Recent consistory court and other cases, March 2015

Parochial Fees

The fall-out following the disciplinary adjudication Re Hawthorne [2015] has continued, and the Remuneration and Conditions of Service Committee, (RACSC), of the Archbishops’ Council has published further guidance on parochial fees, this time directed at hospital chaplains. The document Guidance for Church of England Hospital Chaplains, Incumbents, Diocesan Boards of Finance, and Hospital Trusts in relation to Funeral Services and Church of England Parochial Fees was circulated to the hospital chaplaincy network on 24 February. This was followed on 6 March by a more widely circulated letter from the Bishop of Manchester, the chair of the RACSC, and on 9 March with the publication of twenty-three Frequently Asked Questions which further explained the guidance, its basis and application. These are reviewed in our post Hospital chaplains, funerals and parochial fees.

Reservation of burial space

IMG_1933(3)In view of the diminishing availability of burial space in England and Wales, the reservation of graves is likely to become an increasingly important issue, and in our post Reservation of burial space we explored this with reference to: the recently reported case of Re St. Wilfrid Grappenhall [2015] Chester Const Ct, David Turner Ch. which concerned the establishment of a “no-reservation” policy by the PCC; and Re All Saints Heathfield [2013] Chichester Const Ct, Mark Hill Ch. in which there were only “four or five” burial spaces available at the time of the hearing.

Cremation error

Following the problems encountered with interments in churchyards highlighted in our last Consistory court catch-up in February, in our news round-up on 8 March we reported yet further problems within the funeral industry: the CofE’s Daily Digest of 6 March carried the story of the cremation of the body of a man by mistake at the funeral of an MEP with an almost identical name. Investigations are continuing.


Other consistory court cases

Re St. John the Baptist Penshurst [2015] Court of Arches

IMG_1160(5)This concerned the appeal by the Victorian Society against the decision in Re St. John the Baptist Penshurst [2014] Rochester Const Ct, Gallagher Ch. to allow the removal from the church of a Victorian eight bay screen by Bodley & Garner and its reinstallation in a church in Leicestershire; this necessitate the reduction of the screen by two bays. this raised issues relating to alleged harm to a Grade I listed building and to the screen as an article of intrinsic artistic interest. Although the appeal was pleaded and argued under ten heads, which cumulatively were claimed to represent an erroneous evaluation of the evidence, the court considered that the case fell under three heads: i] that the chancellor had failed properly to address the issue of harm arising under questions (1) and (3) in Duffield and also as it arose in relation to the screen itself; ii] that he had failed properly to address the issue of justification under question (4) in Duffield and in relation to the screen itself; and iii] that by reason of one or both of these failures, the balancing exercise he had carried out failed properly to address the presumptions which arose both under questions (2) and (5) in Duffield and in relation to alteration, removal and disposal of the screen.

Notwithstanding the Victorian Society’s successful challenge to the reasoning of the chancellor’s decision, the Court of Arches held that following its own redetermination of the case[1], a faculty should issue for all the works set out in the judgment[2], subject to a number of conditions. It noted [para. 111] that “[a]lthough the Victorian Society may prove to have had a pyrrhic victory, we hope that our judgment has clarified the position on a number of issues of importance which properly caused it concern.” It also commented on “two procedural issues … which might prevent some of what has arisen here being repeated”:

“113 … the practice long familiar in civil proceedings whereby copies of draft judgments are circulated, in confidence, in advance of delivery. As stated in R (Edwards) v Environment Agency [2008] 1 WLR 1587, HL, para 66:

“The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue their case”.

Such advance disclosure is now the practice of this court, and we commend this practice to chancellors. In the present case it might have eliminated certain errors in the judgment.

114 … the principle enunciated in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, CA, and re-stated in In the matter of S (Children) [2007] EWCA Civ 694 para 22:

“[I]f counsel at the end of a judgment by a judge takes the view that the judge has not dealt with a material part of the case or in the particular instance has failed to make findings of fact or has not dealt with the evidence of a particular witness, the responsibility of counsel at that point in my judgment is to point the alleged deficiency out to the judge and invite him to give a supplemental judgment dealing with the point raised. It is not, in my judgment, appropriate immediately to ask for permission to appeal on the ground that the judge has not dealt with the issues in question.”

Whilst we doubt that use of this procedure would have avoided the need for the present appeal, Mr Petchey frankly conceded that it had not crossed his mind to make such an application to the chancellor. It too might have reduced the issues in the present appeal.”

[Link to judgment] [Top of Page]


Re St. Peter Lapal [2015] Worcester Const Ct, Charles Mynors Ch.

