Review of the ecclesiastical court judgments during September 2019

In September we received details of fifteen consistory court judgments. The first eight, on Reordering, extensions & other building works, are summarized below. The remaining seven are in Part II which includes summaries of judgments relating to:

• Reordering, extensions & other building works, (Other building works, including re-roofing and Removal and replacement of pews &c). 
• Exhumation
• Churchyards and burials

Part II, to be posted later this week will also include links to other posts relating to ecclesiastical law

Reordering, extensions & other building works

Reordering and alternative uses

Re St. Michael the Archangel Beccles [2019] ECC SEI 4 A petition was sought for the second phase of reordering of the Grade I church, including: the creation of a servery built on to the north wall at the west end of the church [2]; removal of seven rows of pews at the west end of the church [3]; and removal of two rows of pews at the front of the nave to allow an extension to the existing dais [4].

The petitioners stated: the undercroft was unsuitable for those with mobility problems; the space there is limited; catering is difficult when functions are held on the terrace or in the nave[ and that it restricts the range of catering services that the church could offer. The demand to use the church already exists,but it is hampered by the features mentioned [7]. Additionally, they said that the re-ordering would “create both a flexible and accessible space in respect both of worship and performance arts such as concerts” [8].

The Church Building Council deferred to the Court’s judgment but observed that it did not think the justification was sufficiently robust to justify the extent of the pew removal, particularly if the pews had any special significance. Historic England questioned whether the raised platform was too extensive and detracted from an appreciation of the distinction between the nave and the chancel. They also were concerned at the removal of the Victorian radiators and considered that the Victorian phase of works and internal character of the church would be dramatically altered by the changes [9].

The Victorian Society expressed reservations concerning the works [11], but the Chancellor was satisfied that the petitioners had made an adequate case for the proposed works: ” … I find that the petitioners have proved to me to the necessary degree that the moderate harm that will be caused to the significance of this church as a building of special architectural or historic interest is justified by the need demonstrated” [27]. He further directed that “no alternative seating be placed in the church except on a strictly temporary and occasional basis unless a Faculty for such seating has been sought. Before such application is made, recourse should be had to the current guidance on chairs issued by the CBC” [28]. Although the Chancellor made comments regarding the disposal of the redundant radiators, the faculty was not conditional on these [28]. [Re St. Michael the Archangel Beccles [2019] ECC SEI 4] [Back] [Top]

Re St. Thomas the Martyr Up Holland [2019] ECC Liv 4 The church, which is listed Grade I, dates back to the 14th century, but the current layout is Victorian. The proposals included removal of the screens on either side of the chancel steps and their relocation on the east wall of the church, adjacent to the high altar and slightly behind the riddle posts, as well as some alterations to the choir stalls.

The Chancellor was satisfied that the benefits of the proposals – allowing the congregation to engage more with the Eucharist, due to improved sight lines, and greater flexibility of use for the reordered space – would outweigh what he considered to be a low degree of harm to the church as a building of special architectural or historic interest, and he granted a faculty. [Re St. Thomas the Martyr Up Holland [2019] ECC Liv 4] [Back] [Top]

Re St. Gregory Castlemorton [2019] ECC Wor 2 The first (completed) phases of the reordering of this attractive church was to make it suitable for a wider range of uses, was to install toilet and kitchen facilities in the tower area, with additional storage cupboards and new staircase panelling. This appeared to have met with widespread approval [2]. The next phase – which is the subject of the instant petition – was to create additional space in the nave, so that the wide range of social and cultural activities that are already part of the mission of the Church to the This would involve: removing 17 pews (some from the nave and some from the Lady Chapel); levelling the floor; moving the font from near the south door to the Lady Chapel; improving the layout of the chancel by the removal of some of the pews; removal of the 1944 communion rail; conversion of the Lady Chapel altar to allow the storage of altar linen; and the creation of new cupboard storage space [5] to [12].

