Some further considerations
In our post, Balancing mission, aesthetics and heritage of parish churches – I, we noted that the Church’s consistory courts are frequently required to weigh up the relative merits of proposed building work for repair or modification in terms of their impact on the heritage and aesthetics of the building against its overall mission within the community. This exercise is easier to perform in relation to petitions concerning uncontroversial works to “unremarkable and utilitarian buildings” such as that in Re St Richard Crowborough  Chichester Cons Ct, Mark Hill Ch or the disposal of redundant or dilapidated items as in Re St Mary Magdalene South Bersted  Chichester Cons Ct Mark Hill Ch. By contrast, Chancellor Rupert Bursell’s judgment Re St Mary and St Cuthbert Chester-le-Street  ECC Dur 1 concerns a petition which sought, inter alia, to introduce four 50-inch LCD monitors into the nave of a nationally-important Grade I church which “still remains a place of pilgrimage because of its connections with St Cuthbert”.
The importance of the church of St Mary and Chester-le-Street lies in the architecture of the Grade I building and its historical associations with St Cuthbert. The site on which the present church was built has been used for worship for over 1100 years; elements of the current building are over 950 years old, during which period the body of St Cuthbert was held in Chester-le-Street, 883 AD to 995 AD, and the oldest surviving translation of the Gospels into English was made by Aldred (“the Lindisfarne Gospels”). The church still remains a place of pilgrimage on account of its connections with St Cuthbert .
Chancellor Bursell notes “it is unsurprising that the church is listed Grade I” and comments “the listing’s rather dry description fails to catch the beauty of the church”. However, this is captured in a letter from Historic England (5 February 2016) which draws attention to the church’s sense of timeless composure and its calm visual atmosphere, and in HE’s subsequent description of the church as an “exceptionally important grade I listed building” .
The rector and two churchwardens petitioned for the installation of an LCD TV based multimedia display system:
- To provide four 50-inch LCD monitors fixed to the joints in the pillars of the nave, two monitors on the two eastern most pillars either side of the nave and the other two on the third pair of pillars to the west. In the final iteration of the proposals, these were to be pivoting screens, using bespoke steel mounting plates with different fixing positions on each of the four columns to match different mortar joint levels;
- To provide 24-inch LCD monitors in the choir vestry and a 32-inch “confidence monitor* on a wheeled trolley to face those leading the service;
- To provide a Kramer seamless switcher to allow any VGA, HDMI, DVI or video source to be simply connected to the new system;
- And with all required cables, connectors and splitters.
(A “confidence monitor” is an additional screen, which can be quite small, facing the priest/presenter which mirrors the content that the congregation/audience sees.)
The petitioners’ statement of needs emphasises the urgent requirement within the parish “to reach the marginalised and the unchurched” as a priority and the desire “to be more attractive to younger families”. It also sets out that “visuals” are already in use at all the 10am family services; these family services have the largest attendances of the week. The present projector, computer and screen were put into the church “nearly 10 years ago”, and “at present, we put up a central screen by ropes every Sunday morning and on other occasions which is rather tiresome and time consuming. It seems to be creating slight damage to the rood screen as it rubs against it. Also, with the length of the church and the obstruction of the pillars not everyone can see the screen.”
The Chancellor commented:
“although no doubt tiresome and time consuming, I regard the former to be of very little weight in all the circumstances. As to the slight damage, now that it has been recognised I have no doubt that further damage can be prevented with care and, if necessary, with some judicious and discreet padding” .
Recommending the petition on the 7th December 2015, subject to certain provisos DAC expressed the opinion that the proposed work was unlikely to affect the character of the church as a building of special architectural or historic interest. Furthermore, it did not recommend that the intending applicants should consult Historic England, the local planning authority or the Church Building Council . Nevertheless, the incumbent did consult Historic England about the proposals and they clearly took a far more serious view of the effects of the proposed works upon the character of the church as a building of special architectural or historic interest, and commented (5th February 2016):
“…This sense of timeless composure will be harmed by the proposals. Fixing four TV screens to the medieval pillars will introduce strident modern fittings in a space otherwise visually unencumbered by this type of intrusion. The screens will obscure detailed masonry, unnecessarily draw the eye from the architecture and intrude into the calm visual atmosphere of the church’s interior…” .
