A summary of recent consistory court judgments and CFCE determinations
Included in this post are: a comment on the proposed Neutral Citation for ecclesiastical judgments, the consistory court judgments listed below, and the CFCE Determinations from the meeting on 30 September 2015.
Consistory Court Judgments
- Re Christ Church Spitalfields  Court of Arches. Appeal on refusal of application for restoration order in consistory court, here.
- Re St. Mary Southgate  Chichester Const Ct. Building works to reverse decay.
- Re St. Mary Ringmer  Chichester Const Ct. Removal of two pews.
- Re All Saints with St. Lawrence, Evesham  Worcester Const Ct. Removal of all pews from Grade 1 church.
- Re Putney Vale Cemetery  Southwark Const Ct. Exhumation in accordance with Buddhist rites.
- Re St. Leonard Beoley  Worcester Const Ct. Exhumation of “Shakespeare’s skull” from vault*.
- Re Christ Church Lye  Worcester Const Ct. Felling of two trees in churchyard.
The Ecclesiastical Judges Association has decided that neutral citations should be introduced for judgments of consistory courts, in line with the practice for citing judgments of the secular courts. Details will be posted when the format has been finalized.
Consistory Court Judgments
Re Christ Church Spitalfields  Court of Arches
There have been some minor amendments to the Court of Arches judgment in Re Christ Church Spitalfields, first reported here. The Ecclesiastical Law Society’s All Souls and All Saints Newsletter includes a summary of the revised case report, and a fuller analysis will be included in the next issue of the Ecclesiastical Law Journal.
[Top of page] [Link to judgment]
Re St. Mary Southgate  Chichester Const Ct, Mark Hill Ch.
St Mary, Southgate, is described as being in “a light Brutalist style, the stand-out architectural features being the East wall and the dramatic exposed concrete structures internally that emphasise the curving forms”. Readers seeking further enlightenment can see a “before” photograph (and an unflattering description) here and the proposed changes here. Although not listed, Pevsner recognised the significance of the church which is described as “a major structure within the Southgate Neighbourhood Conservation Area”. The church was built in 1958 at a cost of over £41,000; the Chancellor noted “medieval masons would be mystified at the relatively short shelf-life of buildings designed and built in the last century”.
He was “perfectly satisfied that the case for reversing the decay within this building due to water ingress and poor insulation is well made out … At the core of this petition is whether there may be another means of addressing these concerns which is less intrusive”.
The Twentieth Century Society was not a party opponent to the proceedings, although its concerns expressed in a letter were taken into consideration; the Chancellor noted the need for the Rule Committee to revisit the associated procedural issues, ,
“It may be that the interplay between r 8.5 and r 9.3 needs re-consideration by the Rule Committee since, as in this case, their combined effect can lead to procedural delay. The anomaly continues in the incoming 2015 Rules (r 9.5 and r 10.3 respectively): on a strict reading, an amenity society which elects to send representations in the form of a letter under r 9.5(1)(a) in preference to particulars of objection would appear to have a second opportunity of becoming a party opponent under r 10.3. I cannot imagine that this was intended by those framing the rules as the language of r 9.5 is suggestive of finality as between the alternative methods of proceeding.”
The Chancellor addressed each of the three points raised by the Twentieth Century Society: roof covering, ; windows, ; and West elevation, . He concluded that the petitioners have put forward a cogent and compelling case and discharged the burden of proof in satisfying the court, and a faculty should issue, subject to such revisions as Mr Tilley [the parish’s inspecting architect] has commended in his letter.[Top of page] [Link to judgment]
Re St. Mary Ringmer  Chichester Const Ct, Mark Hill Ch.
A Faculty was sought by the churchwardens and honorary treasurer of St Mary, Ringmer for:
- the removal of two short pews at the west end of the south aisle of this church and provision of additional bookshelf units;
- 11. the removal of the rearmost pew on the south side of the nave to provide additional space for wheelchair users.
The DAC recommended the proposals and Historic England expressed no objections in its letter, which commented “[t]he proposals are considered to be modest involving the removal of a very small number of fairly standard Victorian benches”. However, letters of objection were received from Mr A R Peters MBE indicating:
- removal of these pews is that situated as they are they serve an ideal position for sidesmen of church watchers or for any member of the congregation who is late or wishes to leave early with small children; and
- the two pews in question are occupied almost every Sunday morning by two families with young children and we get few enough of these without removing pews which they find convenient.
