Re St. Lawrence Oakley with Wootton St. Lawrence  Court of Arches
The proposed sale by the PCC of Wootton St Lawrence of the Wootton Helmet, a 15th century Flemish Armet, was deferred following a challenge by the Church of England’s Church Buildings Council, (CBC),and was the subject of an appeal to the Court of Arches. The 2013 consistory court judgment is reviewed here and details and photos of the Armet are in Thomas Del Mar’s Catalogue for its sale in 2010 as a result of the initial court order, here.
“We are delighted that the Court of the Arches has reaffirmed the principle that Treasures from Churches, including those on loan to museums should only sold in exceptional circumstances. This armet is one of an internationally significant collection of funeral monuments which have been lent for many years by parish churches to the Royal Armouries, [the Royal Armouries Museum in Leeds (“RAM”)]. As a church we are the guardians of a very significant part of the nation’s heritage and we are pleased that the judgment has recognized that this is a responsibility we take very seriously.”
The decision was also welcomed by Dr Thom Richardson, the Deputy Master of the Armouries, who said
“The judgment in the Wootton St Lawrence case will hopefully help to close the floodgates for other parishes seeking to turn the armour in their care into cash. When such helmets appear on the art market they are almost universally sold abroad.”
Moving from the hype to the deliberations of the Court, the main points of this important 46-page judgment are summarized below; readers with interests in the sale of “church treasures” will no doubt wish to study the legal arguments in greater detail.
Scope of the faculty jurisdiction
The Court first considered the scope of the faculty jurisdiction in relation to “separation”, where, under various agreements &c, items such as the armet are no longer located within property normally subject to its regulation. “Separation” was considered separately and is discussed below.
In relation to the scope of its jurisdiction, the Court stated [our emphasis],
“26. The armet is an entirely secular object. Whilst it remained in the church it was undoubtedly subject to the faculty jurisdiction, regardless of its ownership by the heirs of Sir Thomas Hooke.
27. Since 1969 it has not been in any church. When the 1974 and 2010 faculties were granted it was still owned by the heirs of Sir Thomas Hooke. But was it in law still subject to the faculty jurisdiction? And if not, does the obtaining by the churchwardens of a half-share in its ownership in 2012-13 (and prior to the 2013 faculty) change matters?”
“33. . . . . . it would be anomalous (as well as highly regrettable) if the jurisdictional consequence of a faculty sanctioning a loan to a museum depended on ownership of the article loaned . . . . The loan was the subject of a contractual agreement under which both parties had rights and responsibilities. Further, whatever the position under section 5 of the [Care of Churches and Ecclesiastical Jurisdiction Measure 1991], it remained the responsibility of the churchwardens from time to time to check that the bailee was honouring its responsibilities under the loan agreement and whether alternative arrangements needed to be made for the armet, whether by way of different terms for the loan, or loan elsewhere, or even disposal by sale (whether open or restricted). It is this element of continuing custodianship which had the legal effect of retaining the armet within the faculty jurisdiction.
For the future, and whilst such wording will not of itself determine the jurisdiction issue, we strongly recommend that chancellors sanctioning loans, regardless of ownership of the articles concerned, contain clear, express provisions relating to the continuance of the faculty jurisdiction in respect of the article loaned.”
Categories of Disposal
The Court then considered [at para.34] the three categories of disposal under which “Treasures of the Church” might be put up for sale, or loaned, viz.
(a) circumstances which do not involve any change of ownership, such as where the item is placed on long-term loan to a museum, art gallery or diocesan treasury (“disposal by loan”);
(b) where the item is to be sold to a museum, art gallery or (more rarely) diocesan treasury (“disposal by limited sale”);
(c) where the item is to be sold, regardless of who the purchaser is, to whoever will pay the highest price (“disposal by outright sale”).
Referring to a number of earlier judgments, the Court advocated that
“where disposal of Church treasures is contemplated, then would-be petitioners and chancellors should apply a sequential approach, considering first disposal by loan, and only where that is inapposite, disposal by limited sale; and only where that is inapposite, disposal by outright sale.”
