Review of the ecclesiastical court judgments during January 2020 

This post reviews the first nine of the seventeen consistory court judgments that were circulated in January; these relate to Reordering, extensions & other building works. This second part will covers the remaining eight judgments relating to: Exhumation; Churchyards and burials; AV Installation; Bells; and CDM;  also included are links to other posts relating to ecclesiastical law.

Reordering, extensions & other building works

• Substantial reordering
• Other building works, including re-roofing
• Removal and replacement of pews &c

Substantial reordering

Re St. Clement Oxford [2019] ECC Oxf 5 The petitioners sought a major reordering of the Grade II* listed church situated within the St Clement’s/Iffley Road Conservation Area [1]. By a Notice of Advice issued, the DAC, whilst recognising that the proposed works were likely to affect the character of the church as a building of special architectural or historic interest, nevertheless recommended them for approval, subject to the retention of the remaining pew doors, which are currently stored within the church [3].

The St Clement’s congregation has been consulted widely on these proposals. Two consultation processes in the Spring and then Summer 2018 demonstrated a high level of enthusiasm for these developments. The proposals have been adapted to take account of congregation comments and suggested improvements. PCC support for these proposals is unanimous [5]. A few specific aspects of the proposals may be perceived as harmful to the significance outlined in the Statement of significance: (1) the proposal to dispose of a proportion of the 1870s pews, which have been recognised for their design merit and their being unusual for following the style of the building; (2) the proposal to lift and plane smooth the feet of the remaining pews while reconditioning the nave floor so that the pews can be moved for flexibility in the nave space; and (3) the proposal to dispose of the redundant pew doors, which were original to the pew design. In each case, the petitioners argued that any perceived harm would be outweighed by public benefit [7]. Historic England had no objections to the proposals [8].

The court agreed with the observation of the DAC’s Senior Church Buildings Officer on the local planning authority’s response that Historic England’s comments “… better reflect the significance of the church interior as it is today and perhaps indicate that an update to the listing description is needed” [9].

The Victorian Society wrote to register its “serious concerns and objections”; these include: the central pews in the nave being made moveable and to the proposal to replace the aisle pews with upholstered chairs. The Society also argued that some of the pew doors, removed at sometime within the past 50 years without authority, should be reinstated [10].

In view of its Grade II* listing, the faculty application was addressed by reference to the series of questions identified in of Re St Alkmund, Duffield [2013] Fam 158 at paragraph 87 (as affirmed and clarified by that Court’s later decisions in the cases of Re St John the Baptist, Penshurst (2015) 17 Ecc LJ 393 at paragraph 22 and Re St Peter, Shipton Bellinger [2016] Fam 193 at paragraph 39) [15 to 17].

The Chancellor was satisfied that a case had been made for making the nave pews moveable, but made it a condition of the faculty that doors should be replaced on three rows of pews. He also approved the proposed replacement of the aisle pews with upholstered chairs, as well as the other items of reordering. [Re St. Clement Oxford [2019] ECC Oxf 5] [Back] [Top]

Other building works, including re-roofing

Re St. John the Baptist Halesowen [2019] ECC Wor 7 The proposals included: (1) replacing the iron gates to the porch with glazed sliding doors; (2) new porch lighting and glazing of one porch window to match the other; (3) relocation of the internal 1906 wooden lobby to the west end of the south aisle and its conversion to storage space; and (4) removal of a pew in the south aisle to allow the relocation of the lobby; and (5)) replacement of the ramp inside the lobby with a new ramp with handrails.

The Chancellor shared the concern expressed by Historic England as to the wisdom of relocating the lobby as proposed. “To do so will require a substantial amount of additional carpentry, as well as the loss of a pew. It will result in a storage facility that will only be limited use – certainly compared to a purpose-designed set of cupboards and drawers. I think that the re-located lobby will look odd, and out of place, and may very well before long be the subject of a further petition seeking a faculty for its removal” [27]

He was therefore unwilling to authorize the relocation of the lobby as proposed – and since there was no proposal before him seeking the removal of the lobby without its relocation elsewhere within the church, he was also not willing to authorize the removal of the pew and its plinth, to enable the relocation of the lobby (the fourth of the items listed at paragraph 6 above). Furthermore, it would be premature to consider the ramp until the future of the lobby has been determined [28].

