Review of the ecclesiastical court judgments during July 2019
This first part round-up of the July consistory court judgments includes determinations on:
The second part will review judgments on:
It will also include a summary of recent CDM Tribunal judgment in relation to The Revd Canon Cameron Butland which was reviewed in a separate post.
Part 1 judgments
The judgment Re All Saints Hooton Pagnell is from 2017, but was only received/circulated by the Ecclesiastical Law Association at the beginning of the month; a short summary has been included and also a link to the full 20-page judgment and orders. No new points of law arise, but is notable with regard to the PCC’s and DCC’s unwillingness to engage in the legislative process of the Church of England. Sympathies go to Sheffield diocesan officials involved and to Chancellor Singleton, who commented on the conduct of the petitioners at [18], [22] and [23]. There were also some unsatisfactory procedural elements in the cases of Re St. Michael & All Angels Berwick and Re St. Anne Aigburth.
Reordering, extensions & other building works
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews &c
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Re St. John Waterloo [2019] ECC Swk 3 The Grade II* church of St John is a well-known landmark to the south of Waterloo Bridge, close to Waterloo Station. This is not the first petition seeking a faculty for the re-ordering of the church and in December 2015, permission was sought for a more radical re-ordering scheme. In the judgment handed down on 14 February 2017, the Chancellor decided that the harm that would arise from the proposals was not outweighed by the public benefit that would arise from them [4].
In the light of that judgment, the Petitioners and PCC instructed their architects to draw up a new scheme, intended both to provide the same or similar benefits and also to address the issues raised in the judgment. As a consequence, Historic England and the local planning authority no longer objected; although the Twentieth Society does still had objections, it recognised that the current scheme retains the majority of the important elements of the Thomas Ford interior [5].
The earlier judgment contains: a description of the parish (paragraphs 10 – 14); the church (paragraph 15); and an extended history of the matter, ending with the submission of the earlier petition (paragraphs 17 – 56). Since these matters are essentially unchanged, the Chancellor recommended that anyone who wishes to understand more fully the detailed background should read these sections [8], [Re St. John Waterloo [2017] Swk 1].
As a consequence of its post-war restoration as the church for the Festival of Britain, the building presents a number of challenges on both historic and aesthetic grounds [11], and in terms of the liturgy [12,13]. Commenting on his earlier judgment, Chancellor Petchey said [18]:
“It must always be possible for public benefit to be outweighed by harm in respect of proposals to alter a church but it is generally an unhappy conclusion for a Chancellor to reach because it frustrates considered plans to develop the mission and ministry of the Church in a particular situation where it finds itself”.
The current proposals are described in paragraphs [18, 19], and in his consideration the Chancellor noted [20]:
- the proposals improve the church liturgically [21];
- there will be gain because of the improved focus of the building and because that improvement is achieved in a way that is intrinsically visually good… but there will also be loss because the integrity of Thomas Ford’s work will be compromised 23].
- it is not necessarily easy to identify what is a visual improvement [24], but although [the new proposals] do impact on the Ford scheme, they do not supersede it [26].
With regard to the negative aspects of the proposals, the Chancellor raised the general point that the integrity of the interior will be compromised, a matter mitigated by the fact that it will still be possible to appreciate that interior. However, he would still regard this harm as significant; the more specific element of harm is the removal into storage of Ford’s twin pulpits – the chief concern of the Twentieth Century Society [29]. However, “from a functional point of view, the pulpits were the least successful aspect of Ford’s scheme. They reflected a liturgical fashion which seems to have been out of date even in 1951” [30].
After considering the questions identified in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor took the view that the proposed scheme would have a significant effect on the interior of the church, but was satisfied that the benefits would outweigh any harm. Faculty granted. [Re St. John Waterloo [2019] ECC Swk 3] [Back] [Top]
[The church’s web site links to a photograph of the interior of the church and gives further information about the proposals].
Re St. Michael & All Angels Berwick [2019] ECC Chi 3 The petitioners sought permission for extensive works for the restoration of and improvements to the Grade I listed church. These included: conservation of the Grant/Bell scheme of wall paintings, and works associated with provision of a better environment for their survival; and other improvement works within the church [4]. Not apparent on the Public Notice was: the proposed removal of red and black 19th-century floor tiles [7]; and items from the list of proposed works concern the organ, for which a faculty had already been granted in relation to its removal [8]. These gave rise to a considerable degree of confusion as regards some of the objections to the current petition [9].
