Review of the ecclesiastical court judgments during May 2019
Judgments relating to trees in a churchyard are relatively infrequent, and Re St. Mary Mapledurwell includes advice to churchwardens and others on the legal issues involved. The case Re St. Philip & St. Jacob Bristol illustrates the value to petitioners of checking the assertions of objectors. In addition, May’s consistory court judgments included:
Re Christchurch Heeley  ECC She 1 A scheme of extensive modernisation and reordering was proposed to provide a church building which is more suitable for Christ Church’s present-day mission . The principal element of the scheme is the removal of the pine pews and their platforms in order to allow the space in the nave to be used for a multiplicity of purposes, including different styles of worship .
The Diocesan Advisory Committee recommended the proposals for approval by the Court  and the Church Buildings Council commented that “the proposals appear to be an improvement to the current situation and will not result in harm to the historic fabric…the Council will defer this case to the DAC” . The local planning authority was content that the faculty process would provide the necessary consultations and protection of the building, and further planning permission was not required . However, the Victorian Society objected to the removal of the historic bench seating and their replacement with upholstered chairs, and to the covering of the floor. Whilst welcoming the replacement of the fibreglass windows with leaded, glazed windows and the removal of the gallery, the application was said to be “too broad in its scope and needlessly destructive in the interventions it proposes” .
Applying Re St. Alkmund, Duffield  Fam 158, the Deputy Chancellor commented:
“. …In respect of the majority of the proposed works in this petition, I have no hesitation in answering that question in the negative. Indeed, it is clear that the removal of the balcony and the replacement of the fibreglass windows would in all probability enhance the significance of Christ Church as a building of special architectural and historic interest.
“The removal of the pews is of a different order. In my judgment the pews contribute, along with the arches, columns and roof timbers to the significance of Christ Church’s historic and architectural interest as a nineteenth century church building. Their removal would result in some harm to that significance in that the interior of building would unquestionably have a very different appearance without them”.
However, the Deputy Chancellor granted a faculty, being satisfied that the petitioners had made a good case for the proposals and that the resulting public benefit would greatly outweigh any harm caused to the significance of the church as a whole. [Re Christchurch Heeley  ECC She 1] [Back] [Top]
Re St. Peter & St. Paul Grundisburgh  ECC SEI 3 The petitioners sought a faculty for certain construction, demolition and associated works to the Grade I church. These included a small extension to the church to accommodate toilets and a plant room and associated works . The proposed works were the subject of advice from the Diocesan Advisory Council (“DAC”), Historic England (“HE”), the local planning authority and The Society for the Protection of Ancient Buildings (“SPAB”).
SPAB had no adverse comments on the proposals; HE was supportive of the reconsideration that took place of some earlier ideas and also of the proposed north porch design. However, the DAC advised the Chancellor that it did not recommend these works since, in its opinion, “the elevations of the proposed extension are not in proportion to the mass and scale of the church.” As such, it considered that the works would be likely to affect the character of the church as a building of special architectural or historic interest and the archaeological remains existing within the church or its curtilage . After reviewing the opposing views of the DAC and the petitioners the Chancellor said:
“[12-13]. As there are no objectors to the scheme, although the DAC advises me not to grant the Faculty, I am able either to decide the case on the papers or to have a full hearing in open court … I am entirely satisfied here that I may properly judge this petition on the papers. The issues are clearly set out and I understand what the opposing contentions are.
. … although I have had some reservation, I am just persuaded that I should answer the first question in Duffield by saying that if the elevations of the proposed extension are not in proportion to the mass and scale of the church, this could cause harm to its significance as a building of special architectural or historical interest, even if the contention is that the extension is not large enough as opposed to it being some towering monstrosity blocking light and views, where the harm would be more readily appreciable.
With regard to the seriousness of the harm, he said:
“. … Although I have the utmost respect for the views of the DAC in this Diocese and am myself witness to the enormous expertise, help and effort they bring to this process, I regret that on this occasion I am wholly unpersuaded that the harm, if harm there be, would be anything but of a low order.”
