Church building repairs: legal considerations

The repair of church buildings is a complex issue involving the expertise of a wide range of professionals from architects to stonemasons, upon whose sometimes conflicting advice the consistory courts must make a judgement on the option most appropriate to the circumstances of the local church and its community.  Whilst the issue of chancel repair liability receives a significant degree of attention, the deliberations of the courts on the practical issues relating to the repairs themselves are less frequently reported.

This post considers two different aspects of this issue: the choice and sourcing of a stone suitable for external structural repairs to a thirteenth century Grade 1 listed church; and deciding between repairs directed at the conservation and those involved in the restoration of specific features of a twelfth century Grade 1 church. However, caution should be exercised in the further application of these judgements since: repairs made to properties such as these are necessarily case-specific; and, the consistory courts of the Church of England do not have a sophisticated doctrine of binding precedent and stare decisis, [1], although “consistency of judicial decision making means similar cases should be treated similarly”.

Selection of materials for repair

Re St Andrew Great Ness [2014] Lichfield Cons Ct, Stephen Eyre Ch concerns the selection of the appropriate material for the repair/conservation of  its sandstone tower.  Important components of this case are: uncertainty as to the  type and characteristics of stone referred to in the petition; a shift in the raison d’être given for the change in the stone to be used; and the technical and economic issues raised by the local quarry initially identified as provider of the stone.

The Chancellor noted the church is built of red sandstone, although the photographs provided indicated that there is considerable variation in the actual colour from red or pink, with a number of cream coloured stones also present.  However, the bulk of the proposed works related to the tower where pale pink stones predominate.  The Archdeacon had issued a faculty[2] which authorized the removal of perished stonework and the insertion of new “Grinshill Red Sandstone” in the spaces created, in accordance with the specification of the Church Architect,

Subsequently, the DAC and Church Architect sought to change the specification of stone from the original choice, more correctly referred to as Myddle Sandstone, to Cove Red Sandstone, both being New Red Sandstones of Triassic age. The former could be sourced from a local quarry in Shropshire, whilst the latter cheaper option was from Scotland.  Although neither the DAC nor the architect “[appeared] properly to appreciate the steps necessary to obtain an amendment to the faculty”, their letter to the court was taken as the formal application.  The Chancellor proceeded under the provision within Rule 19.3 of the Faculty Jurisdiction Rules 2013 which permits a faculty to be amended: provided it is “just and expedient” so to do; and where such an amendment amounts to a substantial change in the works proposed, the chancellor is required to give such directions as to further notice as he considers just.

Two issues faced the Chancellor: an initial inconsistency in the reasons being put forward by the Church Architect for the change in the source of stone; and, a strong objection (via the DAC) from a director of the local quarry.  Despite his obvious commercial interest, the Chancellor was satisfied that the director was motivated by a genuine concern to ensure that the more appropriate stone was chosen, paragraph 9.  He also contended that  Cove Sandstone was cheaper than Myddle Sandstone since its producers are a large operation able to take advantage of economies of scale whereas Myddle Sandstone is produced by a small local quarry.  He further suggested that the Church and English Heritage had a duty to protect smaller operators quarrying local stones to avoid them being driven out of business by larger operations which would then impose a drab uniformity of approach.

Against this, advice was taken from the DAC and English Heritage, paragraphs 10 to 13, from which the Chancellor concluded at paragraph 21 that both types of stone were appropriate. However, other factors arose during the consideration of the applicationt: there may be some difference in weathering if Cove Sandstone is used; and an offer to match the price of Cove Sandstone.

In authorizing an amendment to the faculty to provide that the replacement stone may be from either source, the Chancellor imposed a new condition to the effect that before an order for stone is placed, on the advice of the Church Architect the PCC must consider: (a) the advice from the DAC that Cove Sandstone might weather differently from the other stone in the building; (b) the offer to match the price of Cove Sandstone; and (c) the Church Architect’s assessment that Myddle Sandstone would be acceptable for use at Great Ness.

Comment

No point of law was at issue and taking the technical and economic factors that needed into consideration, the Chancellor determined that the existing faculty should be changed.   On the basis of expert advice, having decided on the equal merits of the two sources of stone, the Chancellor left the PCC to make the final choice.  However, aspects applicable to other similar cases are the Chancellor’s statement [at paragraph 16]:

“St Andrew’s is a Grade I listed church built to the Glory of God and the use of second-best materials would not be justifiable or permissible. In deciding whether a particular type of stone is appropriate for use as part of a church building account must be taken not only of the functional qualities of that stone but also of its appearance and of the nature of the stone alongside which it is to be inserted,”

and in relation to the Church’s relationship with stone suppliers, [at paragraph 18]:

“Smaller local quarries . . . undoubtedly perform a valuable function. In addition it is of benefit to the Church of England to have multiple sources of high quality stone available so that those effecting repairs to historic churches have a proper choice of supplier and so that quality stone is available for use in such repairs. Nonetheless, it is not permissible to impose artificial restrictions on the type of stone to be used nor to make restrictions based on the scale of the operation producing the stone.”

