Round-up of consistory court and other cases in April

Fewer than average consistory court judgements were reported during April, although there were other news items of interest.

Church of England freehold incumbents not “employees”

Just squeezing into the April review was Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 in which the Court of Appeal held unanimously that the Revd Mr Sharpe, formerly freehold Rector of Teme Valley South in the Diocese of Worcester, was not an “employee” of the Bishop of Worcester for the purposes of his claim for unfair dismissal or a “worker” for the purposes of his other claims; the Court reversed the contrary finding of the Employment Appeal Tribunal and restored the ruling of the Employment Judge at first instance. Initially covered in our post here, it will be the subject of a longer analysis once we have had the chance properly to digest the judgment. The Church of England press release welcoming the judgment is here.

Burial of fonts, (or not)

In view of the CBC’s proposed guidance on the disposal of fonts, the timing of our post They bury fonts, don’t they? was fortuitous. Although focussing on the recent judgement Re St Peter Shipton Bellinger [2015] Winchester Const Ct, Christopher Clark Ch, it provoked a wider discussion on this issue, and led to a follow-up post indicating the provisions within the Mission and Pastoral Measure 2011 on this matter. However, as Michael Ainsworth commented:

“concerns [remain relating] more particularly to fonts in churches which remain in normal parochial use where, for whatever reason, the parish seeks to dispose of its ‘historic’ font, and … it is helpful to distinguish the various scenarios”.

The possibility of burying an unwanted Victorian font raised in Re St Peter Shipton Bellinger was only a “very last resort” option considered by the court, but one nevertheless that attracted the attention of the media. The Chancellor concluded that “a) every reasonable attempt should be made to transfer the font to another church or chapel, (b) failing such transfer, museums should be contacted, (c) failing a museum, sale on the open market should be considered, (d) whatever disposal is contemplated, his prior consent will be required.” We understand that that the Winchester Diocesan Registry has been informed by the Victorian Society that it intends to appeal the judgement.

Construction News

In our 26 April round-up, we noted that following the acclaimed construction of the “cardboard cathedral” in Christ Church, New Zealand, the building of a LEGO cathedral in Chester was begun this month. Using 350,000 pieces, each of which can be purchased for £1 to be included in the model, its finished dimensions will be 2m in height and 4m in length. It will be split in two so the cathedral’s interior, including its organ, will also be replicated. We hoped that it would also include the cathedral’s consistory court – the “only surviving early ecclesiastical courtroom in the country [i.e. England]”. Frank pointed out that Durham Cathedral was first with the LEGO idea in 2013, although from the initial estimate of 200,000 pieces there appears to have been a 75% overrun on materials.

Readers will probably be aware that in February, Westminster Abbey was granted planning permission to add the first new tower in 300 years, comprising a new staircase and lift to take visitors to the museum, giving access to the 70ft Triforium, [“the best view in Europe” according to Betjeman], and spectacular external vistas including the Palace of Westminster across the road. This month witnessed “the ultimate loft clear-out” of the accumulated fragments of statues, furniture and full stone memorials, before the builders commence work later in the year.

Not yet in the courts

At the beginning of the month, the Church Times reported “a breakdown in building relations” where the minister of an ecumenical church partnership had resigned after decisions over the demolition of a church building descended into acrimony. At this stage, however, proceedings relating to the demolition had not progressed as far as the consistory court, but no doubt some unfortunate Chancellor will have to sort out the mess at some stage.

In the case of an entire choir (apparently 13 in total) of St Peter and St Paul Church, Lavenham, Suffolk, who resigned in support of their musical director, any action will is likely to be in an employment tribunal rather than the ecclesiastical courts – the director of music “had his contract torn up”, which appears to be Daily Telegraph-speak for “given three months’ notice”. The case Re All Saints Maidstone, described below, is a further example of action by choir members.

Environment Agency issues

Readers who are recipients of the daily briefings from the Environment Agency will be aware of the environmental permit application EPR/CB3792RQ/A001 made by the Revd. Jane Baxter on behalf of St John the Baptist Church, Harringworth, Northants, for the discharge of 0.1 cubic metres per day of treated sewage effluent to groundwater at the National grid reference discharge point: SP 91660 97490, i.e. the churchyard.

The relevance to “law and religion” is that whilst the ambit of the ecclesiastical courts extends to the interment of human remains and the disposition of ashes within the consecrated ground of established churchyards, any other releases to the environmental media are subject to additional regulation by the Environment Agency, in this case the Environmental Permitting (England and Wales) Regulations 2010 SI 675 as amended.

The “regulated facility” generating the treated effluent at St John’s will be a “Trench Arch system,” an alternative to a septic tank, whose operation is described in detail in “Waste Water from Churches”; this is a paper commissioned by Gloucester DAC in 2001 “to assist PCCs and their architects where consideration has been given to installing a WC or kitchen in a church, and where suitable mains drainage does not exist.”