“[w]ith one exception … decisions have generally recognised that the interests of public visibility should normally prevail, when the court is considering proposed disposal by sale of articles of local or national distinction.”
The exception to this general approach is Re St Michael and All Angels, Withyham  PTSR 1446 (Chichester consistory court) in which the chancellor permitted the sale of a set of four 14th century Italian paintings that had been on loan to the Leeds Castle Foundation since 1997. He considered, and rejected, a representation by the CBC that the sale should be restricted to a public institution in Great Britain, stating at para.39
“I am satisfied, for the reasons given by Sotheby‟s, that this might well result in the paintings not achieving the best price possible. As charity trustees, the parochial church council are obliged to realise the full value of any assets to be sold”.
However, in the instant case, the Court of the Arches noted the inconsistency of the proposition in the second sentence, above, in relation to the dictum in Re St Gregory’s, Tredington about possible sale to a museum at an undervalue. Both Counsel drew attention to this inherent misconception: that the court was concerned with the powers of the PCC, since it is the churchwardens who have the legal title to the goods of the church, although they are not charity trustees.
Counsel were agreed that if the faculty authorised a sale only to a museum for the best price that could be obtained from such a museum, that lawfully limited the duty of churchwardens. The Court added that were it otherwise churchwardens would not be able, pursuant to faculty, to give or sell at an undervalue articles to other churches.
Legal Principles in Disposal Cases
In addressing the proper approach to disposal by sale, the Court drew an analogy with proposals for development with areas designated as Green Belt, which are only permitted where they those that fall within the category of “appropriate development”, [paras. 50 and 51]. In cases deemed as “inappropriate development”, it is necessary to demonstrate “very special circumstances” which “clearly outweigh” the harm caused by the development.
The lower courts have tended to address disposal of church treasures in two stages: first asking whether the circumstances could reasonably be described as “very special”; and if, but only if, they could be described as “very special”, did the question arise whether the very special circumstances clearly outweighed the harm. This led to definitional concerns as to what were “very special circumstances”, with a distinction drawn between the very special and the commonplace.
This is not the proper approach, and the court stated
“qualitative weight, including the cumulative weight of individual factors, some or all of which may not be specially rare, is all that has to be identified; and the requisite weight is that which is sufficient to outweigh the strong presumption against disposal by sale, [para. 51].”
With this approach, rather than continuing to engage in the semantics of what is “special”, chancellors need merely decide whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against sale. Furthermore,
“Financial need” falling short of “financial emergency” will seldom on its own outweigh the strong presumption against sale; but it can and must be weighed with any other factors favouring such sale. It follows that a critical or emergency situation will carry more weight than more normal pressures on parish finances, but it is neither possible nor desirable to develop criteria for an emergency situation that would put a case into a distinct category, [para. 52].
Whilst earlier judgments had spoken of “alienation” or “the severance of any meaningful relationship between the article and the church”, the Court expressed its preference for the term “separation” for describing the circumstances in which an article had been housed for a considerable amount of time in some place other than the church. The Court considered the case law on separation and in its view, in the case of historic articles with a significant past connection with a church or parish, this factor will commonly outweigh any possible argument based on “separation”.
In future cases the Court was of the view that little weight should normally attach to “separation” as a reason for disposal by sale, and it doubted that “separation” would ever, on its own, have sufficient strength to justify sale of a Church treasure.
The proper approach to separation is not a two-stage test, but, as in Withyham, involves looking at the matter in the round in the context of a strong presumption against disposal by sale,
“ …then there may be some circumstances in which “separation” may not be entirely incapable of supporting the case for sale. If, however, there were to be any evidence that petitions for approval of loans were being manufactured as stepping-stones towards disposal by sale, chancellors can be confidently expected to attach even less weight to such manufactured “separation” than might otherwise be the case,.
If, however, there were to be any evidence that petitions for approval of loans were being manufactured as stepping-stones towards disposal by sale, chancellors can be confidently expected to attach even less weight to such manufactured “separation” than might otherwise be the case.” [para. 60]
Grounds for Appeal
Of the five grounds for appeal, the Court accepted two,
Ground 2: The chancellor’s approach to the financial evidence was flawed, [para.64 to 75].
