Ecclesiastical court judgments – December (I)

Review of the ecclesiastical court judgments during December 2019

This post reviews the first twelve of the twenty-three consistory court judgments that were circulated in December; these in this  Part I concern Reordering, extensions & other building works.

Part II will cover the remaining eleven judgments relating to ExhumationChurchyards and burials; and Bells. It will also include  links to other posts relating to ecclesiastical law, and information from the Oxford diocese which gives some background to the operation of its DAC. Other future posts will consider some of these cases in more detail: Re All Saints Preston and Re The Holy Saviour Bitterne and considerations on the introduction of “pod” facilities into Grade I and Grade II churches, respectively; and on the disregard of the faculty jurisdiction in Re St. Oswald Filey .

Looking forward to next year, from 1 April 2020 The Faculty Jurisdiction (Amendment) Rules 2019 come into force and introduce a number of modifications, including the addition of extra items into Lists A and B such as the inclusion of Wi-Fi routers and equipment for card payment systems, and the extension of the Archdeacon’s jurisdiction for temporary minor re-ordering under Rule 8 from 15 months to 18 months. An overview of these changes was posted in Faculty Jurisdiction – further amendments, April 2020, and tardy engagement of the PCC with the court in Re All Saints Preston provides an example of the need for some of the Part 4 changes. 


Reordering, extensions & other building works

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Demolition

Re St. Saviour Upper Sunbury [2019] ECC Lon 1 The incumbent and Churchwardens sought a Faculty for the demolition of some unsightly temporary structures at the east end of the church, which is unlisted and not in a conservation area. These were to be replaced with permanent brick built structures to accommodate a commercial kitchen, a crèche, lavatories and a food bank; also landscaping of the churchyard. The works were unanimously supported by the PCC and recommended by the DAC without proviso. The Victorian Society did not wish to comment and planning permission was granted by the London Borough of Spelthorne [1]. There were three letters of objection [3], but because of the failure to serve the Particulars of Objection on the Petitioners and signing a declaration of truth that they had, the Chancellor was not prepared to admit the objectors as Parties Opponent, but took into account their views and those contained in the identical letters of objection [5].

Their objections concerned the parking on the highway, which are not issues for the Consistory Court, other of course than the pastoral context, and would have been addressed by the Borough of Spelthorne [6]. The Chancellor granted a faculty. [Re St. Saviour Upper Sunbury [2019] ECC Lon 1] [Back] [Top]

Substantial reordering

Re The Holy Saviour Bitterne [2019] ECC Win 3 Extensive reordering was proposed for the Grade II Church [2] including: construction of a double height extension and first floor in the church room, together with a new entrance to the west; insertion of a mezzanine floor at the rear of the church, containing two ‘pod’ rooms, storage space, and linking through to the new first floor in the church room; construction of a curving timber framed glazed screen separating the mezzanine and area under from the main body of the church; removal of most of the existing furniture,1 including the pews, and the introduction of chairs; laying of a new wooden floor in the main ‘worship space’; relocation of plaques showing the 10 commandments, Lord’s prayer and creed on the west end wall; relocation of the font into the north porch; introduction of new glazed doors; provision of new heating, lighting and audio-visual equipment; widening and resurfacing of the entrance path to the north, including the provision of lighting.

There were four parties opponent and the Victorian Society submitted a written objection. The DAC recommended approval subject to conditions requiring the submission and approval of detailed designs; planning permission had been granted for the extension to the church room by Southampton City Council [3]. The Chancellor considered the six procedural objections [5]; he did not think that any of these complaints has merit, and “some [were] trivial in the extreme” [6].

He then considered the Duffield questions [8] to [15] and considered that overall there was a minor benefit as far as the exterior is concerned, where the majority of the architectural and historic interest is to be found, and a degree of harm to the interior although this would not reach the threshold of “serious” harm referred to in Duffield [16].

He found that the proposals for external changes, including the new glass doors, were easily justified by the Petitioners [21] but in respect of the internal elements, the balancing exercise was more difficult, but considered that the justification almost outweighed the harm (emphasis in original) [22]. This was further considered [23, 24] and also matters relating to buried remains [25] to [34] on which he commented:

“[37]. Given the slight degree to which the remains will be moved, I am not convinced that the permanence of those burials can realistically be said to have been disturbed – any more than it is by the re-use of an area of a churchyard for burials which has already been used in that way once before. However, to the extent that the presumption of permanence is engaged and has to be displaced I am also satisfied that sufficiently exceptional circumstances exist in this case to do so.