Applying the Court of Arches’ questions in in Re St Alkmund, Duffield  Fam 158, the Chancellor had no hesitation in concluding that the proposals would not result in harm to the significance of the church as a building of special architectural or historic interest. As a consequence, there was no need to consider questions (3) to (5). Mr Peters objection were rejected since it was based on the utility of the pews during services and not upon the deleterious effect upon the building which would be occasioned by their removal. He added, ,
“The pews do not need to be retained for ‘church-watchers’ since they can perform their responsibilities to equal or better effect from other locations within the church. Further, I do not consider it proper for a consistory court to resolve a faculty petition in such a manner as to encourage parishioners to arrive late for divine service or to leave early. That would be to send out a very unfortunate message to the diocese.”
Faculty granted. [Top of page] [Link to judgment]
Re All Saints with St. Lawrence, Evesham  Worcester Const Ct, Robert Fookes Dep. Ch.
Unlike the modest removal of two short pews in St Mary Ringmer, this petition sought a faculty to authorize the removal of all the pews from a Grade I listed church and their replacement with 360 Howe 40/4 chairs to facilitate “flexible use of the space in the nave”. The church is listed Grade I, largely of fourteenth to sixteenth century fabric but restored in 1874-6 by Frederick Preedy – a notable ecclesiastical architect who originally practised within the diocese but after 1859 his practice was based in London and covered the southern counties of England.
The petition for the faculty, made by the Reverend Andrew Spurr, Mrs Lindsay Ladbrook and Mrs Helen Gray, had resulted in objections lodged by the party opponent Ms Anne Elizabeth Schmidt and by sixty three others who submitted letters of objection.
The Deputy Chancellor applied the questions in Re St Alkmund, Duffield  Fam 158, and agreed with English Heritage that the proposals would have a negative impact on the architectural character of the church and its significance if all the pews were to be removed; the pews contribute to the historical interest of the evolution of this Grade 1 church and that their removal would harm that recorded historical interest; such a negative impact to the special architectural and historic significance of the listed building does constitute harm to be considered under Question 1, and not under Question 2. He held that, ,
i) some further removal of pews from the aisles and transepts alone would cause slight harm to the special architectural character of the Church as listed and to its historical interest, both of which interests arise from the work of Preedy carried out as a piece before the building was listed.
ii) removal of pews from the aisles and transepts and some of the pews from the nave would cause moderate harm to those special architectural and historical interests.
iii) removal of all the pews from the aisles, transepts and nave would cause significantly serious harm to this Grade I building in terms of both the architectural character and the historical interest of the church both of which are, in part, derived from the comprehensive re-ordering carried out by the architect Frederick Preedy.
The degrees of harm arise because, the architectural and historic importance of the Preedy re-ordering are both equally important contributors to the character of the church. Removal of all the pews would be an irreversible change and a harmful loss of an important element of that re-ordering ensemble. In my judgment, that degree of harm would be significantly serious for this Grade I church”.
The Deputy Chancellor concluded that the removal of all the pews would seriously harm the listed building, although he was able to direct that a conditional faculty should issue, notwithstanding the moderate harm to this Grade I Church that would arise from a reduced proposal, i.e. replacement of about half of the existing pews, . It was held, , that a faculty should issue for:
- The removal and disposal by sale of 25 of the existing pews
- The replacement of those pews with 125 Howe 40/4 chairs, 72 of which should have arms
subject to conditions that:
- No removal or disposal of pews hereby authorised shall be made before the Parish has paid the outstanding unpaid parish share from 2009 to the date of the proposed removal or until the written agreement of the Diocese has been given to waive those arrears in payment and, in either case, before written confirmation of payment or waiver has been given to the Registrar by the Diocese.
- No removal or disposal of pews may be made before the fire regulations for the linking and fixing of moveable chairs has been ascertained and supplied to the Registrar.
- No removal or disposal of pews or placing of chairs may be made in the Nave before details of the proposals for rendering heating grills safe have been submitted to and approved by the DAC.
- In the disposal of any pews, those in the worst condition shall be disposed of first.
- The Churchwardens’ pews at the west end and the pews in the Chancel shall not be moved.
- The permitted removal of pews from the nave is to facilitate its flexible use whilst retaining the historical associations and accordingly pews shall not be removed from the nave for more than 60% of any month.
The applicants were fortunate in the Deputy Chancellor’s tolerant accommodation of their approach to the project. However, the financial constraints imposed by condition 1. appear to be key to its viability. [Top of page] [Link to judgment]
Consistory Court Judgments – Postscript
Prior to publishing, we received notification of the three further judgments, summarized below. In view of the issues raised, they will each form the basis of future posts.
Re Putney Vale Cemetery  Southwark Const Ct, Philip Petchey Ch.