There were five objectors, but none were parties opponent [10] and their objections were detailed [11] to [13]. The church contains a scheme of paintings on plaster panels, lining the nave and chancel walls, executed in 1941-42 by Duncan Grant and Quentin and Vanessa Bell. One of the concerns was as to the conservation of the paintings. The Deputy Chancellor was satisfied however that adequate expert advice was being sought about the conservation work.
Another item of contention was the retention of the front pipework of the old organ, which was being replaced by a digital organ. However, the petitioners pointed out that this would provide a sense of continuity with the previous organ arrangements.
Quite “late in the day”, the petitioners the petitioners informed the Deputy Chancellor that they needed this petition to be determined urgently, for the purposes of securing their envisaged grant from the National Lottery Heritage Fund, the deadline of which was 15 April 2019 [15]. The Deputy Chancellor was satisfied with all the proposals for the reasons given in paragraphs [17, 18] and granted a faculty on 12 April 2019. [Re St. Michael & All Angels Berwick [2019] ECC Chi 3] [Back] [Top]
Re St. Anne Aigburth [2019] ECC Liv 1 The Vicar and Churchwardens sought a faculty to authorise a substantial reordering of St Anne’s. This judgment deals with the first phase: replacement of pews with chairs, the levelling/replacement of the floor, the construction of a chancel dais, and the installation of two toilets, one of which will be accessible.
Initial consultation with, and the views of, the Diocesan Advisory Committee, Historic England, the Church Buildings Council and the Victorian Society had been on the understanding that the proposed replacement chair would be an all-wood ‘Theo’ chair. However, when the petition came before the Chancellor, the petitioners had chosen instead a metal-framed, upholstered ‘SB2M’ chair. The Chancellor stated: “the effect of presenting this new material at the stage when a decision is to be made on the faculty petition without affording Historic England or the CBC an opportunity to make representations is that a ‘march is stolen’ on what is likely to be a robust objection” [48] .
The Chancellor approved in principle all the items, but was not prepared to approve the SB2M chair without further consultation taking place with the before-mentioned bodies and a further opportunity for the petitioners to consider an alternative chair or make a stronger case for the SB2M chair. [Re St. Anne Aigburth [2019] ECC Liv 1] [Back] [Top]
Other building works, including re-roofing
Re All Saints Hooton Pagnell [2017] ECC She 1 In 2016 the Archdeacon discovered that a within a roofless cubicle had been installed in the church vestry without faculty authority; the arrangements for drainage had involved excavation into the ancient churchyard, and details of the connection to a drain were unrecorded/unknown [5]. The Archdeacon subsequently learned that a kitchen sink unit and wall-mounted electric water heater had been installed inside a cupboard at the base of the church tower; again it was a poor quality installation in the absence of a faculty [8].
“It was necessary for the Registrar to become active in this matter once it was clear, as it was from May 2016, that the parish were disinclined to act quickly or consensually to remove the unlawful works despite the opinion of the church architect and the advice of the Archdeacon and DAC Secretary” [8].
Consequently, the Chancellor make orders of her own motion; on 1st November 2016 she recoded what had happened and issued directions [9]. After only partial compliance with that order by a letter received on 17th November 2016, she made a further order on 21st November 2016 providing for a hearing at the church on 6th January 2017. On 14 December 2016, a petition for permission to undertake the illegal toilet washbasin and enclosure from the vestry and a heater and basin from the tower was finally received at the Registry [11].
Further to the Chancellor’s motion, a hearing was held at the Church on 6th January 2017 [12], but with regard to the issues raised [13] to [17], “it was sadly obvious that there were a number of serious conflicts of fact .. the key people did not agree about where the truth of this matter lies”. The Chancellor therefore arranged for a three-day hearing to take place that month (May 2017) in order to hear evidence and make findings about what had happened.
