A relatively small number of consistory court judgments have been reported over the past couple of months; however, in early May we posted on a significant Court of Appeal judgment Sharpe v Bishop of Worcester  EWCA Civ 399 in which the Court held unanimously that the Revd Mark Sharpe, formerly Rector of Teme Valley South, was not an “employee” of the Bishop of Worcester or a “worker” for the purposes of employment law.
Following the announcement by Cardiff University that its Law School had hosted a hearing of the Church of England’s Court of Faculties of the Archbishop of Canterbury, we ran a post on this little-known corner of the Archbishop’s jurisdiction. The Faculty Office has announced that two discipline cases of alleged notarial misconduct had been decided in the Court of Faculties in June, and the decisions in those two cases will be available at Recent decisions of the Court of Faculties.
Our post Recent CFCE determinations reported the decisions of the Cathedrals Fabric Commission for England, (CFCE), at its meeting on 23 April 2015. The issues considered by the CFCE are similar to those of the Church’s consistory courts, but are made under the Care of Cathedrals Measure 2011 and Care of Cathedrals Rules 2006 SI 1941. The last Commission meeting was on 4 June 2015 and determined the applications for Ripon, Rochester (x2), and Hereford Cathedral, and we will report on the decisions once they are published.
Consistory court judgments
A faculty was sought for the addition of a fully accessible lavatory, for a small kitchen facility and for roof repairs for this Grade I listed church, dating from 1106. The proposals were supported by the DAC, the planning authorities, the Victorian Society, the Church Buildings Council, English Heritage and the Ancient Monuments Society. The Society for the Protection of Ancient Buildings, SPAB, considered that the cutting through of the fifteenth century west wall of the north aisle would result in serious harm would be extremely serious, whereas the other amenity societies appeared to view it as less so. In his assessment of the Duffield questions, the Chancellor observed:
“SPAB is not an organisation which ‘cries wolf’ and rails against proposals merely for the sake of it. SPAB’s response is invariably measured and balanced and the contribution it makes to the consultative process is always constructive and soundly based”.
However in the present circumstances he was obliged to consider the evidence overall including that of the Victorian Society, the Ancient Monuments Society, English Heritage, the DAC and the CBC. Based on the totality of the evidence, he considered the harm (albeit limited and localised) which would result from these proposals to be noticeable but not serious in the context of the building overall.
In carrying out the delicate balancing exercise in relation to these particular proposals “at the more modest end of the scale”, the Chancellor was satisfied that the petitioners had more than discharged the burden on them to show public benefit and that the Statement of Needs is shot through with a careful and realistic assessment of how these modest changes will significantly enhance the mission and witness of the Church of England in the parish.
On the totality of the expert opinion available, he regarded the likely harm to the significance of the church as a building of special architectural or historic interest to be no more than moderate; in this instance, the material that had been presented suggests that the public benefit outweighs any likely harm. Faculty Granted.
Re St. Andrew Rippingale  Lincoln Const Ct, Mark Bishop Ch.
This is another case of a PCC member “helpfully” undertaking work, but without formal authority: here, laying a cable in the churchyard for floodlighting and providing external tree lights at Christmas, following an offer from the (civil) Parish Council in relation to the use of some of its surplus funds. The substance of the reported judgment is concerned with ascertaining how the situation arose, and sorting out the resultant mess created. No new points of ecclesiastical law are developed, although the Chancellor’s comments at paragraphs 11 and 12 provide a valuable precautionary warning to other individuals and PCCs that are tempted to ignore the provisions of the faculty jurisdiction:
“11. To dig a shallow trench through a churchyard to lay a cable without a Faculty or even without having raise this as a necessity with the PCC or the priest in charge is a serious mistake … I would expect any PCC member to know about the need to get permission before digging such a trench through a churchyard and laying an electricity cable. The risk of disturbance to human bones, (even if disarticulated), is obvious and taken very seriously by the Church. Such risks can only be taken when matters have been carefully considered. This involves giving notice of the works so that people are aware of the proposed works and the can express any concerns if they have them. Additionally a number of other matters were overlooked:
(i) because this was work outside the church that was beyond simple repair work, it was necessary to notify the local planning authority of the proposed works;
(ii) because there was no Faculty, there would have been no insurance cover in place for the work or for any accidents arising out of the work if the cable had been laid correctly:
(iii) additionally there was no opportunity of an assessment by the DAC of the proposed works and whether safeguards were in place.