The public notice, posted on the 5th February 2016, prompted a number of objection to the proposals, the salient points of which were summarised in paragraph 10 (a) to (h). With regard to funding issues, however, the Chancellor observed:
“. …as long as the PCC has sufficient funds to cover the cost of the proposals and the parish’s finances would not thereby be placed in jeopardy, the court should not in ordinary circumstances refuse a faculty on the grounds of costs: see In re St Peter’s, Littleover (1987) Ecc LJ (3) 31; Re St Mary the Virgin, Ashford (2010) 13 Ecc LJ 244; In re St Mary’s Churchyard, White Waltham (No. 2)  PTSR 1689 at paras 61-64.)”
In the 17 months after the public notice, there were a number communications between the petitioners, DAC, the amenity societies and the objectors; the Chancellor also directed that the views of the Church Buildings Council and the local planning authority should be sought; and there were two public hearings [10 to 25]. The basic arguments set out by the incumbent in support of the proposals are outlined in paragraph 23.
The Chancellor considered the petition against the guidelines set in Re St. Alkmund, Duffield  Fam 158 with the further assistance provided by the case of Re St. John the Baptist Penshurst  Court of Arches (Rochester), in particular, paragraph 22 of the full judgment as quoted in Re St. Peter Shipton Bellinger  Court of Arches at paragraph 39).
With regard to the guidance provided by paragraph 132 of the National Planning Policy Framework (NPPF), referred to by the local planning authority, the Chancellor noted that although this does not directly apply to faculty proceedings, “[it] nevertheless may in appropriate cases provide some guidance to the approach to be taken by consistory courts in cases relating to works to listed churches…” . It states:
“[w]hen considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be…”
“ … [I]t is not so much that a different standard of proof is required in different circumstances varying according to the gravity of the issue, but that the gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged: the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”: see 20 Halsbury’s Laws of England (LexisNexis, 5th ed.) at paragraph 775.
He continued by stating [emphasis added]:
“. …it follows that more cogent evidence is required for petitioners to discharge the burden of proof placed on them to prove their case in a case involving a church listed grade I (such as here) than in a case involving a church listed grade II*… In the present case, of course, what is proposed would (in much the greater part) be reversible but there would nevertheless be a continuing effect on the heritage asset during such time as the screens were to remain in place“.
The church’s Grade I listing “is proof, save in the most exceptional cases and then only upon compelling expert evidence, that the building is of national importance”, Re St. Peter Shipton Bellinger [at 37], and “…on ordinary common law principles the weight given to an objection may be increased by the status and expertise of the body making the objection…This does not mean, of course, that in every case an objection from a body such as the Victorian society will prevail …. But it does mean that a statutory amenity society’s objections should never be simply brushed aside,” .
Having carefully considered all the evidence, the Chancellor unhesitatingly accepted the view of Historic England that the church is an “exceptionally important grade I listed building”, and entirely accepted its view that “the survival at St Mary & St Cuthbert of large quantities of medieval fabric, primarily from the early to mid-thirteenth century, is a principal reason for the church’s listing at Grade I” . He also accepted HE’s England’s assessment which drew attention to “the church’s sense of timeless composure and its calm visual atmosphere”, a view reflected in that of the local planning authority.
Against this background, with regard to the first question raised by Re St Alkmund, Duffield  Fam. 158 [at 87], the Chancellor noted that the DAC was, and remained, of the opinion that the proposed works would not result in any such harm. He observed that it is true that the proposals, if implemented, would (apart from the slight damage to the pillars from the screws) be entirely reversible; he very much doubted that the proposed screens would remain in situ even for 50-100 years and therefore taking the long view they would not harm the significance of the church as a building of special architectural or historic interest. However, he did not accept that this would be the proper approach, and considered that the proper question is the effect of the proposals while the screens remain in position.
