Setting up a place of worship (England and Wales)

Setting up a place of worship (England and Wales)

This note is intended to provide a brief summary of the ways in which to set up a place of worship in England and Wales and what the benefits of registering as a place of worship might be. This note is not limited to a certain religion and can be applied across multiple faiths. In 2015 the General Register Office published a list of 29,530 places of worship that were registered in England and Wales. That list did not include places of worship of the Church of England and of the Church in Wales, which do not come under the system of registration. It also did not cover those places of worship which are unregistered. In this note we also explore whether different considerations apply to the setting up of public places of worship above and beyond what would be expected for residential or commercial premises.

This note is not designed to be used for the establishment of new places of worship of the Church of England and of the Church in Wales as special rules apply to the acquisition of land and the licensing of such places by the bishop of the diocese.

Key words: place of worship, church, chapel, synagogue, mosque, temple, gurdwara, minister's house, charitable trusts, registration of place of worship, Places of Worship (Enfranchisement) Act 1920.

Acquiring land and buildings

General

If land and buildings are being purchased for the purposes of religious worship or for the residence of a religious official (eg priest, imam, rabbi), it will be important to carry out a full title investigation to be certain that there are no restrictive covenants in place preventing use of the property for that purpose. This may be the case where a site was formerly owned by another religious body and that body may have wanted to prevent the site being used in a way which might be inconsistent with their beliefs. Consideration would need to be given as to whether such restrictions are enforceable or not. In addition, the property will need to be thoroughly investigated to see if it suits the needs of the particular religion. For example, you will need to decide if:

the geographical location of the property is readily accessible by the congregation;
there will be enough car parking space and sufficient access onto the site;
the property is large enough with room for further development if required;
the intention is to build a tall place of worship and if so, will that construction interfere with rights of light and air which might give rise to a compensation claim;
(if leasehold) the length of the lease will be sufficient in order to allow for worthwhile investment in the buildings and to give security of tenure;
(if leasehold) the tenant covenants will interfere with the free use of the site as a place of worship;
(if purchased as the residence of a religious official), the premises can also be used as a public office for the religious organization concerned;

Additional considerations apply to sites where it is intended to bury or otherwise inter human remains.

Planning restrictions

There may be planning issues in relation to any property that is being purchased. Therefore, it will be important to check whether or not the property is a listed building or if it is in a conservation zone. This is because there could be restrictions on the changes that you will be able to make to the exterior or interior of the property. This could potentially prevent you from developing the property to suit your needs which could be seriously detrimental if expansion is required and may even prevent actual worship from taking place.

Premises are usually classified for a type of use, for example class B is business and class D includes places of worship. It is essential that you check which class the property (or if it is open land, the site) falls into as an application for change or use may be required.

Conveyancing formalities

The conveyancing of the land and building will normally take place in an industry standard way although you should ensure that your solicitor pays special attention to the considerations above connected with possible restrictions on use.

Holding the property on trust

When acquiring a property (freehold or leasehold) consideration needs to be given to the mechanism for how that property is held. There are a number of choices, depending on the religious body concerned. However, it is usual for the land and building be held upon separate charitable trusts or held by a charity as part of its corporate property.

The religious body concerned may have a standard trust deed setting out the management and control of the property and the religious principles to which the building needs to be put.

If a separate trust deed is needed it should be made upon the transfer taking place or in anticipation of it and not some time afterward.

The trust deed should set out what will happen if the property is no longer needed and is to be sold.

In some cases the premises are intended to be used for both worship and formal education. If this is the case, consideration would need to be given to whether the property is to be held upon mixed religious and educational trusts or for a principal purpose (worship) with a power to use (part of) it occasionally for education.

If the property is to be held on a non-charitable trust, consideration should be given to whether it is held by a corporate body (ie a company) or by individuals. If the latter, will they hold it as tenants in common or as joint tenants? There are important legal distinctions here and purchasers should obtain advice on what the options are. Note – not all religions, beliefs and philosophies are accepted as charitable. For example, the Church of Scientology and the Jedi are not accepted as charitable in England and Wales.

Several statutory mechanisms exist to facilitate the transfer of property to be used as a place of worship - namely the Places of Worship Sites Act 1873 and the Places of Worship Sites Amendment Act 1882 and may be available for your organization.

Registration of place of worship

In order to be registered as a place of worship, a building must first be certified under the Places of Worship Registration Act 1855 (PWRA). The requirement for the building to be certified is in section 2 PWRA which requires that "Every place of meeting for religious worship…may be certified in writing to the Registrar General of Births, Deaths, and Marriages in England". The Supreme Court has clarified in the case of R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77, [2013] All ER (D) 100 (Dec) that religion can be defined as:

"…a spiritual or non-secular belief system…which claims to explain mankind’s place in the universe…and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system."

Religion "may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science."