Historic England (HE) did not wish to become a party opponent, but maintained its objection to the scheme as currently proposed, in particular with regard to the removal of pews [14] to [16]. HE analysed with some care the various types of pews in the church, but strongly recommended that the parish engage an independent expert to assess their quality [14]. Society for the Protection of Ancient Buildings (SPAB), too, questioned the origin and date of the pews, a view echoed by the Victorian Society and by the Society for the Protection of Ancient Buildings (SPAB), which also queried the movement of the font [18]. The DAC recommended the works, subject to provisos requesting more details. It subsequently commissioned a report produced from its then furniture advisor who considered all of the pews in detail, and recommended that the project be allowed to proceed in its current form [21].

The Chancellor, Dr Charles Mynors, agreed with the DAC that the church was “very full of pews” but observed that “It appears that a large amount of general (but apparently inconclusive) discussion has taken place as to which pews are of particular interest, which could be moved from one part of the church to another, and which could be removed without loss”, [31, 32], and “If any of the pews are to be removed …. it is essential that all of the pews currently in the church be thoroughly assessed, in order to ensure that only those of less merit are removed, with those of greater interest retained” [33].

There did not seem to be any particular need for a new font to the north of the altar in the Lady Chapel – the PCC accepted that there is clearly no liturgical need for two fonts (let alone three, including the one to the south of the chancel step, currently used for flower arrangements !!!) [39]. The Chancellor concluded that he was not satisfied that a good case had been made for the moving of the font from near the south door, nor for removing the pews from the Lady Chapel. However, he granted a faculty for the other items. [Re St. Gregory Castlemorton [2019] ECC Wor 2 ] [Back] [Top]

Re All Saints Worcester [2019] ECC Wor 1 After a period of decline, the Grade II* listed church had been revitalised in recent years, with 300 people attending weekly to worship in an evangelical style. In 2018, the Diocese designated All Saints as a “resourcing church”, to enable it to revitalise existing congregations, and equip and encourage them through training events and ministry teams, and to plant new churches [6].

The Petitioners wished to carry out a major reordering in stages, to create a multi-functional space for the church and the wider community. The first stage of the reordering involved the replacement of the pews with chairs, a servery and the moving of the font from near the main church door. The chair proposed was an Alpha SB2M”, with a chromed metal frame and an upholstered seat and back. Most of the amenity societies consulted objected to the taking out of the pews and replacement with the proposed style of chair [8].

Historic England was concerned as to the almost whole sale removal of the pews, which it considered would have a considerable impact on the significance of the building [23]; it also objected to the replacement seating and the removal of the cast iron radiators [24] to [32]. Similar objections were raised by the Georgina Group [33] to [37]. The Victorian Society expressed “strong objections” to the proposals and became a party opponent [38] to [43]. The CBC supported the scheme generally, including the proposed removal of what it described as “the low significance pine pews”; it too expressed concern as to the proposed temporary replacement chairs [44] to [47].

With regard to alterations to historic churches, the Chancellor states various decisions of consistory courts since then have followed the principles set out in Duffield and Penshurst; they are still good law [66]. Furthermore,

“[67] It is also relevant to note that, in many cases, a proposal will consist of two phases: a negative one, where existing fabric is removed, and a positive one, where something else is inserted in its place. In such a case, it is the whole scheme that must be considered, in order to ascertain its effect and the extent of any harm to the significance of the building (East Riding of Yorkshire Council v Hobson [2009] PTSR 561).

Where existing seating in a church or in part of it is to be removed, and new seating introduced in its place, therefore, it is the overall impact of the whole project on the significance of the whole church that is to be considered, not just the impact of the removal of the pews on the part of the church directly affected”.

With regard to moving the font, the House of Bishops produced a document in 1992 clarifying its understanding of the legal position [71] … but “[t]his did not prevent a number of subsequent proposals for moving fonts reaching the courts. Emphasis has been placed on: the desirability of there being a single font in a church; and the desirability of that font being at a suitable and prominent location, ideally but not necessarily by the main door currently in use”.

