This month’s round-up of judgements and determinations within the Church of England

This round-up includes: summaries of the Church’s Independent Reviewer’s reports; determinations of the Cathedrals Fabric Commission for England, (CFCE), at its meeting on 23 July 2015; judgements of the Court of Arches and the consistory courts. Further recent consistory court judgements will be reviewed in a later post.

Reports of the Independent Reviewer

Whilst these are not judgements per se, the reports produced by the Church’s Independent Reviewer, Sir Philip Mawer, provide important guidance in relation to resolving disputes arising from the operation of the House of Bishops’ Declaration on the Ministry of Bishops and Priests. As part of the settlement by which the Church of England agreed to the ordination of women as bishops in 2014, it established an ombudsman-style procedure by which those with concerns about the operation of the new arrangements could appeal to an Independent Reviewer.

The first report was published on 31 July 2015 and concerns a complaint raised by Hilary Cotton, Chair of Women and the Church (‘WATCH’) about the fact that a number of chrism masses were to be held in 2015 at which bishops of the Society of St Wilfrid and St Hilda would preside. However, Sir Philip concluded that the masses are not in themselves a breach of the principles set out in the House of Bishops’ Declaration.

“[r]ather they are a consequence of the underlying division and of the pastoral arrangements the Church has thought it right to make for those who hold the minority view. Provided the masses continue themselves to be conducted within the spirit of the Five Principles, with due sensitivity to the feeling of others, and with full regard to the lawful authority of the relevant diocesan bishop” [42].

Sir Philip issued his second report on 10 August 2015 following a letter from Dr Colin Podmore, Director of Forward in Faith, enclosing an expression of concern about the operation of the House of Bishops’ Declaration in respect of the Parish of All Saints, Cheltenham in the Diocese of Gloucester. As with the earlier report, the grievance was not raised following the passing of an appropriate resolution by the PCC of the parish concerned, as was intention of the Regulation, but was considered to be within the vires of the Independent Reviewer as it raised issues of general application, here “not only legal issues about the authorization of assistant clergy in multi-parish benefices but potentially also an important question of principle concerning the need for clarity in relation to how such authorizations are granted.”

In addition to recommending a review of the licences of the two NSMs concerned, the report clarifies the position in relation to Resolutions A and B, and outlines a procedure in relation to the appointment of a woman to minister otherwise than as a member of the team in a multi-parish benefice, in which one or more parishes has, or is deemed to have, passed the resolution set out in paragraph 20 of the House of Bishops’ Declaration.

CFCE Determinations

At the meeting of the Cathedrals Fabric Commission for England, (CFCE), on 23 July 2015 the following applications were determined:

• Lichfield Cathedral: Removal of school swimming pool It was proposed to remove of a redundant swimming pool from the grounds of the Palace and levelling the ground to create a flat multi-use games area. Written representations were received from Historic England. The proposal was approved subject to: an archaeological watching brief should the removal of the pool and bank require excavation beneath the original land surface, in order to protect of the archaeological resource; when available, full details of the proposed surface, fencing and any other ancillary works and structures to the games area to be provided to the Commission for approval before work commences.
• Lincoln Cathedral: New carving to commemorate Magna Carta As part of the Magna Carta 800th anniversary celebrations Chapter propose to replace one of the missing label stops in the North East Transept with a new carved head of Bishop Stephen Langton. To be carved by the Cathedral’s head carver in Lincoln stone. No submissions were made and the proposal was approved subject to approval of final details by the FAC.
• Norwich Cathedral: New lighting scheme A new interior lighting scheme was proposed, and written representations were received from Historic England, the Local Planning Authority and the Society for the Protection of Ancient Buildings. The CFCE approved the elements of the application relating to replacement of existing lights and fittings with the following condition, subject to the supervision of their installation by the Cathedral Architect.

Within 7 days of receipt of the Notice of Decision of Cathedrals Fabric Commission, [Form 10 (Rule 7), Section 9 of Care of Cathedrals Measure 2011], the administrator of the Cathedral Church was required to display a copy inside and outside the cathedral where it will be readily visible to the public for a period of not less than 28 days.

The next Commission meeting will be on 30 September 2015, at which applications submitted before the 17 August deadline will b considered, and the determinations posted in the round-up following their publication.

Consistory Court Judgements

Spitalfields Open Space & ors v The Governing Body of Christ Church Primary School, [2015], Court of Arches

The Court of Arches considered the judgement In the Matter of the churchyard of Christ Church Spitalfields [2014] London Const Ct, Seed Ch. in which an application for a restoration order pursuant to the provisions of section 13(5) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, (CCM), was refused. The judgment is prefaced, [1] with the explanation:

“These are highly unusual proceedings both in respect of the subject matter of the application and the procedures by which it was determined, below,”

and the proceedings are summarized, [2] as:

“On 1 August 2014 the First Appellant issued an application seeking (amongst other relief) a restoration order under section 13(5) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (“the CCM”) in respect of a school building (“the Building”) erected by the First Respondent between Autumn 2012 and Spring 2013 on a churchyard/disused burial ground (“the Site”), immediately adjacent and to the south of Christ Church, Spitalfields (“the Church”).