An independent contractor was employed to investigate the scene and to take steps that the installed cable had been isolated and made safe. Since removal of the cable would involve a further disturbance of the ground, the Court agreed that the “sensible option” would be to cut off the cable at each end below ground where it protrudes from the soil, and leave it buried in situ; it authorized the undertaking of this remedial work, at an estimated cost of £150 plus VAT, but since the PCC member had undertaken the unauthorized work without payment, the Chancellor did not order him to make a contribution to these or the court’s costs. The Petitioners were given 6 months to complete the work as specified by the independent contracts, and subject to the notification of the local planning authority. However, work was not to commence until the insurer had notified the PCC in writing that no further steps were necessary in order for the insurance cover to remain in place.
The Incumbent and churchwardens of All Saints, High Wycombe sought a faculty to authorise the re-ordering of the west end of this Grade I listed church. Originally Norman, the church had been subsequently rebuilt and altered, and of relevance to the petition was the work undertaken by Henry Keene, circa 1755, and the restoration by G E Street, 1873-5. [Street is well-known as the architect of the Royal Courts of Justice]. The proposed reordering comprised: replacement of the outer west doors; relocation of the inner west screen doors (the ‘Keene doors’); creation of an entrance foyer at the west end with inner and outer screens and a mezzanine floor above; and relocation of the font and its cover from the west end to the north aisle.
Notice of the petition was given to: English Heritage; The Society for the Protection of Ancient Buildings; The Georgian Group; The Victorian Society; and the local planning authority. As in the case of Re St. Peter & St. Paul Rustington below, the response of some of the national amenity societies was less than helpful. Chancellor noted, :
“It is … unfortunate that in this case the submissions of English Heritage and the Victorian Society have proved to be of less assistance to the court in evaluating the proposals than is normally the case. The reason for that is that the proposals which are the subject of the petition have been revised in the light of the observations which those two bodies made on the original draft proposals in 2012 and 2013. By simply referring, in their responses, to the letters they had previously written, they offered no observations on the revisions that had been made to the proposals in the meantime”.
Likewise, because the court values the expertise that English Heritage and the national amenity societies bring to bear on petitions of this nature, he sought, as far as was possible, to extract from their earlier correspondence such of their observations as remain material to the revised proposals. Although the petition was formally unopposed, in view of its contentious nature, it was given detailed consideration. The Chancellor adopted the framework of guidance provided by the Court of Arches in Re St Alkmund, Duffield  Fam 158 at paragraph 87, and its subsequent observation in Re St John the Baptist, Penshurst (9 March 2015, unreported).
Following his assessment of the impact of the various aspects of the proposals, the chancellor considered that the following aspects, whether individually or cumulatively, would not result in harm to the significance of the church as a building of special architectural or historic interest: replacement of the outer west doors; relocation of the inner west screen doors (the ‘Keene doors’) to the bay of an arch between the chancel and the Lady Chapel; and creation of an entrance foyer at the west end with inner and outer screens and a mezzanine floor above. However, relocating the font would result in harm to the architectural significance of the church and altering its base would result in harm to the historic significance of the church.
Consequently, a faculty for the proposed works, including the relocation of the font was granted, but it will be subject to a condition that the proposed alterations to the font are not proceeded with and that the existing font, base and rails are relocated in their current form. The faculty also authorised the introduction of a removable wooden base. It was a condition that details of the removable wooden base are agreed with the DAC, with liberty to apply to the court in the event that agreement cannot be reached.