“[72] The issue has been considered at length in Wandsworth, Holy Trinity (2012) 15 Ecc LJ 125, in which the chancellor summarized the relevant historical background and examined the principal decisions of the courts relating to proposals to relocate fonts. He concluded (following the decision of this court in Eckington, Holy Trinity (1999) 5 Ecc LJ 489) that the basic rule was that a font should be as near the principal entrance to a church as conveniently may be, but that it may be permissible for it to be relocated elsewhere in exceptional circumstances.”

The Chancellor was satisfied that a case had been made out for the servery and the replacement of the pews with the chosen chairs, and granted a faculty should to authorise all of the works in Stage One with the exception of moving the font, subject conditions [114]. [Re All Saints Worcester [2019] ECC Wor 1] [Back] [Top]

Other building works, including re-roofing

Re St. Margaret of Scotland Southsea [2019] ECC Por 1 The petitioners sought permission to permission for the removal and disposal of a significant number of artefacts from the unlisted 20th century church and the temporary screening of side chapels to facilitate proposed new uses. in recent years the condition and use of the church had declined; the incumbent resigned in 2015; the building was temporarily closed for for health and safety reasons. The congregation dispersed to other churches, but in 2017 a new congregation was formed and worshipped in the church hall. Before long it became apparent that more space was needed and steps were taken under various faculties to revive the church and make it safe for worship.

The current petition sought authority for the removal and disposal of a number of items of furnishing, as a precursor to reordering in a way that would meet the needs of the new congregation: pulpit; font & holy water stoop; walls around chance; tester above high altar; side-chapel statues; high altar; any altars, statues, sanctuary lamps, candle stands, lectern, altar rails, vestments etc not required by the new congregation [10].

The parish considered that the benefits of the proposed changes will include the liturgical freedom and pastoral wellbeing of the new congregation, and their ability to offer ministry and pastoral care to the community. The scheme is understood to have enthusiastic support from the community, concerned that that the building should be remain in use, with a new congregation giving it life [13].

Concerns were raised by the Victorian Society [16-21] and the Twentieth Century Society [22]. However, the DAC has recommended the proposed works for approval subject to the conditions that: the installation of the screens is overseen by the inspecting architect; and all items for removal need to be given suitable consideration over disposal or relocation and final decisions agreed with the Archdeacon [23]. The Chancellor commented

“[25] This petition must be seen in the context of the recent history, which has almost seen the permanent closure of the church, with the loss of an important community and congregational resource. The current development scheme, which includes the proposals now under consideration, offers a real, and possibly the only, opportunity to revive the church building. In broad terms, therefore, I have concluded that the proposed changes are necessary and the impact on the overall appearance of the interior is, subject to the exceptions noted below, outweighed by the benefits of creating a space and environment suitable for the proposed ministry and mission of the church and its new congregation.

The Chancellor agreed to the removal of the majority of items in the petition ,including the high altar and the font, but excluded the removal of the lectern, the Communion rails and the pulpit and the associated memorial plaque. [Re St. Margaret of Scotland Southsea [2019] ECC Por 1] [Back] [Top]

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Removal and replacement of pews &c

Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3 As part of a scheme of reordering in 2011-2012, 30 red-upholstered chairs with black metal frames were introduced into the Lady Chapel of the Grade II* church in 2012 without faculty consent, and in a manner inconsistent with the confirmation as to the specification of the chairs that had been provided to the DAC by the church’s own architect [3]; the chairs do not comply with DAC or Church Buildings Council guidance; and the unanimous view of the DAC and of the amenity societies which have been consulted in relation to the faculty application are that they are not considered to be appropriate to this Grade II* listed building in terms of their design, colour and upholstered nature [4].