The extension to the church room is small and fully justified by threefold justification identified at paragraph 17 above. Although some of those aims could be met by refurbishment of the church hall … I am therefore content to permit any disturbance to human remains required to carry out the proposals.

A faculty was granted, subject to detailed conditions [36] and [37 (a) to (i)], which included that the stone floor should not be covered with wooden flooring, and the poppy-headed stalls should be retained. [Re The Holy Saviour Bitterne [2019] ECC Win 3] [Back] [Top]

Re All Saints Preston [2019] ECC Yor 10 The petitioners wished to construct a timber-framed, self-contained chapel, in the north aisle of the church, which could be heated economically, the replacement of the failed Victorian heating system being too costly. The Chancellor granted a faculty, being satisfied that the benefits would outweigh the harm to the special architectural and historic interest of the Grade I listed church. Also, the structure would not alter the fabric into which it was inserted and could be easily removed in the future. Of relevance to the changes to the Faculty Jurisdiction Rules, supra, he observed:

“[26]. The final decision on any such faculty will be made the chancellor. If those bodies have not been consulted then everything will have to come to a halt, as it did here, whilst that consultation takes place. Even though I rather suspected that when the CBC visited it would be persuaded that this scheme had merit and would overcome the Duffield hurdles, it was not possible for me to second guess that even by issuing a faculty conditional upon that advice being positive.
[27]. There will of course be cases where the proposal is more controversial and those who must be consulted will have greater concerns about the degree of harm and whether it might be mitigated in other less harmful ways than the proposal intends. This may in turn lead to an agreement and changed designs involving further expense, or it may lead to a contested case and eventual rejection of the proposal. In all cases it will lead to delay and usually additional expense, and in some cases it will result in rejection and the need to start all over again.
[28]. I hope that these rules and practices if not already there will quickly become embedded in the thinking of all those who are in any way concerned with proposals to carry out any substantial alteration to Grade I or II* listed churches.

[Re All Saints Preston [2019] ECC Yor 10] [Post][Back] [Top]

Other building works, including re-roofing

Re St. Bartholomew Aldbrough [2019] ECC Yor 7 The Petitioners sought permission to: reposition the font and remove it from its plinth; and remove eight pews from the north aisle to create a usable community space. The plinth was not original to the font and was regarded as a trip hazard. The Grade II* church was the only community facility in the village. The Chancellor was satisfied that the removal of the plinth and the moving of the font would have no appreciable impact on the historic character or the historic interest of either the font or the church and that in those circumstances there is no balancing exercise to carry out [17].

The Chancellor regarded the pine pews as having no intrinsic significance in themselves [18] and commented:

“[19]. On the face of it that might seem to be something that would have a significant visual impact. A church that was fully pewed will inevitably appear different from one where a whole aisle of pews has been removed. However my focus must be on loss to the historic character or interest of the church. I am quite satisfied that there will be none”.

He was satisfied that any visual loss was more than outweighed by the needs the parish has identified for space that can be used flexibly for activities, whether those of “messy church” or other village social activities [20]. There had been no objections following the giving of Public Notice, and he remained satisfied that the petitioners had made out their case for these. Faculty granted. [Re St. Bartholomew Aldbrough {2019] ECC Yor 7] [Back] [Top]

Re St. Mary Liss [2019] ECC Por 2 The petitioners proposed a reordering of the chancel, to include extending the chancel floor level a short distance into the nave and to provide new altar rails [2]. The principal issue of contention relates to the proposal to remove the pulpit and the iron railings and alabaster-faced walls which currently form an integral part of the entrance to the chancel [3]. The church dates from 1892 and was designed by Sir Arthur Blomfield (1829-1899). It is listed Grade II. The pulpit, walls and railings are among the few remaining original features of Blomfield’s design [4]. The needs identified by the parish are described in paragraphs [7] to [9].

The Twentieth Century Society did not oppose the proposed works [11] but the Victorian Society raised serious concerns about the proposed removal of the pulpit, walls and railings and made alternative proposals which might enable these features and the original stalls and pews to be retained [12] to [16]. In its notification of advice, the DAC recommended approval of the plans presented by the parish, subject to the creation of a full photographic record of the existing chancel area and re-consideration of the proposed new liturgical furniture for the chancel [17].

