Highlights of recent consistory court judgments

Further to our earlier round-up of recent judgments and determinations, highlights of this latest  batch of consistory court proceedings are: considerations of the liability of incumbent and PCC in relation to health and safety issues; and the implications for the “amenity societies” when they choose not to become formal parties to a case. Other cases focus on issues associated with reordering and building works.

Incumbent and PCC liability

Re Holy Trinity Northwood [2015] Lichfield Const Ct, Stephen Eyre Ch. This case is important since it addresses the duties under the Occupiers Liability Act 1984 that are “owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them.”

Readers’ appreciation of this case will be assisted by viewing the Google Street View images of the church and its surroundings, or those shown on thepotteries.org site. The Ecclesiastical Law Society summarizes the case:

“[t]he church is surrounded on three sides by iron railings with a bar at the top surmounted by finials in the shape of a fleur-de-lys. In 2014 a child climbed the fence in an attempt to recover a Frisbee, which had flown into the churchyard. The child slipped and impaled his head on one of the finials, causing damage to his jaw. The PCC sought to remove the risk of another similar incident by seeking permission to place a bar across the tops of the finials. Notwithstanding that the Diocesan Advisory Committee did not approve the proposal, but suggested alternatives, the Chancellor granted a faculty.”

The petition states, [3]:

“The Petitioners are concerned to avoid the repetition of such an incident. The Petition states that the proposed course ‘has been strongly advised by the church insurers (Ecclesiastical) in order to effect compliance with the Occupiers Liability Act 1984’.

As will be seen the advice given by Ecclesiastical Insurance is in fact considerably less stark than the Petitioners assert. Nonetheless, this is a case where the Petitioners are motivated by a concern as to the potential danger to children in circumstances where one accident has already occurred.”

No doubt the Petitioners are equally motivated by their liabilities in tort and under the Act. Nevertheless, it is apparent that there are a number of different viewpoints from which these duties might be considered:

– those of Ecclesiastical Insurance, which additionally has its own position to consider [regarding future claims];

– those of the DAC, of which the chancellor noted, “I am conscious of the expertise of the members of the Diocesan Advisory Committee in respect of matters of aesthetics”, which are addressed in their alternative suggestions, [8];

– those of the incumbent and PCC, with whom liability ultimately lies.

This is clearly a situation in which an assessment needs to be made balancing the evident hazard, as witnessed by the recent incident [health and safety professionals eschew the word accident], against the potential risk of a future occurrence. The chancellor noted with approval the “wholly proper stance” of the insurers which suggested [9]:

“consideration of the existing hazard and any remedial action which could be undertaken to reduce the risk of future accidents … removal of the railings or making them safe by the removal or blunting of finials as an option but other methods of preventing injury could also be considered”

and concluded

“it was essential that the Parochial Church Council “undertake a risk assessment of the hazard looking at remedial action which could reduce the risk to an acceptable level. … It may be that no further action is required …”.

Following a site visit and an assessment of the options suggested by the DAC, the chancellor concluded:

“[18] …There is certainly real scope for saying that [the Petitioners’ proposals] would be more attractive than straight railings simply topped by a bar. It is clear that the adoption of any approach involving alteration to the railings is likely to result in a less pleasing appearance than that of the current railings. That is regrettable but it is legitimate to give the concern about the safety of children priority over the effect on the appearance of the railings. This is particularly so giving that the railings do not contribute to the special significance of this church and are not mentioned in the listing description.

[19] In those circumstances the Petitioners have established that there are good grounds for taking action in respect of the railings. Once that is established, the Petitioners have also shown that there are sound and legitimate reasons for adopting their proposed solution in preference to the possible courses of action put forward by the Diocesan Advisory Committee. Accordingly, I direct that faculty be granted.”

Involvement of the “amenity societies”

The involvement of the “amenity societies” under the provisions of the faculty regime is an important matter for petitioners and the society alike, and the conduct of each was subject to criticism in the following cases: PCCs in relation to their management of their part of the consultation process, and the presentation of the material to the court; and the amenity societies for their lack of engagement, and the weight given to their views as a non-party.

Also relevant is Re Brighton St. Peter [2015] Chichester Const Ct, Mark Hill Ch., reported earlier, in which the chancellor corrected the view expressed in the Victorian Society’s correspondence, and stated that:

[18] … electing to become a party opponent does not necessarily expose all parties to costs, particularly when a matter is determined on written representations. The decisions of an amenity society to become a party opponent should be rooted in the merits or otherwise of the proposal and to the strength or otherwise of its opposition.”

In this case, however, the chancellor was prepared to take into account the various observations of the Victorian Society, mindful that there had already been one hearing in the consistory court to which the Society was a party.

Re St. Aidan Skelmanthorpe [2015] West Yorkshire and the Dales Const Ct, Mark Hill Ch.

The petition concerns the construction of an extension at the west end of the south elevation to provide a lobby toilets and kitchen; also included is a proposal to relocate the font. The church is grade II listed and dates from 1894; the Norman font, however, has a much more chequered history being sculpted for High Hoyland in 1080, discarded in the eighteenth century and had become used as a cattle trough before being recovered and donated to St Aidan’s when the new church was under construction.

Kirklees Council had granted planning permission on 25 February 2015, [3], and no objections were raised by Heritage England, [5] or the DAC, [4], which had issued a Notification of Advice on 10 March recommending the works. Support was also given by the Church Buildings Council, [14], and no letters of objection were received at the registry following the public notice, [15].