However, prior to the hearing, Bilham PCC met and “[a]fter a lengthy discussion it was proposed … that Hooton Pagnell DCC should pay the costs to date and carry out all repair works required to return the church to its former state. This proposal was accepted by the meeting”. The Registrar subsequently received letters confirming this position but that from the churchwarden indicated that the parish did not accept that it should be responsible for all of the legal costs incurred by the Registry [19]. The Chancellor made directions that the faculty to facilitate the works be issued, and that the legal costs incurred by the Registrar be paid by the DCC of Hooton Pagnell Parish [24]. [Re All Saints Hooton Pagnell [2017] ECC She 1] [Back] [Top]
Re St. Mary Battersea [2019] ECC Swk 4 A new lighting scheme had been prepared for the Grade I Georgian church. The existing lighting scheme involves the use of spotlights, and although possibly “state of the art” when installed, the lighting it provides is not satisfactory: some areas are not well lit and some areas suffer from glare; the old fashioned lights burn out comparatively frequently and are not easy to replace [3]. Modern LED lamps are intrinsically more economical and require replacement less frequently.
A new scheme was developed: “most of the proposed scheme was uncontroversial and indeed obviously beneficial” [5]; however, Historic England and the Local Planning Authority were concerned about the installation of recessed spotlights within the nave ceiling in front of the chancel arch and above the Holy Table in the Lady Chapel in the South aisle proved [6].
The petitioners were asked to consider alternative arrangements [9], and of the four options identified, the favoured one involved four groups of five spotlights recessed into ‘rafts’ or slim panels suspended on wires close to the ceiling [10]. This was considered the “least worst option” and although it involves a degree of harm to the building, the Chancellor considered that the harm is not serious and is outweighed by the public benefit of having a generally good and particularly eco-friendly new lighting system in the church [11].
With regard to the lighting of the Lady Chapel, the head height is so low that surface mounted spotlights would be intrusive. In this location it was therefore considered appropriate that the original proposals should be adhered; harm is once again outweighed by public benefit. The Chancellor granted a faculty. [Re St. Mary Battersea [2019] ECC Swk 4] [Back] [Top]
Removal and replacement of pews &c
Re St. Chad Longsdon [2019] ECC Lic 5* The petitioners wished to introduce sixteen upholstered Alpha A1LE chairs together with four dining tables into the north aisle of the church, from which the pews had been removed in 1997. The vicarage had recently been sold, resulting in the loss of a room for church meetings. The tables and chairs would be used for refreshments and fellowship after church services and for meetings of the Parochial Church Council.
Although satisfied that a case was made for tables and chairs, the Chancellor was concerned that the particular chairs chosen would “have a real impact on the appearance and special significance of this grade II* church. They will strike a discordant note and will detract from the overall character of the interior.” He therefore refused to grant a faculty, but invited the petitioners to consider alternative chairs in consultation with the Diocesan Advisory Committee. [Re St Chad, Longsdon [2019] Ecc Lic 5] [Back] [Top]
Re St. Andrew Farnham [2019] ECC Gui 1 The judgment reviews comments on the pre-applicaiton advice of Historic England in relation to an otherwise successful major reordering of the Grade I church [1]. Whilst acknowledging the success of a recent major internal reordering of the church, Historic England was unhappy about proposals to install new audio-visual equipment: screens in the aisles, fixed to the pillars, and replacement loudspeakers. In a letter dated 13 August 2018, Ms Liz Pollard, Assistant Inspector of Historic Buildings and Areas of Historic England expressed her objections in pre-application advice [2]; this was supplemented by the comments of Mr Ptolemy Dean, the architect appointed under the Inspection of Churches Measure 1955. These comments, detailed in [2] to [5], enabled the Chancellor to remodel the Memorandum drafted earlier and to incorporate much of their contents into the provisional faculty he granted.
The Chancellor was satisfied that the petitioners had taken the criticisms of Historic England, and provided a Statement of Significance and a detailed Statement of Need [6] to [9], absent from the Petitioners’ initial submission. The Diocesan Advisory Committee made four recommendations which the Chancellor endorsed, noting “[t]he first three must form conditions which are to attach to the grant. A provisional faculty was granted, subject to conditions that: (1) the screens would have a white or no border, so that they would blend with the white background; (2) the screens would be no wider than the pillars; (3) the Diocesan Advisory Committee should approve the fixings and (4) the loudspeakers should be four steerable beam loudspeakers at high level [Re St. Andrew Farnham [2019] ECC Gui 1] [Back] [Top].
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.