The petitioner, a Vietnamese, wished to exhume the remains of his father, which had been buried in Putney Vale Cemetery according to Vietnamese Buddhist rites, and to re-inter the remains in another part of the cemetery, next to the grave of his mother. This judgment includes a consideration of Articles 8 and 9 European Convention on Human Rights, and the application of Re: Blagdon Cemetery after Dodsbo v Sweden. [Top of page] [Link to judgment] [Link to review]
Re St. Leonard Beoley Worcester Const Ct, Charles Mynors Ch.
The Chancellor refused to grant a faculty to authorise the temporary removal from the vault beneath the Sheldon Chapel of a skull, possibly that of William Shakespeare, to enable the carrying out of a detailed archaeological investigation to include laser scanning, radio carbon dating, and an anthropological assessment. The Chancellor found no scholarly or other evidence to support the story that the skull was that of William Shakespeare. The approach of church courts to such requests is of on-going interest given the recent success in the identification of the remains of Richard III in Leicester. [Top of page] [Link to judgment] [Link to review]
Re Christ Church Lye Worcester Const Ct, Charles Mynors Ch.
A faculty was granted for the felling of two trees which were causing damage to a nearby house. The judgment considers: the liabilities associated with closed churchyards where the upkeep has been transferred to the local council; nuisance under common law; and the interplay of the ecclesiastical and secular authorities. [Top of page] [Link to judgment] [Link to review]
At the Commission meeting on 30 September 2015 the following applications were considered:
Gloucester Cathedral, solar panels: To install around 180 solar photo-voltaic panels in a continuous array across the south slope of the nave roof of Gloucester Cathedral. This will generate around 27,000kW p/a, in order to reduce reliance on fossil-fuel created electricity by 20% in line with the Church of England’s Shrinking the Footprint policy.
Representations in were received from SPAB, [letter of 21 September 2015], indicating no comments, and the application was approved.
Newcastle Cathedral, removal of redundant clock casework: The structure was thought to date from the 1820’s when an early clock was replaced. The shaft is of interest but has been carefully recorded by the archaeologist. It is however “a very standard timber construction and has no intrinsic value”.
A letter indicating no objection was received from Historic England, and the proposal was approved subject to the conditions:
- That a full visual and written record of the casing is made before and during dismantling, and a copy of both deposited in the cathedral archives.
- That the cathedral archaeologist maintains a watching brief over these works and is empowered to stop works for further investigation if he deems it
Winchester Cathedral, lighting: Winchester Cathedral’s existing lighting arrangements are outdated, ineffective and potentially dangerous. Many fittings are now obsolete and beyond repair, some wiring is so ancient as to be hazardous and the number of lights now out of commission risks making some areas inaccessible. A partial upgrade took place over 40 years ago but some of the wiring and mains cabling is over 80 years old.
Chapter therefore decided to apply to CFCE for approval to upgrade and modernise the lighting system to modern light distribution and management standards. The proposed scheme in this submission reflects the belief of Chapter and the Fabric Advisory Committee that doing nothing to the current lighting should no longer be an acceptable option. The scheme aims to develop a coherent, integrated and versatile scheme for Winchester Cathedral while incorporating the requirements of the widely differing areas within the Cathedral. The scheme also aims to be fully fit for the years ahead.
The application was approved, subject to the condition that the final details of new fixings into the fabric are agreed with the Cathedral Architect, in order to ensure the protection of the historic fabric.
York Minster, nave lighting: Replacement of outdated light fittings, and replacement with LED fittings in similar locations; updated lighting at triforium level. The proposal was approved subject to:
- A further trial takes place that before details of the new luminaires and their fixings are finalised. The trial should include one or more representatives from the Commission or its Technical Panel and should review;
- Supply of information not provided in the application on: the finish of the fittings; the dimming facility; anti-glare measures; a column capital with the existing fittings removed and the new fittings located in their intended positions; the lighting of the King’s Screen; the potential for the design to be applied to the future lighting of the transepts.
Future CFCE determinations
At the next Commission meeting on 19 November 2015, the following applications will be considered:
Canterbury Cathedral: Christ Church Gate conservation Consent is sought on the principles for the conservation of Christ Church Gate; trails for cleaning and in-situ plastic repair; the principle of re-presentation of a polychromatic decorative scheme for the gate; the appointment of suitable person(s) for specialist research and design specification.
Canterbury Cathedral: Nave and west towers conservation The application, presented as a Stage 2 ‘Concept’ Report establishes the need and outlines the philosophy foe the conservation and repairs of the Nave and West Towers of the cathedral.