Since it seems unlikely that we will return to issues of “churches and water” in the near future, for completeness it is worth including a brief consideration of related issues. Water from fonts and sacraria is generally disposed of, directly or indirectly, to the churchyard but it is likely that quantities involved would be covered by de minimis provisions. Similarly, a permit for water abstraction is not now required for less than 20 cubic metres or less a day, which should be more than adequate for the sprinkling of a few thousand pilgrims[1].

For really innovative churches that are determined to “shrink their footprint”, however, it should be noted that the EA regulates open-loop ground source and water source heating and cooling schemes[2], such as that envisaged for Bath Abbey. These require: a full abstraction licence (unless the volume of water abstracted is less than 20 cubic metres per day); an environmental permit to discharge the water to its source (or a registered exemption from this requirement for a low risk activity; groundwater investigation consent to drill for a ground source scheme. However, it is not necessary to apply for a permit or register an exemption for: a closed loop system; or a small open loop system serving a single domestic property that meets the criteria in the Environment Agency’s regulatory position statement.

Consistory court judgements

Re All Saints Maidstone [2015] Canterbury Const Ct, Morag Ellis Comm. Gen.

Whilst the removal of four pews and replacement of some pew platform boards is ostensibly a straightforward task, Re All Saints Maidstone demonstrates the problems that can arise where unauthorized works are undertaken against a background of parochial unrest. The application for a Restoration Order concerning the the pews and platform boards was made by Christopher Cooper, Ben Rist and Josh Bennett, initially against the Archdeacon of Maidstone, the Ven Stephen Taylor and the PCC of Maidstone, All Saints. At the direction hearing on 23 February, the Commissary General ordered that two of the churchwardens be substituted for the PCC; it was also agreed by the Archdeacon and the churchwardens that the applicants, all members of the church choir, had sufficient interest in the matter to apply for the Order sought.

The church is on the Historic England (formerly English Heritage) Heritage at Risk register and has been unable to pay the Parish share for several years, resulting in indebtedness to the diocese to the sum of £177,894. A Mission Grant enabled the appointment of a Priest in Change, the Revd Ian Parrish, to be appointed as from October 2014, with a view to improving the church’s financial stability. As a consequence, consideration was given to facilitating the use of the nave for non-liturgical activities, including concerts.

Some of the pews were removed on an experimental basis and an application made for an Archdeacon’s Licence for temporary re-ordering. However, the work had been completed before the Licence had been issued, and therefore before the conditions attached to the Licence were known;significantly the requirement that:

“the pews must be kept in good condition to allow for the complete reinstatement of the area should a faculty not eventually be granted to make permanent the alterations”.

However, the pews were damaged during the course of their removal, and dissatisfied with the state of affairs, the applicants made an application for a Restoration Order on 6 February. The Commissary General explained that under s 13(8) Care of Churches and Ecclesiastical Jurisdiction Measure 1991, Restoration Orders were limited to work undertaken in the previous six years, and she could therefore not consider issues raised in the applicants’ correspondence that dated as far back as 1970. In the event that any unauthorized works have been undertaken, the Commissary General may exercise her discretion and make a Restoration order under s 13(5) of the Measure, although her jurisdiction is limited to restoring the status quo before the works were undertaken and cannot be used to require improvements, Re Welford Road Cemetery, Leicester [2007] 1 AER 426[3].

The agreed Statement of Issues was used for discussion at the final hearing, [5.1.1. to 5.1.10] during which the following issues were concluded:

  • Restoration orders are part of the statutory machinery for implementing the faculty jurisdiction, and the Duffield guidelines were considered relevant to this Grade I church: the pews which had been moved comprised part of a distinguishable set within the church, and which were fixed in position through tongued and grooved fittings; it was therefore necessary to consider them as part of the fabric of the church, [5.1.4];
  • One of the pews had been moved on a number of occasions and as a result it had suffered a certain amount of damage, [5.1.2 and 5.1.3];
  • The PCC had not approved either the pew removal or the work to the floor boarding, which was funded by the All Saints Restoration Trust, since the PCC had no capital funds; furthermore, cost of these works exceed the £1,000 limit for them to be considered as “minor matters”, [5.1.8];
  • No permission had been sought for relocating cables inside a conduit or for removal and rerouting of a heating pipe, either through an Archdeacon’s Licence or under the “minor matters” provision; these works were undertaken by the deputy churchwarden who holds no relevant qualifications, [5.1.9].

The Commissary General concluded that none of works in question were properly authorized, [5.1.10], but attached considerable weight to the DAC’s conclusion that the floorboard removal did not give it any cause for concern. However, the treatment of the pews was more troubling and applying Duffield she concluded that there had been some loss of heritage significance, although the damage is limited and is “less than substantial”. Nevertheless, it could not be justified or outweighed by considerations of public benefit, and “had the licence been awaited and its conditions observed, the damage to the pews and the consequential harm to significance could have been avoided”, [6.3].