Noting that “No-one is contending that the need does not exist for what will be provided if these proposals are permitted. The argument is over the size and scope of the extension”, the Chancellor concluded by saying he had no hesitation that a Faculty should pass the seal in the terms requested by the petitioners. Such harm, if any, that would be caused by these proposals is greatly outweighed by their benefits – a clear and convincing case is made out for them . [Re St. Peter & St. Paul Grundisburgh  ECC SEI 3] [Back] [Top]
Re St. Philip & St. Jacob Bristol  ECC Bri 1 The incumbent and churchwardens wished to grant a licence to a company to use part of the churchyard for temporary site offices and car parking, and to allow the fitting of electronically-controlled access gates. They also wished to dispose of some items of church furniture, which had been in storage for 10 years. The Victorian Society did not support the disposal of the lectern, a chair and some prayer desks. With regard to the lectern, it stated:
“. …The lectern bears a shield plaque bearing an inscription, indicating that it was commissioned and installed – and has served ever since – as a memorial to “RICHARD CORNALL FIRST VICAR OF THIS PARISH 1862-1908”. To dispose of it, and with it the historic interest and information it conveys, as well as its aesthetic value, seems rather heartless, not to mention seemingly unnecessary”.
However, the petitioners commented:
“. … our history books inform us that Richard Cornall was never a vicar in this church and in fact St Philip and St Jacob had 3 different vicars in this time frame. … Richard Cornall was the vicar of Emmanuel (The Unity), a church that was located (now demolished) in The Dings…therefore, it is thought that this furniture came from Emmanuel when it closed and the two parishes merged.
The same Richard Cornall is buried at Arnos Vale cemetery (1 mile away) and a similar inscription can be read on his gravestone. I have contacted Arnos Vale (which is now a museum and event space) to enquire as to whether they may be interested in acquiring the Lectern either for their museum or for use in their chapel. This would be our first and preferred port of call”.
Historic England had reservations about the proposed new gates. The Society for the Protection of Ancient Buildings had reservations about the gates and also archaeological concerns. In relation to the licence, Chancellor Gau was content that, with an archaeological watching brief at the relevant times, the petition may be granted for the temporary installation of the cabins as proposed. A condition is that the area is returned to its current appearance after the works have concluded .
Having seen photographs of the gates that were currently in place, he noted (without being rude) they were entirely undistinguished and their replacement will not affect the appearance of the churchyard adversely. A condition of their replacement is that the existing stones and copings should be reused and the mortar should be replaced like for like .
Re St. Mary Mapledurwell  ECC Win 1 Five yew trees, a conifer and a holly had been felled without the authority of a faculty. The churchwarden had applied for a faculty using the Online Faculty System, and had taken the approval of the Diocesan Advisory Committee to mean that a faculty would be granted, despite the inclusion in the DAC’s notification of advice of the statement:
“This notification constitutes advice only and does not give you permission to carry out the works or other proposals to which it relates. A faculty must be obtained from the Consistory Court before the works or proposals may lawfully be carried out”.
By the time the Chancellor visited the churchyard to inspect the trees, the trees had been removed. Describing the action as “simply … unacceptable” , the Chancellor stated:
“. Churchwardens need to understand the requirement for faculty permission, which must be observed with particularly care if irreversible changes are to be made. Otherwise, the court is effectively deprived of jurisdiction to consider whether to permit the changes or not. I will ask for this short judgment to be circulated to parishes so that other churchwardens can learn from the experience here. If similar events occur in future I would be minded to call a hearing for them to explain their actions and also to consider making an appropriate costs order.”
With regard to churchyard trees,
. … it should not be assumed that just because any relevant consents have been obtained from the local authority (as they were in this case) that a faculty will automatically be granted. Where trees in a conservation area are concerned, the local authority will simply consider whether the trees provide sufficient amenity value to warrant the making of a tree preservation order.
. This court, on the other hand, will look at matters in a broader perspective which acknowledges that trees are living parts of God’s good creation, which have value for that reason regardless of their utility to human beings. This is particularly so if, as appears to have been the case here, the trees provide a habitat for other species. More specifically, trees may form an important part of the character and appearance of the “churchyard”.
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. The last meeting of the CFCE was on Thursday 30 May 2019 when it considered the applications here. The decisions made by the commission at the meeting on 31 January and 28 March are here and here. The next meeting is on18th July.
Notes on the conventions used in these posts are summarized here.