A detailed technical note Identifying and sourcing stone for historic building repair, [2006], was published by English Heritage in 2006.  Although not referred to directly in the judgement, it is likely that the comments submitted by EH will have been informed by this document.

Conservation vs Restoration

Repairs to external stonework were the focus of Re St Michael’s Whichford [2013] Coventry Const Ct Stephen Eyre Ch, discussed briefly in an earlier post which indicated that a Faculty was granted for repairs to external stonework of this twelfth-century church. This followed an earlier faculty for similar work, but on different facts.  The issue of the requirement for conservation vs renovation was considered, both in terms of the underlying philosophy and its practical application.  We noted that for this and other consistory court judgements, non-architects may benefit from an Architectural Glossary, (such as Pevsrner’s), in relation to some of the terms used[3].

Previous judgement  A judgement of 31st December 2010 concerned a faculty application for repairs and replacement of stone work to two windows on the south elevation of the de Mohun Chapel. All were in agreement that work was needed on those windows but on that occasion the controversy was the DAC suggestion that the proposal went beyond what was needed, and amounted to restoration rather than conservation work. It was common ground that the proposed conservation works would preserve the situation for no more that fifteen years or thereabouts, and the Chancellor considered that this relatively brief breathing space did not justify the potential benefits of restricting the works solely to conservation.

Instant judgement  The DAC had initially considered issuing a Certificate of No Recommendation, but following negotiations with the PCC, it had issued a Certificate stating it did not object to the petition.  However, this was accompanied by a detailed letter of rider in which it set out the reasons for moving to this position, viz.: whether it is necessary to replace the hood mould around the south porch; whether the reveals around the south porch doorway need to be replaced; and whether the reveal to the south door of the de Mohun Chapel needs to be replaced, and potentially its hood mould.

The Church Buildings Council relied upon the representations of the DAC, and a letter from English Heritage explained that it would wish to see a more conservative specification for the works in order to preserve more of the significant medieval fabric.  The Society for the Protection of Ancient Buildings, (SPAB), objected strongly to the petition and was of the view that: all of the stone works of the windows is repairable; the proposed stone replacements are unnecessary and inappropriate; all that was needed to the north aisle north-east window was some modest “making good”; and it took a rather harder line than the DAC on the repair of the ferramenta. Its letter concluded by saying that the proposed works are largely unnecessary and not based on sound conservation principle or philosophy or best practice. Neither EH nor the SPAB chose to object formally to the petition, and the Chancellor was critical of the SPAB’s underlying argument on costs which was invalid.

In his consideration of the case, the Chancellor was guided by the principles laid down by the Court of Arches in the case of Re Duffield: St Alkmund [2013] 3 WLR 854, and noted that for many of the proposed works it was accepted that some work needs to be done and the issue is the extent to which what is proposed goes beyond what is necessary.  Substantial weight was placed on the evidence provided by architects (in contrast to that of non-architects) and that of the stonemasons.  The Chancellor stated that merely to address the effect of weathering and age is not justifiable in terms of a Grade I listed church and there comes a time when change and decay has gone beyond mere weathering and action is needed to preserve the fabric of the church.

Whilst it is only in an extreme case that restoration involving the removal of medieval fabric will be justified, the Chancellor was persuaded that this is such an extreme case.  With regard to the hood mouldings, they are not merely decorative by have a structural function, which they are no longer performing.  He concluded that the replacement was necessary and a need shown sufficient to overcome the presumption against change.  Material from the same quarry as the original stonework was to be used, and it should be in the same form as the original hood moulds, so that they perform their function.

With regard to the reveals, the concerns of the Warden and Incumbent and PCC of there being an effect, progressive and continuing, on the underlying fabric of the church through the absence of the reveals was legitimate. The impact on the character of the church is such that their restoration is justifiable in the light of the impact of the current position on the structure of the church.

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[1] In the matter of conjoined petitions relating to the theft of metal from various church buildings, and in the matter of a like application for dispensation from faculty, St Michael and All Angels, Bexhill; All Saints, Danehill; St Matthew, St Leonards-on-Sea; St Mary, Balcombe; St John the Evangelist, Upper St Leonard [2011] Chichester Cons. Ct, Mark Hill Ch.

[2] Works within the Archdeacon’s jurisdiction include: “repairs using matching materials”, Rule 7.2 of, and Schedule 2 to the Faculty Jurisdiction Rules 2013.

[3] Reveal: the side of an opening for a door or window between the frame and the outer surface of a wall, showing the wall’s thickness; Hood moulding: gothic ornamental stone moulding which projects over an arch, doorway or window, in order to throw water clear of the building; Ferramenta: metal window grid to which glazing, especially stained glass, is secured.  Pevsner’s Architectural Glossary is available as an iPhone App, a snip at £2.99.

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