This relatively straightforward case concerned the practical issues associated with the construction of a ramp for disabled access at the front of a “striking mid-1960s church”. Access for wheelchairs and buggies to the rear of the church hall was available directly from the car park, a route that many appeared to take, and although the new arrangements will necessitate the removal of four car parking spaces at the front of the church, there was ample other capacity and at most times on-street parking presented few problems. Readers can emulate the example of the chancellor and conduct their own electronic site survey using Google satellite and StreetView imagery[3].

The petition gave rise to only two objections in relation to the publicity of the petition and six aspects of the substance of the proposal, [6 to 8]. No significant issues of ecclesiastical law were raised; however, the court reiterated the Church’s position on the operation of its consistory courts under the statutory disability provisions now within the Equality Act 2010, Re Holy Trinity, Eccleshall, Court of Arches [2011] Fam 1, para.68, viz.

“… the Disability Discrimination Act 2005 (“the 2005 Act”) imposes a duty on public authorities to have due regard to the need to eliminate discrimination that is unlawful under the 1995 Act (s.49A(1) of the 1995 Act, inserted by s.3 of the 2005 Act). Whilst that provision does not apply to a judicial act (s.49C of the 2005 Act), we accept the submission of the amicus that consistory courts should generally give effect to s.49A of the 1995 Act as if it did apply to them (and in due course its successor s.149(1) of the Equality Act 2010 once it is in force).

The Court stated [22]:

“[i]n particular, a parish should aim to provide, if at all possible without unreasonable expense, full access to and from a church, for example, by making a suitable number of wider car parking spaces available for use by those with buggies and wheelchairs, but such an approach may also [be] likely to lead to requests to spend considerable sums on building works, which would have to be justified when balancing against competing demands on limited resources, or which may – as in the present case – be perceived to have practical consequences that are unfortunate; and so it is wise to consider first what is actually required by law, before going on to consider whether further works are merely desirable as opposed to mandatory, [emphasis added].

Importantly, the chancellor stated [23]:

“the duty for a parish to make reasonable adjustments to its church is not an absolute one, but merely to take such steps as are reasonable in all the circumstances. Nor does the Act itself justify taking any steps that happen to assist people who  are disabled in particular; any particular proposal still has to be examined to see whether it is the most appropriate way to achieve that result”.

He considered the six points raised in relation to the substance of the proposal [26 to 31] and overall, although he could see the force behind some of the points raised, did not think that any was sufficient to indicated that the proposal should be refused.

Faculty granted, subject to conditions relating to a detailed specification, to be approved by the DAC (or the court).

[Link to judgment] [Top of Page]


Re St. Mary Balcombe[2015] Chichester Const Ct, Ruth Arlow Dep. Ch.

The issue centred on the conservation and restoration of two Victorian stained glass windows at the east end of a Grade I listed church building, and the professional competence required to undertake the work. The Diocesan Advisory Committee had recommended that the restoration of two windows at the east end of the church should be carried out by a stained glass contractor accredited by ICON (Institute of Conservation). The Parochial Church Council wished to engage a contractor who had previously carried out work at the church but was not so accredited.

The Deputy Chancellor expressed her thanks for the advice provided by the DAC and CBC, and appreciated the concern of both bodies that it will almost always be appropriate to use accredited conservators. However, she added that “it would be unjudicial … blindly to apply a blanket requirement for the ICON accreditation of contractors” adding that it was not for her “to impose [her] own views and preferences as to the appointment as to the appropriate contractor on the petitioners”, “but rather to consider whether these petitioners have acted reasonably in selecting this contractor to undertake these proposed works. Does he have the requisite skill and experience?”

The Deputy Chancellor noted that the preferred contractor “clearly has a significant number of years’ experience working on similar projects to the acclaim of well-respected professionals. He has considered and addressed concerns raised by the CBC and is clearly sympathetic to conservation concerns and the need to preserve originality where possible”. Faculty granted.

[Link to judgment] [Top of Page]

Comment

Whereas evidence presented to the court by the PCC and its experts focussed on the competence in conservation repair/restoration of its preferred contractor, the criteria of the Institute of Conservation’s Professional Accreditation of Conservator-Restorers (PACR) are substantially wider, covering issues such as health and safety; as we have observed, is of particular relevance in processes involving lead, such as the soldering, wire brushing and wire woolling techniques used in the restoration of stained glass. A firm with ICON accreditation would have had to demonstrate that it “ensures that its work practices and the area for which it is responsible comply with relevant Health & Safety regulations and guidelines, minimising risk to the company employees and others.” Whilst accreditation of itself is no guarantee of the continuing compliance of a company, it does provide further information necessary for those concerned with the responsible sourcing of goods and services.

[Link to judgment] [Top of Page]


Re St. James the Apostle Islington [2015] London Const Ct, Nigel Seed Ch.