The Chancellor considered the proposals in the light of the decision of the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158 [20]. He concluded:

“[29]. … the removal of the features concerned would cause moderate harm to the significance of the building as a place of historical interest, but that that harm is outweighed by the clear public benefits of providing a more open, unimpeded and flexible space to meet the worship, mission and community needs identified by the parish. The alternatives proposed by the Victorian Society, including a trial period in which the main features are retained, would in my judgment represent an unsatisfactory compromise which would inhibit the parish’s ability to meet its needs.”

The Chancellor granted a faculty subject to the conditions that: that a full photographic record is made of the chancel area; and the design of chancel liturgical furniture is reconsidered and revised designs submitted to the DAC for further consultation. The final design is to be submitted to the Chancellor for approval. [Re St. Mary Liss [2019] ECC Por 2] [Back] [Top]

Re St. Mary the Virgin Headley [2019] ECC Gui 3 The petitioners sought a faculty for an extension to the church to provide a Church Room. Despite their earlier objections in 2016, Historic England and the Victorian Society now indicated that they had no objections to the current proposal. Faculty granted. [Re St. Mary the Virgin Headley [2019] ECC Gui 3] [Back] [Top]

Re St. Margaret Hornby [2019] ECC Bla 5* The petitioners wished to replace stolen roof lead and the remaining lead covering with a Glass Reinforced Polyester, (GRP, a.k.a. fibreglass) product. The Chancellor was supplied with “a good deal of supporting material by the petitioners”, from a number of disparate sources, [5, 6, and commented [emphasis in original]: “this has been helpful, but I am aware of the danger of being diverted from the detail of this application in relation to this church, and have tried to concentrate on that”.

In August, the vicar had applied for emergency or interim relief in respect of the use of GRP on roof above the north aisle, and the Chancellor indicated that he was prepared to grant this request for a period of 5 years, on the basis it had the approval of the relevant amenity bodies for that limited time. This permission was subject to a number of conditions, what was to be done by the parish as that period drew to a close [7]. The Diocesan Advisory Committee, Historic England, the Society for the Protection of Ancient Buildings and the Church Buildings Council objected to GRP being used to replace the whole of the lead from the roof of the Grade I listed church.

“[28]. In summary, [the amenity bodies] had a concerted objection (for largely similar reasons) to the use of the proposed material, considered that it damaged an important feature of the historic building, arid further considered the failure to produce evidence from the church s architect or detailed drawings an important failure, They were firm and strong in their opposition to the proposal.”

The Chancellot commented “the real issue in this case is not whether the petitioners have persuaded me that a new roof covering is needed, which they have, but whether the GRP material should be permitted, rather than Terne Coated Stainless Steel (TCSS) [32]. The weakness of the petitioners’ case was summarized as:

“[39]. …Although it is not stated expressly; there is a strong underlying sense in this case, that the petitioners have been so impressed by their perception and understanding of the GRP material, they have set their hearts on it, and been unwilling to weigh contrary views, particularly those based on heritage considerations, as advanced by those with special expertise in the field, gained over many years, and in respect of many other historic churches. There is a real sense, albeit unexpressed openly, of this being their church, they will be paying for the repairs, and so they should be allowed their preference as to how it should all be done. No countervailing arguments, even on technical matters, are accepted by them.
[40]. Further, as the petitioners trust the contractors to apply the material properly, they see no need to consult their architect at all, certainly not to seek any technical advice from him or her, or to engage the architect in a supervisory role for the work, which they judge unnecessary and something which will simply cause extra cost. They do not acknowledge that the architect brings to the situation professional expertise and independence of judgement, coupled with special knowledge of this building, as well as general insight into the possibility of the roof, which has been subject to failure over a prolonged period, needing or being improved by changes to its construction while the opportunity presents itself. The petitioners have failed to acknowledge the value the architect could bring, which is adverted to in the Guidance Note and the amenity bodies’ letters of objection”.

The Chancellor took the view that the petitioners had failed to produce a clear, logical and convincing cased for the proposed works and he refused to grant a faculty. [Re St. Margaret Hornby [2019] ECC Bla 5] [Back] [Top]

Re St. Peter & St. Paul Muchelney [2019] ECC B&W 2 Since 2014, the provision of lavatory facilities had been under active consideration by the Parochial Church Council of this Grade I church, such provision being lacking within the curtilage of the church. Unfortunately the initial proposal, to the use the vestry for the purpose, proved to be impracticable because the entrance did not meet the requirements of disabled users [1]. There was no suitable place within the church to construct a DDA compliant toilet, and it was therefore proposed to construct a free-standing disabled toilet adjacent to the east side of the north porch of the church, with associated water, drainage and electrical connections. This option had the unanimous support of the Parochial Church Council, and was recommended by the
Diocesan Advisory Committee in its written advice. However, there were letters of objection from five parishioners, the main objection related to the location of the proposed structure.