The petition sought approval for major re-ordering of this Grade I listed church, including: the removal of pews in the nave and side aisles and the introduction of chairs; the introduction of underfloor heating and the removal of pew platforms; installation of toilets on mezzanine level; relocation of war memorial; remodelling of north entrance; relocation of font to north aisle; provision of nave altar and platform; provision of moveable organ console; re-wiring, new sound system, new lighting system and general redecoration. The proposals before the court had developed over time as the PCC entered into discussions with various bodies that have a part to play within the faculty jurisdiction: English Heritage, The Victorian Society, Society for the Protection of Ancient Buildings, Church Buildings Council, Diocesan Advisory Council, in addition to two letters of objection arising from the public notice.
In applying the principles laid down in Re St. Alkmund, Duffield  Fam 158, the Chancellor noted that the original proposals were far more invasive and far reaching than the revised ones, , and gave particular regard the fact that the proposals changed as the parish clearly took on board the opinions it received, and that it evidences consideration being given to a range of options giving careful reasons for discarding alternatives, . He was “drawn inevitably to the conclusion that the distinct pastoral benefits carefully identified and articulated by the PCC will outweigh such harm as will result from the implementation of these proposals. It may be that in generations yet to come, the changes will come to be seen as something of an enhancement to the building itself as well as to the spiritual vitality of the parish, but that would be mere speculation”.
Faculty granted, subject to conditions, .
Re St. Peter & St. Paul Rustington  Chichester Const Ct, Mark Hill Ch.
The Vicar and churchwarden of a 12th century Grade II listed church sought a faculty for the removal of pews and pew platforms, the installation of underfloor heating, the introduction of chairs to replace the pews and certain ancillary works; a second petition concerns a tree in the churchyard. Following a similar pattern to All Saints, Otley, the PCC entered into discussions with various bodies concerned: English Heritage, The Society for the Protection of Ancient Buildings, Church Buildings Council, Diocesan Advisory Council. The Chancellor stated that the non-engagement by the Victorian Society was disappointing, not least because it denied the court the advantage of the expertise and experience which a national amenity society might be able to offer. Although Arun District Council initially refused planning permission, this was subsequently granted on 2 June 2014.
Public notice produced several letters of objection, many of which were broadly supportive of the overall scheme, which the Chancellor summarised as follows:
“That the choice of [the design of] chair was made by the narrowest of margins at a hastily convened special PCC meeting and that the newly constituted PCC may take a different view. However the vicar appeared to have indicated that the matter is ‘now closed’ which would prevent the choice being revisited;
The Chancellor considered the proposals against the principles in Re St. Alkmund, Duffield  Fam 158; the loss of the pews was not deemed to be significant and the only of special architectural or historic interest is the creation of an additional opening in the historic wall. Overall, however, the harm could not be classified as anything more than moderate, a view supported by the stance adopted by Arun District Council, English Heritage and the DAC.
A faculty was granted subject to conditions, including: a proper archaeological watching brief, as required in the planning permission granted by Arun District Council; any ledger stones which cover interments are to be left in situ under the new floor, save for the three which bear legible inscriptions which are to be repositioned in the chancel; the mensa should not be restored.
With regard to the replacement chairs, the Chancellor noted the strength of feeling within the letters of objection: “these are not bigoted destructive comments from outsiders, but thoughtful and measured observations from people who share the vision for the reordering of this historic church and who will be instrumental in turning that common vision into a lived reality”. He therefore took the view that “there are persuasive pastoral reasons why the PCC should spend a little while reflecting further on its choice of chair, which is why I am placing a condition on the faculty reserving this matter to be determined by me at a later date.”
The petition in Re Holy Cross Scopwick concerns “[t]he proposed disposal … by way of a sale through the Keltek Trust” , its disposal as scrap having been authorized by faculty in 1974, but “[f]ollowing representations from … a well-known bell antiquary, after the Faculty was granted, but before the bell was scrapped, the bell was retained by the church minus its clapper”. However, “[t]he DAC state[d] that it weighs 5 ½ cwts and cannot be easily moved, although it is at risk of theft from metal thieves”, [4, 5].