For this reason he preferred, and accepted, the views of Historic England, the Church Buildings Council and the local planning authority that the proposals, if implemented, would affect the character of the church as a building of special architectural or historic interest. The answer the first Duffield question was therefore in the affirmative. On the third Duffield question “the physical harm that would be caused by fixing the screens to the cantilever mechanism would be very slight”, but with regard to the presence of the TV screens on the four pillars together with their cantilever mechanism, the Chancellor accepted the views of English Heritage and the local planning authority that the screens on their cantilever mechanisms would cause serious harm to the visual and aesthetic character of the building and thus to its significance as a building of both architectural and historic interest . In contrast, the proposed provision of the LCD monitor in the choir vestry/crèche and a confidence monitor on wheeled trolley would cause no such harm. Likewise the provision of the Kramer seamless switcher. 
With regard to the fourth question: “How clear and convincing is the justification for carrying out the proposals?”, “[u]nfortunately, it is here that the petitioners seriously undermined their own position” through their inability to produce evidence acceptable to the court on the benefits of this aspect of the proposal . The burden of proving the petitioners case rests throughout upon them and not upon the objectors to disprove it; it is therefore for the petitioners to produce evidence in support of their claim.
Whilst accepting the firm conviction of both the petitioners and the PCC that there would be a positive mission impact of the proposal, “it cannot amount to actual evidence in a court of law. It follows that there is no evidence before [the Chancellor] to show that the introduction of TV screens would be likely to increase the church’s mission…the petitioners are therefore left with their arguments in relation to the inadequacies of the present screen and the need to rectify that position”… [34-35].
The Chancellor therefore refused the grant of a faculty for this petition (as amended) in so far as the provision of TV screens on the four pillars is concerned; however, a faculty may issue in relation to the choir vestry monitor, the confidence monitor and the Kramer seamless switcher together with any related wiring and cabling” .
Whilst Re St Mary and St Cuthbert Chester-le-Street did not “bubble over with poetical emotion”, like WS Gilbert’s Lord Chancellor in Iolanthe, Chancellor Bursell applied “the prosaic rules of evidence” to his assessment of the expected missional benefits and increased congregations. Other prospective petitioners would do well to re-read his reasoning relating to the justification of proposed works to their churches, and only put forward arguments that would be acceptable to the court. In this respect; he noted [emphasis added]:
“. …It would therefore have been possible for the petitioners to produce evidence in relation to the mission effects of such screens in other churches; if there were such evidence, it would suggest that they would have a similar effect in Chester-le-Street”.
For churches with a long history of structural and other changes, there is a tendency to regard proposed change as part of their organic development. In St Mary and St Cuthbert the Chancellor rejected the argument that taking the long view, the proposed works would not harm the significance of the church and focussed on “the effect of the proposals while the screens remain in position“, (in view of subsequent arguments, this presumably referred to when they were in use and when folded away), .
In view of the significant number of visitors to the church on account of its national importance, it was necessary to consider the proposed large screens from the point of view of two different groups of people with quite different perceptions of the church; the benefits to the congregation during their use during services, and their negative effects for visitors as a detraction from the architecture when folded away . With regard to the latter, the Church Buildings observed:
“Visitors to a church do not experience it solely from the point of entry; it is common practice to walk from west to east and then return via the side aisles. This is particularly likely at Chester-le-Street where many visitors will want to view the medieval effigies that line the walls of the north aisle – and the screens would be in full view of visitors standing in the aisles”.
Finally, the case re-emphasizes the importance of the designation of (any) church as Grade I, which indicates that it is a building of national importance, (“save in the most exceptional cases and then only upon compelling expert evidence”); and also highlights the regard to be paid to “the status and expertise” of the national amenity societies and other bodies such as Historic England, the Church Buildings Council and the local planning authority.