The Chancellor granted a faculty for items (1) and (2), relating to the porch, subject to conditions, but not the remaining three items, those relating directly or indirectly to the lobby. [Re St. John the Baptist Halesowen [2019] ECC Wor 7] [Back] [Top]

Re St. George Kidderminster [2019] ECC Wor 4  The church is set in a prominent position within a well-maintained churchyard on a sloping site a quarter of a mile from the town centre, but somewhat isolated from it by the ring road. The church, and the tower in particular, are visible from miles around [2]. The petitioners sought a confirmatory faculty for the retention of an illuminated cross to hang from the tower during Holy Week and Eastertide, at Christmas, and on other occasions as appropriate [3]. The cross has been permanently in situ for two years, but only lit occasionally; it was installed the basis of an Archdeacon’s Licence for temporary reordering which was granted on 27 May 2018 [5].

An Archdeacon’s licence was considered inappropriate: one may only be granted for “a scheme of temporary minor re-ordering” (see Faculty Jurisdiction Rules 2015, rule 8.2(4)). That is designed to authorise on a temporary basis a scheme of internal reordering, prior to a more permanent scheme being proposed and authorised [6]. “The present proposal does not seem … to fall happily within the scope of ‘re-ordering’; nor, in view of its visibility, can the cross necessarily be said to be ‘minor’; and whilst the cross will presumably not be in place for ever, it is only questionably temporary’” [7]. The Chancellor commented:

“[10]. This is an unusual proposal; but I am satisfied that there is no reason why it should not be allowed. And since the petition is for a confirmatory faculty, there is no need for any conditions to be imposed, subject to my observations below as to the maintenance of the cross and its eventual removal.”

The court considered whether authorisation under the planning Acts is required for the cross, in the form of either planning permission under the Town and Country Planning Act 1990 or consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 [11]. With regard to whether the cross should be regarded in law as an advertisement [12 to 16], it seemed clear to the Chancellor  that the cross at St George’s was either a “model” (albeit a stylised one), or a “device” – or, of course, possibly both. It therefore constituted an “advertisement” for the purposes of the Act and the Regulations [17].

Since deemed consent was not available under the 2007 Regulations, express consent under the Advertisements Regulations was required. “There is no ecclesiastical exemption from the need for such consent – even though in practice many planning authorities seem to operate as if there is” [21].

In addition, the display of the cross at St George’s would probably constitute a building or engineering operation, and thus “development” within the meaning of section 55 of the Town and Country Planning Act 1990, for which planning permission would normally be required. However, planning permission is deemed to be granted for any display of advertisements that is in accordance with the Regulations –  section 222, and once express consent under the Advertisements Regulations has been obtained, therefore, planning permission will not be required [23, 24].

On the relationship between advertisements consent and the faculty system:

“[25]. The display of the cross in this case requires both an application for express consent under the Advertisements Regulations and a petition for a faculty under the Faculty Procedure Rules. And if either consent were to be refused, the display would be unauthorised.

[26]. But there is no requirement in either the Regulations or the Rules as to one or other having to be obtained first. The faculty petition form merely enquires whether secular consent (usually planning permission) is required and, if so, whether it has been sought or obtained”.

The Chancellor granted a faculty for a term of 5 years, subject to consent being obtained under the Advertising Regulations, and subject to the cross being illuminated on not more than 28 days in each calendar year, with leave to apply for further extensions of 5 years, without the need for a further faculty petition. [Re St. George Kidderminster [2019] ECC Wor 4] [Back] [Top]

Re St. Botolph Boston [2019] ECC Lin 2 The petitioners sought to install new internal glass porches to the north and south entrances of this Grade I listed church. In its letter 20/9/18, St Botolph’s is described by Historic England (‘HE’)as a ‘spectacular parish church’  and ‘is of outstanding quality both externally and with its magnificent interior”. Whilst “a consensus seems to have been reached about the proposals for the south porch, but in respect of the north porch there has been a change in the proposal which is not supported by HE” [1]. The PCC considered three treatments of the south porch: (i) installing an internal lobby; (ii) installing an internal screen to the south porch; and (iii) glass doors to the internal south porch reveal. Option (iii) was the preferred option having minimal effect on the fabric and being reversible [4, 5].