The definition of a "religious place of worship" was addressed in the same case. Lord Toulson held that a religious place of worship is a "meeting place where [members of a religious congregation] perform their religious rites… [and] carry out religious ceremonies of marriage." Therefore, it is clear that a place of worship can be applied to many different religions and the definition is relatively wide.

There are several options available to those wishing to certify buildings for either worship or worship and marriage. The Marriage Act 1949 allows a building that has been certified as a place of religious worship to also be registered for the solemnization of marriages between a man and a woman and/or marriages of same sex couples (if the building is not already certified as a place of worship, then the two applications can be made at the same time).

You can:

Certify the building as a place for religious worship only

Apply for a building which is already recorded as a place of religious worship to be registered as a place for the solemnization of marriages between a man and a woman If you wish to apply for the building to be registered for the solemnization of marriages of same sex couples, you will need the consent of the relevant governing authority.

Certify the building as a place of religious worship and apply for it to be registered for the solemnization of marriages between a man and a woman and same sex couples at the same time.

The application process requires detailed information about the premises (including floor plans), the frequency with which it is used and details of the faith concerned.

There is a fee for each type of registration that must be paid at the time of the application. When also applying for registration for the solemnisation of marriages you will have to provide detailed information including a copy of the marriage service.

If you intend to carry out marriages on the premises you must be registered for that purpose and you must comply with the legal process for valid marriages (including complying with any immigration rules).

Having a certificate can assist in any application for business rate relief or council tax relief for a residence for a minister in connection with that place of worship.

What are the advantages of registering the place of worship?

The following can be advantages of registering a place of worship under PWRA:

it excepts the building (not any funds) from registration under the Charities Act 2011 as a separate registered charity;
it (normally) exempts the building from local business rates;
it allows the religious organization to apply for the building to be registered for the solemnization of marriages.

Registration with the Charity Commission

While registering a place of worship under PWRA excepts the owners of the building from any requirement of registration as a charity with the Charity Commission, any funds raised for a charitable purpose (such as maintaining services, paying religious officials etc) and held on a charitable trust the income for which exceeds £5,000 must be registered . There are exceptions for charities linked to certain Christian denominations whose income does not exceed £100,000. In addition, all charitable incorporated organisations must be registered as charities. For mosques, see also our paper on Legal Structures and Best Practice - Charity Basics for Mosques.

Enfranchisement – what is it and why is it important?

For those religious organizations that own leasehold premises, they may have a right to purchase the freehold under the Places of Worship (Enfranchisement) Act 1920. In order to apply, the property must be held upon trust to be used for the purposes of a place of worship or, in connexion with a place of worship, for the purpose of a minister’s house, whether in conjunction with other purposes or not, and the premises must be used for such in accordance with the terms of the trust. The term of the lease must have been for not less than 21 years. The process is similar to a compulsory purchase order and upon purchasing the freehold, the premises are subject to the same obligations under the lease other than the payment of rent. If the site is subject to a statutory right of reverter that right is not affected. Rights of reverter arise under the Places of Worship Sites Act, the School Sites Acts and property of the Crown Estates.

Enfranchisement is a helpful way of ensuring that the trustees of a place of worship can continue to own the premises of which they are a tenant, assuming that they can afford the purchase price. Tenants seeking to a take up a lease of premises to be used as a place of worship should take advice if they want their lease to qualify for enfranchisement under the Act.

Making land and buildings available for use for a place of worship or a house for a minister

If the property is held by on trust for charitable religious purposes, providing a house for a minister (or other analogous religious official) is a charitable purpose/activity which may fall within those trusts. Providing a house for an official can be charitable but providing a standalone house for a caretaker or an administrator will not be.

A place of worship is usually open to the public and no special permission to enter or use it will normally be needed. If the premises are being used for a purpose that is not worship, this may be permissible (religious education classes for example). Any third party use must be regulated by the use of a hire agreement, licence or lease.

Special considerations for occupation of minister's houses

Where a property is to be used as a residence for a religious official, care should be taken that the right documentation is in place. Firstly, the premises must be available for use as a dwelling with any necessary planning consents obtained. The terms under which the tenant occupies the property need careful consideration. There are a variety of ways the property could be occupied, for example the official might occupy:

as a beneficiary of the charity;
on an assured shorthold or common law tenancy agreement;
as a service occupancy agreement, namely that it is a condition of the contract that the employee resides there (commonly known as tied-accommodation);
as a licensee.

There are pros and cons to these different arrangements and care should be taken to ensure that

the official will vacate at the end of the term of their employment or appointment,
the arrangements do not attract unnecessary tax liabilities,
the property of the charity is being applied properly and that the rights and responsibilities of the landowner and occupier are properly recorded.

Help and advice

Should you wish any help and advice concerning setting up or managing a place of worship or a residence for a religious official please contact our Ian Blaney, Khalid Sofi, Jane Grenfell or Nishita Gudka.

Lee Bolton Monier-Williams LLP

August 2020