The absence of consideration by the PCC was highlighted as a concern, since “minor matters authorization and the application for an Archdeacon’s Licence are processes which require the involvement of the PCC … to ensure that mistakes do not occur and it gives the opportunity for proper discussion and an element of “democratic accountability”. It also helps spread the burden of responsibility placed upon churchwardens”, [6.4].

The Commissary General decided to make a restoration order in respect of the pews (but not the platform boards), but suspend it for an initial period of four months to give the PCC for proper discussion and an opportunity of consulting the amenity societies – Historic England and the Victorian Society – and the Diocesan Advisory Committee, and consideration of a Faculty to authorise temporary or permanent re-ordering. The Registry’s expenses were awarded against the churchwardens “on the understanding that they would not, in practice, pay this sum personally”.

[Link to judgment]

Postscript

In this case, the Applicants committed their thoughts to the Facebook page of the Boy & Men Choir – Collegiate Parish Church All Saints Maidstone, Kent, which states:

“Personally I [i.e. Christopher Cooper] would hope that this procedure [the application for a Faculty] is not embarked upon, and that the Parish agrees to the return of the pews to their settings, but we shall have to see. The future of this Parish Church lies in real worship and particularly its Choral heritage, not in vacuous trendy expressions. Let us hope that the Diocese of Canterbury does the right thing.”

We shall follow the outcome with interest.


[1] When John Gummer, as he then was, was a Lay Guardian of the Shrine of OLW and also Secretary of State for the Environment, the Shrine clearly displayed its abstraction licence. Under the present thresholds values, this appears to be no longer required.

[2] Those that use energy stored in the ground to heat and, sometimes, to cool buildings.

[3] Summary in: Re Welford Road Cemetery, [2007] 9 Ecc LJ, 243-244

Cite this article as: David Pocklington, "Round-up of consistory court and other cases in April" in Law & Religion UK, 1 May 2015, https://lawandreligionuk.com/2015/05/01/round-up-of-consistory-court-and-other-cases-in-april/

15 thoughts on “Round-up of consistory court and other cases in April

    • Thanks Greg. I must admit that I too was unaware of the closure of the college. However, a more immediate segue to the consistory court proceedings is the latest Facebook entry that states inter alia “Ben Rist and Christopher Jack Cooper stood as Churchwardens today [26 April 2015] against the current officeholders (Mollie Neaves & Lionel Marchant) during whose last term of office four pews were illegally torn out of their fixed platforms and damaged. Mrs Neaves and Mr Marchant nevertheless won the vote.”

  1. The Sharpe judgement does not appear to be based on a realistic understanding of the realities of life of a minister in the Church of England. The published text rehearses a definition of “freehold” which disappeared many years ago. The CofE is claiming a “victory” for the “freedom” of ministers to remain as office-holders. It is a freedom which particularly suits the institution rather than its ministers, however. For most practical purposes they are now employees under Common Tenure.

    • The internal workings of the C of E are nothing to do with me; however, to state that “The Sharpe judgement does not appear to be based on a realistic understanding of the realities of life of a minister in the Church of England” seems to be missing the point. The function of the Court of Appeal is to find out what the law is and apply it to the instant case – which is exactly what it did. Wider social or ecclesiological considerations are not the Court’s concern.

      Have a look at Russell Sandberg’s analysis posted today.

  2. The law as it stands is precisely the point. Recent case law requires the Court to examine the facts of the situation, rather than follow the nonsensical logic of the Coker case. If it looks like a duck, walks like a duck, and quacks like a duck, then it is probably a contract of employment, despite all of the chaff scattered about by ecclesiastical lawyers to maintain the illusion that a minister is an office-holder. Sandberg is right in that the Court of Appeal has stated the law correctly – but it has not followed it. No doubt Sharpe will appeal.

    • If it states on the face of a Measure that clergy on common tenure are not employees, then surely the courts cannot go behind that. And if clergy on common tenure are not employees, then I don’t see how clergy with freehold tenure can be. If Sharpe appeals, we’ll see – but if he does, there’s no guarantee that the Supreme Court would take the case.

  3. Sharpe was not on Common Tenure, and many ministers remain in post on the same terms. A new Labour government could implement one of the provisions in the ERA bringing the rest of the clergy into the ambit of employment legislation irrespective of whether they are deemed by a Measure to be employees or office holders.

    • No: precisely. But if clergy on common tenure are not “employees” or “workers” for the purposes of the Employment Rights Act, I just cannot see how clergy with freehold tenure can be employees. A new Government of any political makeup could indeed legislate to bring the rest of C of E clergy into the ambit of employment legislation; to do so would override the position set out in the Measure. I can’t imagine it would be a very high legislative priority, though.

  4. Pingback: Consistory court judgments – November | Law & Religion UK

  5. Pingback: Consistory court judgments – 2015 | Law & Religion UK

  6. Pingback: Recent consistory court judgments – January 2016 | Law & Religion UK

  7. Pingback: Law and religion round-up – 5th June | Law & Religion UK

  8. Pingback: Ecclesiastical court judgments and related issues- September | Law & Religion UK

Leave a Reply

Your email address will not be published. Required fields are marked *