Canterbury Cathedral: Chapel of Unity cladding repairs: The Proposal concerns the securing of the slate cladding on the Chapel of Unity by means of screw fixings with the slates in situ, and repointing as necessary. The hole drilled to insert the fixing for the slates will be filled and concealed with a mix of slate dust and resin. The proposal is to fix every other slate course at high level (top third of the Chapel) and then adopt a less intensive approach lower down dependant on a detailed inspection to ascertain the extent of loose slates
Gloucester Cathedral: Project Pilgrim 1 – New Cathedral Green. To create a welcoming open space in the heart of the City of Gloucester; To remove the car park from Upper College Green and landscape the area to create liturgical and public space, to create level access to the west end of the Cathedral, and to reconfigure Lower College Green.
Gloucester Cathedral: Project Pilgrim 2 – Entry and welcome area. To reorder the entrance to the Cathedral and the west end welcome area; 2.1 To renew the stone floor of the south porch in York stone and to fit new lighting; 2.2 To remove the existing Edwardian wooden draught lobby; 2.3 To create a new draught lobby of glass and steel with double doors on all sides; 2.4 To create new glazed doors to the Cloisters to enable the view through to be seen; 2.5 To install new lighting for the west end of the Cathedral.
Gloucester Cathedral: Project Pilgrim 3 – Access for all. To ensure wheelchair access throughout the main floor plan of the Cathedral; 3.1 To remove two chair lifts (from the north transept and south ambulatory); 3.2 To install a new platform lift in the north transept to the Quire level via St Paul’s’ chapel; 3.3 To install a new platform lift in the north ambulatory to ensure access to the east end.
Gloucester Cathedral: Project Pilgrim 4 – Tribune Gallery. To develop the Tribune Gallery as a key space for the interpretation of the building. 4.1 To replace the current safety ‘boards’ with glazed panels.
Gloucester Cathedral: Project Pilgrim 5 – Lady Chapel. To comprehensively conserve, enhance and re-present the Lady Chapel, in order to improve conditions for users and for the good of the building fabric.
Guildford Cathedral: new sculptures. Commission of a sculpture on the existing blank stone block which is located externally on the east elevation of the Tower. A stone statue reflecting on the Centenary of the First World War, focusing on themes of sacrifice, hope, reconciliation and salvation. The concept is to represent both the sacrifice and determination of the mothers of World War One soldiers and their hope in salvation through God. Specifically it is a representation of a mother and child.
Guildford Cathedral: Stag Hill development. Development of the land to the South and East of the cathedral, and building of 134 dwellings, a mix of affordable and private houses as well as replacement accommodation for clergy and cathedral staff.
Peterborough Cathedral: Garden House archaeological excavation. Evaluation trenches in Garden House area of Precincts. Nine trenches, from 2m x 5m to 2m x 10m, to be excavated partly by machine and partly by hand to inform on the archaeological features and deposits in this area of the precincts. Their location and size are guided by a desk top assessment and by a GPR survey and they form part of the pre-application works relating to a possible development in this area of the precincts.
St Albans Cathedral: Amphibalus Shrine: To restore and conserve the Amphibalus shrine base and to re-locate it in the present Chapel of the Four Tapers in the SE angle of the retrochoir. The position of the Chapel means that the Amphibalus shrine will be seen as the termination of the south aisle of the Cathedral, on the route leading from the new main slype entrance via the Amphibalus shrine and the retrochoir to the Alban shrine.
St Albans Cathedral: new welcome centre. To build a new Welcome Centre/enhanced entrance on the area currently known as the “Monk’s Graveyard” between the Chapter House and the south east wall of the Cathedral. Most visitors approach and enter the Cathedral from the east, through Sumpter Yard. It is for this reason that the new Welcome Centre building is proposed at this location. It is very important, therefore, for visitors to be greeted by an engaging and attractive entrance space which affords easy and compliant access to the Cathedral and Chapter House
St Albans Cathedral: wall paintings projection. To re-create selected Wall Paintings in the nave using projected light as part of the re-interpretation of the Cathedral under the Heritage Lottery Fund project, “Alban, Britain’s First Saint”. Light projectors will be sited in the triforia level of the nave and focused on four of the south facing wall paintings. The intention is to re-create the colouration (that can be identified) of the paintings to allow visitors to see some of the visual experience of a medieval pilgrim. The exposure of light on the paintings will be of very short duration, a few minutes, used only in guided tours and specialist talks. The application relates to the attachment of the projectors to the cathedral fabric
York Minster: south quire aisle conservation. Stonework repair to Quire and Lady Chapel South elevation; Quire South aisle buttresses, pinnacles, parapets, wall and window masonry.
If a court requires that a particular faculty, or perhaps any faculty, will only be granted to a parish when that “Parish has paid the outstanding unpaid parish share”, does that start to make the parish share look like a tax, a tax which does not have the sanction of Parliament?
Alternatively, if a parish proceeds with capital expenditure whilst being in arrears with its parish share for several years, is it effectively requiring other parishes within the deanery/diocese to subsidise its building works?
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