The Francis Taylor Building web site gives further background in Victory for Parishioners over Unlawful Building in Spitalfields Churchyard which states:

“A landmark decision by the Court of Arches has cleared the way for a group of parishioners to bring a challenge to the erection of a building in the consecrated churchyard of Hawksmoor’s baroque masterpiece, Christ Church, Spitalfields, where thousands of human remains lie buried. The concerned parishioners, who had formed a company, Spitalfields Open Space Limited, sought a restoration order under section 13(5) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.

The Chancellor of the Diocese of London declined to entertain the application styling it ‘a blatant abuse of the process of the court’. His refusal was overturned by the Court of Arches which … ordered the matter to proceed to a full hearing”.

Whilst the judgment, therefore, did not address the detail of the restoration order that had been sought by the Appellants, it did consider important legislative issues in this area, and concluded that there was a proper case to be heard as to whether the erection of the school building amounted to a breach of section 3 of the Disused Burial Grounds Act 1884 under which ‘it shall not be lawful to erect any buildings upon any disused burial ground’.

Nevertheless, there were at least four important matters of statutory interpretation which were raised in skeleton arguments or during oral argument at the hearing of the appeal which were not for this court to resolve at this stage, [12]:

a) the interpretation of the expression “unlawful under ecclesiastical law” in s.13(5) of the CCM;

b) the ambit of the phrase “restoring the position so far as possible to that which existed immediately before the act was committed” in s.13(5);

c) the construction of the Ministry of Housing and Local Government (Provisional Confirmation Order) (Greater London Parks and Open Spaces) Act 1967, [“the MHLGA”], or its application to the Building; and

d) the interpretation of the new s.18A(1) of the CCM.

With regard to the earlier grant of a faculty, the court held that this did not mean, as the Chancellor had wrongly held, that the issue had been settled, particularly given the misrepresentation in the petition relating to the land in question not being consecrated. The Dean ruled, [50]:

‘The true analysis, for which counsel for the Appellants contended and contend, is that a faculty is merely permissive. It does not compel the construction of the works it permits, nor can it [save pursuant to a change in the law which post-dates the first instance decision] authorise a breach of the Disused Burial Grounds Act’

Allegations of harassment made by the vicar and churchwardens against Spitalfields Open Space were rejected by the court which concluded ‘the public interest requires that the matters raised by the restoration proceedings be properly investigated’. The appeal was allowed in respect of all three findings of the chancellor, and the application for a restoration order remitted to the London consistory court to be determined by the deputy chancellor, or if unavailable, by a chancellor of another diocese within England, as directed by the Bishop of London:

“71. It will be for the deputy chancellor to give appropriate directions for the expeditious resolution of the application, including (if appropriate) directions in relation to the resolution of such preliminary issues as he may identify. It may be that he is also called to determine a petition for a confirmatory faculty, to which [the court] previously made mention.”

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Re All Saints West Dulwich [2015], Southwark Const Ct, Philip Petchey Ch.

All Saints, West Dulwich is a large Tractarian Gothic Church, completed in 1891, seriously damaged during the Second World War, and later by fire in 2000. After the fire it was sympathetically restored, extended and reordered, “and may well continue to deserve the pre-fire Grade I listing”. The above link to the judgement includes a number of relevant photographs. The petition concerns the proposed use of an existing lavabo and its niche to provide an aumbry for the reservation of the sacrament. The work will be fully reversible and the lavabo will continue to exist behind the aumbry.

The PCC resolved to apply for a faculty (15 for, 1 abstention) and the DAC recommended the proposal subject to two minor provisos. The DAC advised that in its opinion, the work would not affect the character of the church as a building of special or architectural interest, and as such not particular requirement for consultation arose.

However, the Chancellor considered that the conversion would affect the building’s character, reasoning: the fact that an alteration is beneficial does not mean that it is inconsequential. Accordingly, he directed that the local authority, English Heritage, and the Victorian Society be given special notice, and the proposal be advertised on the diocesan web site. The Victorian Society responded, concurring with the Chancellor that the proposed installation of an aumbry will by altering a significant feature of the grade-I listed churches affects is character as a building of special architectural and historical interest. Nevertheless, it did not object in principle in view of the design of the aumbry and the reversibility of the proposed change. The Society for the Protection of Ancient Buildings, (SPAB), deferred to the views of the Victorian Society. There were no other responses.

