Victorian Society announce application of leave to appeal
Following a two-day consistory court hearing in October, on 18 December 2017 the Chancellor of the Diocese of Bath and Wells granted permission for the permanent removal of the pews from the nave of Bath Abbey and their replacement with chairs in the main body of the church once the historic floor has been repaired, Re: The Church of Saint Peter and Saint Paul, Bath (Bath Abbey)  ECC B&Wl. In its Press Release of 10 January, the Victorian Society announced that it had applied for leave to appeal the judgment.
Replacement of the pews in Bath Abbey is a major component of its Footprint Project, a £19.3 million programme of capital works and interpretation which will provide innovative and sustainable solutions to the community’s needs. The pews were designed by the renowned architect Sir George Gilbert Scott and are an almost complete set, unusual for churches of this size.
Re Bath Abbey  ECC B&Wl
The Petitioners sought to remove the nave pews in their entirety and replace with chairs. The reordering within the Footprint Project is associated with the pressing need to stabilise, repair and refurbish the floor, Scott’s underfloor works having subsided and developed dangerous voids. The failure of the underfloor areas is evidenced by irregularities in the surface. A petition comprising the majority of the works was lodged on May 21st 2015, and under r1.4 FJR, Chancellor Briden ordered that a faculty (dated November 30th 2015) should issue for the generality of the works, with directions being given for the determination of contentious issues relating to potentially controversial aspects of the proposals. Many of these issues, including the complex methodology for stabilising the floor, was resolved by agreement [6-7].
Paragraph 5(j) of this faculty stated [emphasis added] :
“Provision of new furniture: Choir stalls, altar furniture and nave chairs (including replacement of pews with chairs) Work shall not commence until the petitioners have applied for and obtained a Further Order under this faculty. Special notice of the application shall be given to Historic England, The Victorian Society, the SPAB and the local planning authority…The CBC shall have leave to give evidence in connection therewith. Pews or pew platforms may be removed to a place of safe keeping in the course of the project only pursuant to a specific direction of the Court .
Public notice elicited no objection to this or any other feature of the works, and the DAC recommended in principle the replacement of the nave pews with chairs subject to its consideration on design &c .
The petition was opposed by the Victorian Society, which argued that the Abbey’s plans for the permanent removal the nave pews, a major element of Sir George Gilbert Scott’s reordering of the church in the mid-nineteenth century, were unnecessary and would harm the significance of this listed building . In a probable allusion to the decision of Chancellor Collier QC in re Holy Trinity Hull  ECC Yor 1 (in which a substantial reordering with the loss of pews was permitted on the basis of financial rather than liturgical need), the Society commented [10(3)] .
“Bath Abbey is not a struggling parish church, it is a major church in the heart of a popular tourist destination. It receives a steady stream of visitors and donations. The Abbey’s annual accounts show that giving per person is rising and the church has a surplus of income. Given the Abbey’s strong financial position, there is a weak case for the proposed re-ordering”.
Although they did not become parties opponent, both Historic England and the Society for the Protection of Ancient Buildings indicated their support for the Victorian Society .
Whilst counsel were agreed that the correct approach is to adopt the guidelines given by the Court of Arches in re St. Alkmund. Duffield  Fam 158 at 199G, Mr. Cain Ormondroyd for the Petitioners held:
“. …the first “Duffield” question called for a balance to be made between harm and benefit to the special architectural and historic interest of the listed building. The effect of such a heritage balance might be to leave only a residue of harm, to be justified under questions 3, 4 and 5, thus reducing the burden of proof resting on the Petitioners.
However, the Chancellor commented:
“17. Mr. Blackett-Ord [for the Victorian Society] resisted this submission. He was correct to do so. At least in the case of an important Grade I church, it is preferable to carry out the balancing exercise under questions 3, 4 and 5, under which any heritage matters offsetting the harm may form part of the cumulative justification alleged on behalf of the proposals.”
Aspects of the evidence given by the witnesses were considered, paragraphs 18 to 35. Of relevance to this and future high-profile reordering cases (and to an appeal, if leave is granted) was the Chancellor’s rejection of the results of the Victorian Society’s on-line petition, for although admissible, little evidential weight could be attached to it: many respondees had no proper (legal) interest in the proceedings; and the invitation to respond was couched in terms which did not engender an objective response .
The Petitioners’ justification for the proposals was considered in paras. 26 to 36, the proposed chairs in paras. 27 to 41, and the important evaluation of the pews, in paras. 42 to 53. After applying the guidelines in Re St Alkmund, Duffield  Fam 158, as further considered in Re St John the Baptist Penshurst  Court of Arches (Rochester), Chancellor Timothy Briden concluded:
“. In my judgment the balance falls firmly in favour of granting the order sought by the Petitioners, even after the listing of Bath Abbey and the strong presumption against change are properly brought into account. Bath Abbey is in many respects an exceptional building. Even if, contrary to my findings, the disposal of the nave pews were to be viewed as causing serious harm, the exceptional set of circumstances relied on by the Petitioners (including a significant element of heritage benefit) would have satisfied the “Duffield” criteria and justified the proposed change.
“. A Further Order under the faculty of November 30th 2015 will pass the seal for the removal of the nave pews and their replacement by chairs of the ‘Theo’ design…
“. The Further Order will be subject to the conditions appended as a schedule to this judgment…”
Similar cases considered during 2017 included Re Holy Trinity Hull  ECC Yor 1 in which, as a party opponent, the Victorian Society objected unsuccessfully to the proposed removal from the nave of “one of the most magnificent and extensive suites of Victorian church seating in the country”. However, it was more successful in Re St Botolph Longthorpe  (final Order t.b.a.) following a protracted legal battle between the parish and the Victorian Society, much of the Victorian interiors of the chancel are to be retained.
Following the Victorian Society’s Press Release, a Bath Abbey spokesperson is reported to have s said the church would wait to see if an appeal is allowed before making any official comment.