Although the petition was formally unopposed, the proposed works were controversial: the advice of the statutory consultees was ambivalent, the Church Buildings Council supporting the Petitioner’s choice of position and Historic England preferring a site near to the tower. The South Somerset District Council’s conservation officer expressed a preference for the side of the North porch but acknowledged that a case could be made for both locations and did not contest Historic England’s advice.

In response to one of the four letters of objection that the level of church attendance was insufficient to justify the provision sought, Chancellor Briden commented:

“It is entirely appropriate…that parishes aspire to meet that expectation irrespective of the number of persons for which allowance is made. Ad hoc arrangements at adjacent premises…are insufficient; they do not meet the needs of the disabled or the very young while easy access during services is not always practicable”.

The Chancellor was satisfied that the provision of a disabled toilet was appropriate and notwithstanding the disadvantages identified by the Objectors and Historic England, considered that the location to the East of the North porch was the least problematic within this difficult site. Faculty Granted. [Re St. Peter & St. Paul Muchelney [2019] ECC B&W 2] [Back] [Top]

Re St. Barbara Ashton-under-Hill [2019] ECC Wor 3 There was a proposal to install a toilet and kitchen facilities at the western end of the church, with associated water supply and drainage. Some further pew removal was also proposed. Historic England did not support the kitchen proposals. The proposed insertion of an extractor fan into a glass panel of the door into the tower concerned the Diocesan Advisory Committee and the Local Planning Authority. The Chancellor granted a faculty for the new toilet and associated water and drainage (to be treated as Phase 1), and considered that the parish should reconsider the remaining items (Phase 2). [Re St. Barbara Ashton-under-Hill [2019] ECC Wor 3] [Back] [Top]

Re St. Paul Quarndon [2019] ECC Der 8 The petitioners wished to replace the existing cast-iron sectional rainwater guttering of the church with continuous extruded black anodised aluminium, in order to prevent further water ingress to the church. The Society for the Protection of Ancient Building did not approve the use of aluminium. However, the Chancellor granted a faculty. [Re St. Paul Quarndon [2019] ECC Der 8] [Back] [Top]

Re St. Mary Bridlington [2019] ECC Yor 9 The rector and churchwardens wished to remove to the diocesan furnishing store or to dispose of by sale the ebonised wooden altar cross (date of installation unknown) on the dossal shelf of the reredos, as the cross partly obscured the Agnus Dei design of the reredos by George Gilbert Scott. Letters of objection were received from several parishioners. The Chancellor was satisfied that the petitioners had made out a case for their proposal, and he accordingly granted a faculty. [Re St. Mary Bridlington [2019] ECC Yor 9] [Back] [Top]

Removal and replacement of pews &c

See also Re St. Bartholomew Aldbrough, supra.

Re St. John the Baptist Bilborough [2019] ECC S&N 2 The petitioners proposed the reordering of the unlisted church, built in the 1950s, including the removal of the black and white composite tiles and laying of carpet; replacement of the pews with chairs; and removal of two prayer desks. At a site visit the Chancellor saw that the floor tiles had already been removed and replaced with carpet, the pews had been removed, and there was a mixture of upholstered chairs in poor condition. Notwithstanding the unlawfulness of the works being carried our without prior lawful authority, the Chancellor was satisfied that the church would be enhanced by the proposed changes. He granted a faculty for all the works (except for the removal of one of the prayer desks), providing for the chairs already in the church to be replaced with 110 Vesta stacking chairs, with chrome frames and upholstery in a pewter colour. [Re St. John the Baptist Bilborough [2019] ECC S&N 2] [Back] [Top]


Note: On 15 January 2020 at 18:11, the link to Re St. Mary Liss [2019] ECC Por 2 was replaced by one to a later version. 

Cite this article as: David Pocklington, "Ecclesiastical court judgments – December (I)" in Law & Religion UK, 30 December 2019, https://lawandreligionuk.com/2019/12/30/ecclesiastical-court-judgments-december-i/

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