The Chancellor reviewed the petition with regard to the questions raised in Re St. Alkmund Duffield [2013] Fam 158 in relation to this outstanding example of a late Tractarian Gothic Church, for which its restoration would in time become an historic feature. He held that that proposal would result in significant harm since: the lavabo is prominent in the east end of the church and makes a positive contribution to the architectural design, commenting

“I do not think that altering things so that the lavabo is not visible can be described as not involving harm because it does not involve in the greatest degree of harm”.

He added that Duffield made clear that when making a judgement of this kind, it is natural to make an overall judgement; it was necessary to consider the possibility of harm to a particular architectural feature, as in this case, before going on to hold that overall there was benefit. Balancing the harm through the loss of the lavabo with the not altogether convincing benefit from the new aumbry, he deferred to the view of the diocese’s Inspecting Architect; he concluded that there was no overall harm to the special architecture of the church, although there was some inevitable harm to its special historic character through the loss of an important feature.

There was clear and convincing justification for carrying out the proposal, and the resulting public benefit would outweigh any harm. Faculty granted; however, since similar issues arose in relation to a subsequent petition for handrails to three staircases, he directed that a special notice be sent to Historic England, the local authority, the Victorian Society and the SPAB, and the proposal be advertised on the diocesan website.

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Re Brighton St. Peter [2015] Chichester Const Ct, Mark Hill Ch.

Although this was an unopposed petition of the vicar and churchwardens of St Peter’s Brighton seeking a faculty to reintroduce choir stall pews into the Lady Chapel, the chancellor delivered what he referred to as “an unduly lengthy judgement,”

“but due to its unusual history and background and in deference to the strength of feeling evinced by the Victorian Society in correspondence albeit not pursued by way of formal objection, [he has] been more expansive in articulating [his] reasons”, [para. 30]

Furthermore, the petition relates to an issue of current importance – a “church plant” – and in this case Holy Trinity Brompton, (HTB), took over the church on a 125 year lease following its closure and 30 people moved from HTB to make St Peter’s their regular place of worship; as a consequence, numbers grew steadily, but many of the internal furnishings were inimical to the mode of worship adopted by the new and growing congregation.

The Chancellor congratulated the community at St Peter’s in their marshalling of its resources and generous grants such as £117,000 form English Heritage, to ensure that the tower and other parts of the external structure have been made safe and in a proper state of repair. He commented, [9],

“I am conscious that had HT known of the haemorrhaging sums of money that would need to be spent on the fabric of the building, it might well not have embarked upon this ambitious church plant. Its stoic loyalty and determination in the face of seemingly unending difficulties is to be commended. It demonstrates their commitment to and faith in the venture”.

In 2011, the Archdeacon granted a licence for temporary re-ordering, which included removal of the nave and choir pews to storage, and in 2012 a faculty petition sought authority for this arrangement to be made permanent; the Chancellor authorized the permanent removal of the nave pews, but decided that to give further time for experimentation, consideration of the permanent removal of the choir pews should be deferred and be the subject of a petition at a later date, if the petitioners still wished the choir pews not to be restored to the choir.

This 2015 petition proposed returning the choir pews, but to the Lady Chapel, instead of to the choir. The chancellor noted:

“Back in 2012, the petition then presented was properly described by counsel for the Victorian Society as premature. The parish’s longer term plans for the internal reordering of the church remained inchoate.

The petitioners then made a satisfactory case for the permanent removal and disposal of the nave pew, save for half a dozen of the best quality which were to be retained as representative samples. However, different considerations applied to the chancel choir stalls, [paragraphs 14 to 20 of the 2012 judgement, reproduced at paragraph 7]. A faculty was granted in respect of the former, but which otherwise preserved the status quo. For the choir stalls, a timetable was prescribed for periodic progress reports to be lodged at the registry leading to the submission of this further petition.

This represented a compromise solution that had emerged over time and for which there was near consensus from: English Heritage, [11,12]; Church Buildings Council, [13]; Diocesan Advisory Committee, [14, 15], and the Victorian Society, [16, 17] who accepted the solution although they noted: the interim 2012 position represented “a major compromised of the heritage significance of the church to the needs of the parish”; and the relocation of the choir stalls to the Lady Chapel from “their proper place in the chancel” would be both harmful and unnecessary.

In applying Re St. Alkmund Duffield [2013] Fam 158 the chancellor held that their removal from their historic home would result in “distinct and observable harm” but not quite as severe as the Victorian Society suggested.

On the justification for the proposal, the Chancellor was impressed at the reversal of fortunes of the formerly ailing church, and whilst the style of worship “may not be to everyone’s taste … the sense of vitality and active engagement with worship and mission is undeniable”. He was in absolutely no doubt that the benefit to the worshipping community and to the wider civic community would outweigh any harm which would result from the re-siting of the choir stalls. Faculty granted.

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