In 2018 the PCC changed architects and a new proposal was submitted for the north porch which reflects the concerns expressed by the DAC; the new design blends in with the existing woodwork and design of the shop/servery area [14]. The Chancellor was satisfied that the new proposals for the north porchway were appropriate and justified. These meet the need that the Petitioners have plainly established, whilst at the same time maintaining a design that is in keeping with the church [18]. A faculty was granted, subject to conditions [19]. [Re St. Botolph Boston [2019] ECC Lin 2] [Back] [Top]

Re St. Bartholomew Tong [2019] ECC Lic 9 The churchwardens and the priest in charge wished to introduce oak screening and cupboards at the east end of the north aisle of the Grade I church, to provide a storage area for chairs and other items [3]. The works would involve the moving of the tomb of Sir Humphrey Vernon; this is an empty chest tomb dating from the 1530’s with an alabaster top on which there appear incised effigies of Humphrey and Alice Vernon. The proposal is for the alabaster top to be relocated and to be positioned on the wall of the south porch while the sides of the tomb are to be dismantled under archaeological oversight and then disposed of [4].

The Diocesan Advisory Committee certified that the proposed works would affect the special significance of the church but recommended approval subject to consideration of the details of the proposed joinery [5]. Historic England was supportive of the proposals commenting favourably on the “comprehensive and well detailed supporting documentation”; the Victorian Society stated that it does not wish to comment on the proposed works [7] and [8].

There was one letter of objection, the objection being that if the storage area was constructed at the east end of the church, it would preclude the proposed installation in that area of a proposed toilet and kitchen facility [12]. The petitioners’ considered response was that the west end was the better option [16]. The Chancellor considered the petition in the light of that the approach laid down in Re St. Alkmund, Duffield [2013] Fam 158 as modified by Re St. John the Baptist Penshurst [2015] Court of Arches (Rochester). He determined that a proper case had been made out for the grant of the faculty and the objections raised could not operate to prevent the grant of permission. Accordingly, a faculty will issue in the terms sought. [Re St. Bartholomew Tong [2019] ECC Lic 9] [Back] [Top]

Re St. Michael and All Angels Blackheath Park [2020] ECC Swk 1 This case included a discussion of the effect of floodlighting on the carbon footprint of the church. It commenced: “Except perhaps for a few climate change deniers, everybody takes climate change with ever increasing seriousness”[1]. With references to Greta Thunberg, the Archbishop of Canterbury, Shrinking the Footprint, and the commitment to be an Eco Diocese in the first five paragraphs, environmental issues were put centre stage. In granting permission, the Chancellor commented:

“[29]. The Diocesan Environment Working Group will want to consider this judgment. At an earlier stage of my consideration of these proposals I ascertained that it was not its role to give me advice on specific proposals; that role remained with the DAC. The direct implications for the future of this judgment would seem to be that parishes should carefully consider the effects on the carbon footprint of the installation of floodlighting but that, having done so, the decision on whether to install it is a matter for them. Potentially some Diocesan guidance might be helpful but whether the Working Group feels it appropriate for it to give it is of course entirely a matter for it to decide”.

The Chancellor noted that there was one specific document on floodlighting: Guidance Note Floodlighting issued in 2012 by the Church Buildings Council. However, we would note that whilst the general principles of floodlighting church buildings are unlikely to have changed, the same may not be the case for the technology and the assessment of the associated carbon footprint, and perhaps an update of the guidance might be considered. The Chancellor granted a faculty to permit the installation of external floodlighting. The judgment contains a discussion of the effect of floodlighting on the carbon footprint of the church. [Re St. Michael & All Angels Blackheath Park [2020] ECC Swk 1 (2)] [Back] [Top]

Re Holy Trinity Mapperley [2020] ECC Der 1 The judgment concerns the disposal of the pulpit of this unlisted church that was not mentioned on the original petition which concerned only the heating; however, it emerged on the papers as part of what the petitioners wanted to do, and, in the event, proved controversial. Chancellor Bullimore had written a lengthy Note pointing out the procedural deficiencies of the petitioners’ proposal to remove the pulpit. I set out the steps that needed to be taken if he were eventually to rule on the question: viz. there had to be a clear vote by the PCC approving that course; and either an amendment to the schedule of proposals on the petition; or a fresh petition dealing with that specific issue, together with fresh public notices making clear this was part of the proposals [1].