The churchwardens subsequently applied for a retrospective faculty to authorise the 30 chairs. The amenity societies consulted (SPAB, HE, Victorian Society) were strongly opposed to the chairs [5]. The DAC did not object to the chairs being approved by the court, subject to the proviso that they might be retained in use for a period of 5 years after the date of the faculty whilst funds were raised for suitable and appropriate replacement chairs. The DAC also noted that the chairs were currently stored in various locations around the church; and it recommended that a plan should be produced for storing the chairs when they were not in use.

The Chancellor was of the opinion that the chairs were “incongruous and aesthetically inappropriate in and to the setting of this medieval Grade II* listed building” [8]. However, he granted a faculty for the chairs, but subject to a condition that within 5 years the petitioners should apply for a further faculty for “suitable and appropriate replacement chairs which respect the interior and significance of this Grade II* listed church”. He also directed that within 3 months after the date of this faculty, a plan is to be produced by the parish to regulate the storage of the chairs in a suitable location or locations (otherwise than in the chapel in the south transept) when they are not in use [10]. [Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3] [Back] [Top]

Re St. Margaret of Antioch Toxteth [2019] ECC Liv 2 The proposal was to remove the pews from the church and replace them with chairs from the Anglican Cathedral in Liverpool. The church is an elaborately-decorated Victorian church listed Grade II*, though from an inspection the Chancellor describes the pews as “not in a particularly good condition, certainly not ergonomically comfortable or efficient, but certainly simple in form”. The church had gone through a period of decline, but was now developing with a mission for outreach, and wished to provide a more flexible space for a number of activities, including the hosting of food banks, messy church, arts projects, plays and concerts. The Chancellor concluded that the removal of the pews would not result in any particular harm to the significance of the building and its special architectural or historic interest, and that there would be substantial benefits to the church. He therefore granted a faculty. [Re St. Margaret of Antioch Toxteth [2019] ECC Liv 2] [Back] [Top]

Re St. Helens Parish Church [2019] ECC Liv 3 The Church of St. Helens is a very large church in the centre of the town, capable of seating 800 people. It was built in the 1920s and is listed Grade II. The petition proposed the permanent removal of 5 pews from the front of the nave and 12 pews from the rear. Authority had previously been given by Archdeacon’s Licence for the removal of the pews on a temporary basis. The reason given for the proposals was to provide more flexible space for church and community use. The Chancellor granted a faculty, being satisfied that the removal of such a relatively small proportion of the pew seating would not cause great harm to the church as a building of special architectural or historic interest. [Re St. Helens Parish Church [2019] ECC Liv 3] [Back] [Top]

Re St. Michael Llanyblodwel [2019] ECC Lic 6 The PCC sought a faculty for the installation of a frameless glass door into the porch opening. The Grade I church has Norman origins “but barely any of the Norman and medieval structure remains; the internal and external structure now derives almost entirely from the mid-Nineteenth Century works undertaken at the expense of the then incumbent, the Rev John Parker, and in accordance with Mr. Parker’s own designs [1]. This included the 1851 of a north porch with an open entrance under a carved archway [2]. The current petition, brought by the Rector and churchwarden with the unanimous support of the Parochial Church Council, seeks a faculty for the installation of a frameless glass door into the porch opening [4].

The Diocesan Advisory Committee did not support the proposal: the door would look too modern; a wooden or metal frame would be preferable. Historic England, the Victorian Society and the Ancient Monuments Society also objected. However, there was no response to the Public Notice [5] to [8].

The Chancellor considered the competing contentions for the new door [9] to [14]. He concluded that a frameless glass door would have an adverse aesthetic effect on the Grade I listed church; he according declined to approve a frameless glass door, but approved a wood-framed or metal-framed glass door of a design acceptable to the Diocesan Advisory Committee. [Re St. Michael Llanyblodwel [2019] ECC Lic 6] [Back] [Top]

Notes on the conventions used for the navigation between cases reviewed in this post are summarized here. The photographs used in these posts are for illustrative purposes and do not relate to the case reviewed.