsbury’s Statutes. 2 A church which (or the site of which) is being disposed of by the Church Commissioners (‘the Commissioners’) will have previously been for declared closed for regular public worship by a Pastoral Church Buildings Scheme. Such a scheme may also authorise the Commissioners to dispose of the property for another use. 3 More usually, however, an alternative use for the property is not found until after the church has been declared closed for regular public worship. Once a suitable use has been agreed, the Commissioners may be authorised to dispose of the property for that use by a Pastoral (Church Buildings Disposal) Scheme. 4 During this process, legal ownership of the property will pass by virtue of the Measure. If the Commissioners are authorised to dispose of the property by a Pastoral Church Buildings Scheme, the property vests in them immediately that scheme comes into effect (see section 59 of the Measure). If the property is declared closed by the Pastoral Church Buildings Scheme but there are no provisions relating to its future use, the property vests in the Diocesan Board of Finance under section 49 of the Measure. It may subsequently vest under section 59 in the Commissioners for disposal, once the ensuing Pastoral (Church Buildings Disposal) Scheme comes into effect. 5 You will be supplied with a certified copy of the scheme authorising the Commissioners to dispose of the property. This, together with the earlier deeds and/or statutory declaration – see below under ‘Title’ - will be sufficient for Land Registry purposes. 6 Where the scheme is to be brought into effect by an instrument of the Commissioners (on an unspecified date), you will be sent a copy of the instrument once it has been made. (The instrument will in many cases not be dated until immediately before contracts are exchanged.) Title 1 The scheme comprises the Commissioners’ title to the property. You need not apply to the Land Registry for clearance of title, which is a statutory one, since the effect of the scheme is to vest the property in the Commissioners for disposal under section 59 of the Pastoral Measure. 1 2 Before the scheme was made, title to the property will have been investigated by or on behalf of the Commissioners. You will be supplied with the originals or copies of such items as the Commissioners have in their possession (for example, deeds, statutory declarations where no title deeds were traced, and searches). 3 If the property you are acquiring has unregistered title, the solicitors acting for the Commissioners will let you know what names you should search against at the Land Charges Registry. Rights included in the transfer/exceptions and reservations out of the transfer The Commissioners are able to transfer only the property (including rights) vested in them by section 59 of the Measure pursuant to the scheme. If additional rights are required over other property (whether or not this be property in the ownership of a church body), you will need to negotiate this yourselves. Should rights be needed over a retained churchyard, you should apply to the diocesan chancellor for a faculty. The secretary to the diocesan mission and pastoral committee will be able to tell you how to make such an application. Covenants imposed on disposals of closed churches/sites 1 The Pastoral Measure 1983 enables the Commissioners to have a continuing interest in the property by the imposition of covenants. By section 62 of the Measure, positive covenants have the same force as if they were restrictive covenants and the covenants take effect as if they were taken for the benefit of the Commissioners’ adjoining or neighbouring land. By this means the Church of England retains control over the use, development and maintenance of land or buildings which was or were formerly consecrated. 2 The scheme authorising the disposal of the property will generally specify the use for which the Commissioners may dispose of it. This use will be protected by a covenant in the transfer, restricting the property to that use alone (and purposes ancillary to it). Should a change of use be required in the future, a relaxation of the user covenant may be considered by the Commissioners at that later date, although they will have absolute discretion to refuse to do so, or to grant a relaxation of the covenant subject to such conditions as they deem necessary (including the payment of a consideration). 3 The transfer will also impose other covenants on the owner of the property, to ensure that the property is suitably maintained. 2 4 Although a former church is used for another purpose, it will continue to look like a church and, as such, will almost inevitably attract visitors. To protect the privacy of the new owner, the Commissioners suggest that a notice board is erected, indicating that the property is used for another purpose. Such a notice should also indicate to such interested members of the public the conditions for access. The transfer will include a covenant to this effect. Contents 1 The scheme will indicate that the disposal of the contents will be in accordance with the bishop’s directions, subject to listed building consent. The bishop will give written directions in relation to the various items in the building. He may indicate that all or any of them are to remain in situ, in which case they will be included in the sale. Alternatively, he may indicate that all or any of them are to be removed. In that latter instance, they will be removed by the diocese (not the Commissioners). 2 Where contents are to be removed, they will generally be taken out of the property before contracts are exchanged. However, it may not always be possible to remove them before exchange of contracts, or even, on occasion, before completion. The agreement for sale (if the disposal is not a gift) will contain a provision to cover this point. Burials, tombstones, monuments and memorials 1 There are statutory restrictions on disposals of land in which burials have taken place. Where there are believed to be burials in the property, section 65 of the Pastoral Measure prohibits any disposal of the land (or agreement to dispose of the land) without an order from the Department for Constitutional Affairs (‘DCA’). The Commissioners will make the application for any order that is necessary and will inform you when it has been made. Where the proposed use of or alterations to the property will not involve any disturbance of human remains, the order is generally forthcoming without conditions. However, should a resulting disturbance of human remains occur, you should notify the local Environmental Health Officer (‘EHO’) and the Commissioners’ Closed Churches Division immediately. (The EHO will advise on how the remains should be dealt with, screening etc. and the Commissioners will advise on obtaining revised directions from the DCA or a Burials Act licence to deal with the remains.) 2 In addition, the tombstones, monuments or memorials commemorating those buried in the property will have to be disposed of in accordance with Schedule 6 of the Measure. These will usually be disposed of in accordance with directions given by the bishop, who may direct that they remain at the property or that they be removed. Where they are to 3 be removed, this will be done by the diocese before completion of the transfer from the Commissioners. 3 There will be covenants in the transfer to protect any burials in the property, and the rights of those wishing to visit the graves. [ 0306] 4