“For no obvious reason”, this took longer than anticipated, and in the meantime, two further individuals raised objections, although they did not wish to become formal objectors.  The petitioners wished to remove permanently from the 1960s church the original pulpit, which  had not been used for 20 years;

Reflecting on the importance of pulpits, generally, the Chancellor stated:

“[12]. The current Canons of the Church of England do not require the provision of a pulpit in a church, unlike the font and the holy table, although the Canons Ecclesiastical of 1603-4 imposed the obligation to do so. Nonetheless, a pulpit is still so much a regular feature of a church, and represents such a significant part of the necessary furnishings of the church for worship, primarily for the exposition of Scripture and exhortation and encouragement of the congregation, even if that is often done from some other convenient place, that its removal has to be specifically sanctioned.”

Three individuals objected to the proposal, but the Chancellor determined that the pulpit “does little, if anything, for the look of the interior, and it is not an item of intrinsic worth or merit.” [28].

“Not without some hesitation”, he came to the view the petition should be granted so the petitioners would be  free not to return the pulpit, and may destroy or otherwise dispose of it.

” Although three individuals have objected, there is a clear preponderance on the PCC for getting rid of it. It does little, if anything, for the look of the interior, and it is not an item of intrinsic worth or merit. It has not been used as frequently as it was originally intended, or as it was in its early life, even if it cannot strictly be said to have been unused for 20 years…

My hesitation is that the petitioners have not demonstrated any really positive case for disposing of it, save that it is redundant … Once it has been established – as in my view it has – that the pulpit is no longer needed and is redundant in respect of the church’s needs, there are no sufficient countervailing arguments for it to be kept”.

He accordingly granted a faculty. [Re Holy Trinity Mapperley [2020] ECC Der 1] [Back] [Top]

Re All Saints Lubenham [2019] ECC Lei 4* Chancellor Blackett-Ord stated that he intended to adjourn the instant application for further information for reasons given in his judgment [1]. The application was for a memorial to those who died in World War II: a marble slab inscribed with a list of the seven names and the regiment (or naval warship) of each; the memorial is to be fitted on an internal wall below the existing World War I memorial; it is intended that there should be preserved an existing candle-stand on which a single candle is currently kept, lighting a patch of wall where the World War II memorial is intended to go, underneath the World War I memorial; below the candle will be a lectern with a book of remembrance, [3] to [6].

The Chancellor explained “My fear is that the proposed memorial will simply look mean in comparison with the World War I memorial. Perhaps I am wrong. But I have insufficient details to satisfy me” [7]. There were also siting issues associated with the candle [12]. He concluded:

“[15]. In my view the scheme requires rethinking. I know that the DAC has already expressed support for it but I would like revised proposals to be submitted to them.
[16]. In the meantime, I return the Petition to the Registrar and adjourn it.”

[Re All Saints Lubenham [2019] ECC Lei 4] [Back] [Top]

Removal and replacement of pews &c

Re Holy Trinity Christchurch [2020] ECC Win 2 The church of the Holy Trinity, Christchurch, better known as Christchurch Priory, is “an impressive grade I listed building dating originally from Norman times. It is further distinguished by being a major monastic church which yet survived the reformation essentially intact”. The petitioners sought permission for the permanent removal of the last three remaining rows of 20th century pews from the nave to ‘facilitate flexible use of the nave for worship and missional events’. These pews have already been removed on an experimental basis under a temporary reordering licence [1].

No objections were raised by the amenity societies or by the Local Authority [4]; the only objection was from a Licenced Lay Minister who is also a member of the PCC [5]. The Chancellor considered the petition in the light of that the approach laid down in Re St. Alkmund, Duffield [2013] Fam 158 as modified by Re St. John the Baptist Penshurst [2015] Court of Arches (Rochester). He was satisfied that the benefits of removal far outweighed any disadvantages and he accordingly granted a faculty. [Re Holy Trinity Christchurch [2020] ECC Win 2] [Back] [Top]

Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.