This evidence submitted by different parties contains a number of inconsistencies, but apart from an early opinion on the acceptance of the bell in question by the Keltek Trust, these were not material to the case. They do, however, suggest a lack of attention to detail by some of the parties, a shortcoming that was shared by the headline in the Sleaford Target – “A Scopwick church bell cast over three centuries ago has been saved from the scrap heap after a church court wrangle”.
The bell in question was cast in 1700 by Humphrey Wilkinson, a Lincolnshire founder and is one of a number of “Wilkinson bells” in use in the diocese; it is minus its clapper and one (or two) of its canons, and of poor tonal quality that has stood, unused, in the nave of the church for 41 years. Understandably, the Petitioners applied to remove and dispose of the bell as it impedes the use of the rear of the Church, and is an obstacle to plans to develop the space at the back of the church; their proposal was for it to be offered for sale through the Keltek Trust. The bell advisor indicated that the Trust would take it “notwithstanding its poor tonal quality, a missing clapper and one canon missing”, [7(ii)]. However, on further enquiry the DAC stated that the Trust had expressed no interest on account of these shortcomings, [9(i)].
The CBC intervened at a relatively late stage, (i.e. after the initial faculty for disposal had been issued on 24 February 2014). It suggested that the bell should be rehung in the tower and funds would be available from the CBC and Heritage Lottery Fund. The rationale for its intervention was based upon the bell’s historical importance: (i) it is one of only a few bells cast by Humphrey II Wilkinson on his own as a bell founder; (ii) it is an early example of his work: this bell was cast in 1700 and only 2 before that date survive; and (iii) the casting appears to be of good quality with clear lettering and 4 of the 6 canons survive. If rehung, however, it could only be used as a service bell, of which the church already has one, which was listed.
The Chancellor restricted his considerations to the authorities relating to the disposal of a “church treasure”, In re St Peter’s, Draycott  Fam 93 and In Re St Lawrence, Oakley with Wootton St Lawrence . The disposal by loan to the diocesan store was analogous to the situation in the latter, in which the Court approved the loan of items to a diocesan treasury where ‘there are compelling reasons why the treasure can no longer be retained in the church’. In these circumstances “such a loan will normally be the sensible solution, greatly preferable to long term deposit in a bank vault, unlikely to excite objection, and likely to be sanctioned by faculty’. The Court stated that proper approach to an application to sell a church treasure was that :
“…chancellors need merely decide whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against sale”.
In the instant case, the Petitioners were in effect submitting that the bell is ‘redundant’ for their purposes: its only possible use was as a service bell, but the parish had already a listed bell rehung, for that purpose in 1974. Although the CBC argued that it should be taken back into the tower and rehung, and therefore was not redundant, this was contrary to the facts: “[t]he most eloquent argument in support of redundancy is that the bell has rested undisturbed on the floor at the west end of the church for 41 years”.
Taking all these matters into account, the Chancellor was quite satisfied that the grounds for disposal are sufficiently compelling to outweigh the strong presumption against not disposing of the bell. A Faculty was therefore granted permitting its removal to the diocesan store, but stressing that this does extend to any other proposal for disposal of the bell.
 According to the DAC Secretary, there are 19 such bells in regular use including 3 for change ringing, and none of these is at risk, [9(ii)]; the DAC bell advisor, however, indicated there were 24 other of these bells in the diocese, [7(iii)].
 Minus one, according to the DAC Bell advisor, ; the CBS state “4 of the 6 canons survive”, [8(iii)].
 An organization that describes its role as “conservation by Re-use: Helping churches acquire surplus and/or redundant bells to be hung for English-style full-circle bell-ringing”.
On 1 April 2015 the organization formerly known as English Heritage separated into two parts: the name English Heritage was retained by the charity that looks after the collections, and Historic England formed to take the role of championing the nation’s wider heritage, running the listing system, dealing with planning matters and giving grants. Whilst “Historic England” is now the body that is involved with the CFCE and the consistory courts, the above references to “English Heritage” and “Historic England” accord with the nomenclature used in the judgments.