The situation in ascertaining the position with the Victorian Society was more complicated, in view of uncertainty in whether it had seen the relevant paperwork, [6 to 13]. In view of the broad level of support contained in its email of 20 May 2015, the chancellor came to the conclusion, on balance, that it did not object to the proposal. However, he emphasized “every parish should keep a detailed record of its communications with consultative bodies, since the proof of the petitioners required a demonstration of the objections, or otherwise, of the consultative bodies approached” ; “the unsatisfactory state of affairs perhaps reinforces the importance of parishes taking the driving seat when consultation is taking place”, [12].

Applying Re St. Alkmund Duffield [2013] Fam 158 the chancellor agreed with the DAC that the proposal would affect the character of the church as a building of special historic or architectural interest, but the level of harm would be low. The Statement of Needs was cogent and convincing, and it was readily apparent that the public benefit would outweigh such harm as might result. Faculty granted.

Since the Victorian Society had not engaged with the parish “as fully as it ought”, it had ipso facto forgone its opportunity to comment further on the materials proposed for use in the extension, and no additional consultation was therefore required. However, the chancellor invited the petitioners and the inspecting architect to have regard to “lack of alertness” evident in the design of the plinth to the details of the Victorian building and the Norman font.

Re St Margaret Horsforth [2015] West Yorkshire & The Dales Const Ct, Mark Hill Ch.

The proposed reordering of St Margaret, Horsforth involved: construction of a dais, extending the chancel outwards beyond the choir and into the nave; removal of the back rows of choir stalls and re-positioning of the front rows; carpet for the dais and choir area; a portable altar and communion rails; alterations to the chancel arch; making the Lady chapel pews free-standing; and the removal of pews from the south aisle, to create a children’s area. After considering the guidance given in Re St. Alkmund Duffield [2013], the Chancellor granted a faculty.

However, with regard to the Petitioners, he noted:

“[1] … The Schedule of Works or Proposals is somewhat confusing and does not fully and comprehensively set out what the parish is seeking, leaving much of what is proposed to be divined from an inspection of various plans … I do, however, put down a marker for the future that both the Schedule on the Petition and the Public Notice must describe the proposals with sufficient particularity, failing which an amended Petition and a fresh display of Public Notice will be required, which is likely to delay the determination of the matters,”

and in the case of the Victorian Society,

“[7] …I have taken full account of all correspondence from the Society, together with the various reflections and responses from the parish, but I also attach weight to the fact that the Society does not consider this a case which merits its intervention as a Party Opponent.

[…]

[13] There is a clear dissonance between the views expressed by the Society and the vision of the parish. Each position is valid, but I confess I would have found the opinions of the Society more convincing had a representative accepted the invitation to visit the church, as Historic England had done, and engaged more constructively with the points raised by Mr Sinclair on behalf of the petitioners.”

Other recent consistory court cases

The Ecclesiastical Law Association summaries of the following cases are reproduced below, and hyperlinks to these and to the above cases will be inserted when they have been uploaded on its web pages.

Re St. Francis of Assisi West Wickham [2015] Southwark Const Ct, Philip Petchey Ch. Faculty granted for the replacement of the church light fitting installed in 1970 with a combination of wall washer lights and fixed lights.

Re St. Mary Magdalene Davington [2015] Canterbury Const Ct, Steven Gasztowicz Deputy Commissary General Re-ordering proposals included the provision of a meeting room (with glass front); servery and toilet facilities; a gallery above the proposed meeting room; an upgrading of the heating and lighting installations; and moving both the font and war memorials to new locations within the Church to accommodate the works. The guidelines in Re St. Alkmund Duffield [2013] were considered. A Faculty was granted.

Re St. Luke Formby [2015] Liverpool Const Ct, Mark Hedley Ch. The proposals included removal of the choir stalls and pulpit; introduction of a nave dais to allow a forward altar; the addition of a second screen to the wall behind the present pulpit to match the existing screen on the south side of the church; two flat screen monitors to the chancel; two loudspeakers in the chancel; and relocation of the AV control desk to the rear of the church. The Victorian Society objected to the removal of the pulpit and choir stalls. Faculty granted by the Chancellor, being satisfied that “in order to provide a living church, meeting the pastoral and liturgical needs of the current population, this reordering needs to take place.”

Re Christ Church Croft with Southworth [2015] Liverpool Const Ct, Mark Hedley Ch.The Petition sought to make permanent a temporary reordering carried out under an Archdeacon’s licence: to relocate the altar to the nave; to remove two front pews (one from either side of the aisle) and making good the floor; and to install two portable communion rails. The Victorian Society and five parishioners objected to the proposals, but did not become parties to the proceedings. The Chancellor was satisfied that the changes did not make a significant impact on the character of the church, and that what small impact they made could be justified by the improvement of access and circulation.

Re St. Matthew & St. James Mossley Hill [2015] Liverpool Const Ct, Mark Hedley Ch. A substantial internal reordering was proposed for a Grade II* listed church, as well as extensive external works. There were objections from the Victorian Society and several individuals, none of whom sought to be parties opponent. The principal objection of all the objectors was to the removal of the pews (to be replaced with upholstered chairs). The pews were installed in 1952, to replace the former pews destroyed by bomb damage to the church during the Second World War. The Chancellor was “satisfied that the benefits that are potentially available significantly outweigh [the] detriment and that the interests of this church in terms of its remaining a living entity for generations to come requires change rather than no change.” Faculty granted.