The petition of the incumbent and churchwardens sought: the removal of the existing altar dais and raised floor in the sanctuary, mounting the altar on castors, laying a new level floor with a parquet surface throughout the chancel; building works in the lobby area by the entrance to the vestry; installation of new speakers as part of the enhanced sound system. The Statement of Need identified “making the church available to the community – particularly via music – and the use of the church by musical groups, particularly the Islington proms. Also “modern liturgical reforms require flexible settings”. The proposal in the petition had the support of the PCC and DAC. However, there were seven letters of objection which centred on the resultant changes to the character of St James: it was said to provide traditional Anglican worship in an area where most other Anglican churches provide worship in alternative forms, [3].

More than one objector suggested that the drive behind these proposals to make the sanctuary more suitable for performers in concerts than for liturgical reasons, The concert facility was not benefitting the local community as audiences and performers alike do not come from the immediate vicinity and the local populace were not of a socio-economic group which could or would pay to go to concerts in the church, [4].

In addition to procedural objections, the Chancellor was made aware of “a particularly inappropriate passage in a report to the congregation (presumably prepared for the 2014 APCM) which spoke of those who objected in negative and derogatory terms and criticized them for exercising their statutory right to lodge an objection in the Registry in response to the general citation,” [6].

The hearing took place on 17 January, and despite the petitioners and opponent agreeing to have no legal representation, the Chancellor became aware that the person sitting next to the incumbent was in fact a senior partner, handling reconciliation cases at one of the City’s major law firms, [12]. Nevertheless, “the most important matter to emerge from the Hearing was [the Chancellor] seeing the building and spending time in it … and [he] came to the conclusion … that the case for re-ordering the sanctuary was mad out”, although he felt that the proposals did not go far enough.

The Chancellor was satisfied that necessary funds were available to undertake the proposed works in a professional way and to a proper standard. He confirmed his interim decision to allow the removal of three steps within the sanctuary and the removal of the carpet covering, the radiator and the altar rails, in order that further investigative work can be undertaken under the authority of the Archdeacon. Following consultations between the DAC and the Inspecting Architect, the petitioners were required to produce within 12 months:

“a final overall scheme that provides a fitting arrangement for future worship and not just a platform for concerts. Also lettings of the church building for secular usage must be agreed in transactions that are conducted at arm’s length will all interests properly declared. If there are any disputes about this, they too should be referred at first instance, to the Archdeacon”, [22].

Comment

Despite the “lack of ‘parity of arms’ between the petitions and the party opponent,”[12], the Chancellor’s judgment gives weight to the spirit, if not the detail, of the objections raised. Perhaps there are lessons there for others elsewhere.

[Link to judgment] [Top of Page]


RRe St. Paul Norden [2015] Manchester Const. Ct, Geoffrey Tattershall Ch.

St Paul, Norden is a Grade II listed church: the petition concerns the removal of two pews from the west end of the church and four from the north aisle, and the reduction in width of a further pew. The reasons for the proposals were to create: (a) a more useable space for a growing number of young families; (b) an area where some of the congregation can sit and enjoy refreshments after a service; (c) an area close to the main entrance which can accommodate noticeboards on which to communicate information; and (d) an area where a wheelchair can be positioned which is not at the rear of the church. The proposed works had the unanimous support of the PCC, and the approval of the DAC which additionally suggested treating the fifth pew on the left side of the nave in an identical way to that set out in paragraph 1(c) above: this, however, was not followed up by the PCC.

The chancellor indicated [17] that he considered that the proposed alterations to the pews in the north aisle were uncontroversial and noted that there is no objection raised thereto. Likewise, the removal of the ‘wardens pews’ seemed to be to be eminently sensible, and the provision of notice boards in the area so formed will assist communication with parishioners, and it is far better for such notice boards to be positioned at the west end of the church nearer its entrance rather than in the north aisle, [18].

With regard to the shortening of the fifth pew so as to accommodate a wheelchair, he was satisfied that it is appropriate that this should be done; it is far preferable for a person in a wheelchair to be able to sit in the body of the congregation than to have to sit at the west end of the church, [19]. Quite so; there must be many churches in which this is the case.  Faculty granted.

[Link to judgment] [Top of Page]

David Pocklington


[1] as provided for by rule 16(1) of the Faculty Jurisdiction (Appeals) Rules 1998.

[2] i.e. as in paragraphs 8(i) to 8(iv) of the judgment.

[3] Post code, B62 0BH; the church is on the south side of Hiplands Road, Halesowen, just past No. 8.


Cite this article as: David Pocklington, "Recent consistory court and other cases, March 2015" in Law & Religion UK, 2 April 2015, https://lawandreligionuk.com/2015/04/02/recent-consistory-court-and-other-cases/

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