Guidance on decision making
The Court of Arches has given guidance to Chancellors to assist in balancing the needs for proposed works to a church against any harm that there may be to the significance of the church as a building of special architectural or historic interest.
This guidance is in the form a five questions, known as the Duffield Questions. They are:
1. Would the proposals, if implemented, result in harm to the significance of the church as a building of special architectural or historic interest?
2. If the answer to question (1) is “no”, the ordinary presumption in faculty proceedings “in favour of things as they stand” is applicable, and can be rebutted more or less readily, depending on the particular nature of the proposals.
3. If the answer to question (1) is “yes”, how serious would the harm be?
4. How clear and convincing is the justification for carrying out the proposals?
5. Bearing in mind that there is a strong presumption against proposals which will adversely affect the special character of a listed building, will any resulting public benefit (including matters such as liturgical freedom, pastoral well-being, opportunities for mission, and putting the church to viable uses that are consistent with its role as a place of worship and mission) outweigh the harm?
In answering question (5), the more serious the harm, the greater will be the level of benefit needed before the proposals should be permitted. This will particularly be the case if the harm is to a building which is listed Grade l or II*, where serious harm should only exceptionally be allowed.
The Court of Arches subsequently made four observations on the Duffield Questions which assist in understanding how the questions are used. These observations are:
(a) Question (1) cannot be answered without prior consideration of what is the special architectural and/or historic interest of the listed church. That is why each of those matters was specifically addressed in Duffield paras 57-58, the court having already found in para 52(i) that “the chancellor fell into a material error in failing to identify what was the special character and historic interest of the church as a whole (including the appearance of the chancel) and then to consider whether there would be an overall adverse effect by reason of the proposed change”.
(b) In answering questions (1) and (3), the particular grading of the listed church is highly relevant, whether or not serious harm will be occasioned. That is why in Duffield para 56 the court’s analysis of the effect on the character of the listed building referred to “the starting point...that this is a grade I listed building”.
(c) In answering question (4), what matters are the elements which comprise the justification, including justification falling short of need or necessity (see Duffield paras 85-86). That is why the document setting out the justification for the proposals is now described in rule 3.3(1)(b) of the FJR 2013 as a document “commonly known as a “statement of needs”” (italics added), in recognition that it is not confined to needs strictly so-called.
(d) Questions (1), (3) and (5) are directed at the effect of the works on the character of the listed building, rather than the effects of alteration, removal or disposal on a particular article.
The two judgements on which this guidance is based are St Alkmund Duffield  Fam 158 and St John the Evangelist Penshurst  Court of Arches (Rochester)