Ground 3: The chancellor’s approach to the question of a historic link between the armet and the parish was flawed, [para.76 to 81]
but rejected three,
Ground 1: Financial need falling short of an emergency does not amount to a ‘special reason’, justifying the grant of a faculty for the sale of a valuable article, either on its own or in circumstances where the article in question has been physically separated from the church because it has been deposited in a museum, [paras. 62 and 63].
Ground 4: The chancellor failed to consider whether if there were to be a sale it should only be to a museum, [paras. 82 to 86].
Ground 5: The chancellor failed to deal with the issue of whether the sale of the armet would be of sufficient financial benefit to the parish as to justify its sale, [paras 87 and 88].
Following previous decisions of the Court in which it was found that a chancellor has erred in law in the exercise of his discretion, it noted that the Court of Arches, on appeal has power to substitute its own discretion, without referring the matter back to the chancellor for redetermination in the light of its decision. Summing up, the Court stated
“90. Whether one looks to the existence of “special reasons”, or, as we have held to be preferable, one simply looks at the matter in the round to see whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against disposal by any form of sale, we are satisfied that this petition should be dismissed.
The armet is a national asset with historic links to the parish and there is no proven financial case for its sale. Little if any weight should attach to the fact that it has been physically out of the church, and therefore outside the parish, for many years.
91. If the grounds for sale were stronger, then, applying the sequential test, disposal by limited sale, even if necessary at an undervalue, should take precedence over outright sale.
92. With hindsight it is clear that the original proposal to sell the armet was not driven by any urgent or pressing financial situation in the parish; rather the armet was seen as a valuable asset, which could become a source of parish funds. A similar approach seems to have been pursued by the parish in 2013. This court’s decisions, particularly in Tredington and Burton Latimer, show that sales should not be approved on that basis.
93. We appreciate that our decision will cause dismay to the petitioners, who may consider that they are being penalised for the commendable strength of their financial position. It may also seem surprising to many people unfamiliar with ecclesiastical law that the petitioners are not permitted to convert the armet into usable funds. It is our view, however, that the strong presumption against disposal by sale of Church treasures, which we have applied in this case, is both soundly based and generally beneficial in its consequences.
94. In its letter to the CBC of 28 April 2013 RAM stated that:
“[The museum] has been active in helping churches safeguard [arms and armour], partly by taking the objects considered most at risk on loan and substituting fibreglass replicas in the churches. Though displaying the objects to the public has been a consideration in taking them on loan, the safeguarding of the objects themselves has been the museum’s primary concern”.
If the loan to RAM is to continue, we would hope that it might be possible to secure from RAM such a fibreglass replica of the armet. This could then, subject to faculty, be hung in the church above the effigy of Sir Thomas Hooke, thus giving new life to the connection between the armet, the church and the village of Wootton St Lawrence”.
 A spiked helmet with a visor.
 The Court referred to: In re Escot Church  Fam 125,127 (Exeter consistory court); Re St Nicholas, Chislehurst (unreported, 1999) (Rochester consistory court); and Re St Bartholomew’s, Aldborough  3 All ER 440 (York consistory court).
 Re St Mary the Virgin, Burton Latimer (unreported, 26 October 1995); Re St Martin-in-the-Fields (unreported, 31 October 1972); Re St Nicholas, Porton (unreported, 2002) (Salisbury consistory court). Other cases considered by the court include: Re St Mary, Barton upon Humber  Fam 41, 55E (Lincoln consistory court); Re St Bartholomew’s, Aldborough  3 All ER 440 (York consistory court); Re Holy Trinity, Batley Carr (unreported, 6 August 1997) (Wakefield consistory court); Re St Peter’s, Draycott  Fam 93; Re St Columba, Warcop (unreported, 21 December 2010) (Carlisle consistory court); Re St Gregory’s, Tredington  Fam 236; Re St Helen’s, Brant Broughton  Fam 16
 Tredington at 241B-D, St Martin-in-the-Fields (p.7) and Burton Latimer (p.7).