A dismantled organ, a deceased organ builder, and a digital dispute

The church at the centre of this dispute will be familiar to fans of the TV series Downton Abbey since it featured in Season 3 as the location for “one of those unforgettable TV moments—Lady Mary FINALLY weds Matthew Crawley, in the grand Downton Abbey wedding we’d been waiting years to see” (according to BRIDES web site). The church’s legal name is St Mary’s, Bampton Proper, CHR 627236, and the events surrounding the restoration of its organ resulted in somewhat of a dilemma which was resolved legally (if not to everyone’s musical satisfaction) in Re St. Mary Bampton Proper [2020] ECC Oxf 6.

The online faculty petition dated 3 February 2020 was submitted by the vicar and churchwardens of this Grade I listed medieval church (extensively restored in 1868-1870) for Cousans Organs Ltd (Cousans) of Coalville to renovate, repair and update the church’s existing pipe organ, to include the addition of digital stops, and to reintroduce the organ into the church in its previous position against the east wall of the south transept [1]. The facts to the case are [emphasis added]:

“[2]. … A faculty was already in place when Ms Kitch [the diocesan Senior Church Buildings Officer] arrived in the Diocese in July 2016. This faculty permitted the restoration of the organ by Peter Collins Ltd. There would appear to have been no consultation with the Church Buildings Council (CBC) or the British Institute of Organ Studies (BIOS) over the works. The organ was removed from the church and works began but shortly after this Peter Collins sadly passed away and his firm went into administration. The organ was removed to Cousans for storage.

Around this time a large number of complaints were received from members of the BIOS who had seen the works reported upon in the BIOS journal. The then Chancellor took the decision to set the faculty aside as the named contractor was no longer able to complete the work. This meant that the parish found themselves with the pipe organ in storage (incurring storage costs) but no contractor or faculty to undertake any works.

A new contractor, Cousans, was found and the parish began to work with the Diocesan Advisory Committee (DAC) to obtain a new Notification of Advice (NoA) for the proposals. Initially these involved a like-for-like reproduction of the specification of works which had previously been granted faculty permission. However, the parish came to enjoy the enhanced flexibility of space within the south transept which had become available to them whilst the organ was in storage and so they began to explore ways in which this could be maintained following the future reintroduction of the instrument. It was concluded that no other location in the church was suitable for the instrument and so the parish suggested the reintroduction of the organ to the south transept, but on a raised platform (or gallery) to enable them to make use of the space below.

Initially, the DAC and the amenity societies all agreed to this proposal in principle. However, upon working with the organ builder, the architect and the structural engineer it became apparent that a structure sufficiently stable to support the restored instrument (itself a lot larger in order to increase its voice) would be much larger, and far more invasive to the historic fabric of the church, than had previously been thought. Again, alternative options were explored, including the disposal of the instrument, and its location elsewhere within the church at ground level. Due to the increased size of the instrument, this continued to create difficulties. However, it was established that the use of digital stops would mean that the instrument could be almost exactly the same size as it was when it was first removed – meaning that it could be reinstated in the south transept.

The CBC and the BIOS have been extensively consulted during the development of the revised scheme, and neither are comfortable with the use of digital stops to create a hybrid instrument. A great deal of concern has, quite rightly, been directed at establishing what historic significance should be accorded to the parts of the organ which remained after Peter Collins had disposed of a good deal of the original instrument, and in relation to the philosophy and practicalities of a hybrid instrument.

The parish appointed an independent organ advisor, Mr Paul Hale, to work with them in addressing these concerns. However, notwithstanding much discussion, some of these concerns still remain, and it would appear that little can be done to allay them. As far as Ms Kitch has been able to discern, every option to avoid the use of digital stops has been explored only to be discounted, with the church considering their use to be the only way of enabling the organ to be reintroduced into the church with, hopefully, sufficiently improved voice. Unusually, the DAC organ advisers were of the view that a totally electronic instrument would meet the musical needs of the parish, whilst releasing the former organ space for parish use.

However, the parish are keen to retain their pipe organ. It is Ms Kitch’s view that the parish have worked tirelessly to find a solution to the present problem and at each stage they have listened to the feedback given by the amenity societies and the DAC. As much information as possible has been provided on the remaining parts of the instrument, and the DAC have placed a proviso on their NoA requiring a full inventory of the existing pipework to be carried out, identifying each pipe, its condition, and its location in the new instrument.”

Much of the 24-page judgment further expands the “long and difficult history” of the present organ proposal [5] to [21], and the discussions between the church, the amenity societies and others in the developing the Statement of Needs [4]. In addition to the technical issues considered, the CBC and BIOS queried whether Cousans organs was the best firm for the work, noting that it is not IBO accredited [5].

In January 2020, independent organ advisor appointed by the parish prepared a Further Advice dated 6 January 2020 addressing [16]: the current and future needs of the church; the position of the organ within the church; and the historic pipework which considered the means of “accomplishing the desired result”, and the need for “pragmatism rather than purism”. This resulted in further discussions between the parties [17] to [21], following which the Chancellor, The Worshipful David Hodge QC considered “the proper approach” [an incidental play on words] in relation to the questions in 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).

Following a review of the authorities –  Re St Nicholas, Warwick [2010] 12 Ecc LJ 407Re St Nicholas, Radford Semele [2012] 14 Ecc LJ 457Re St Nicholas Guisborough [2018] ECC Yor 6, and Re Saint Mary’s, Balham [1978] 1 All ER 993 at 997 – the court derived the following propositions by way of non-exhaustive guidance when considering the issues raised by a faculty application involving the replacement of an existing church organ [30]:

“(1) Although not a principle of law, there is an expectation, amounting to a presumption, that the appropriate replacement for a pipe organ is another pipe organ and the burden lies on those who seek to say that some other instrument is an appropriate and adequate replacement. It will be possible in a suitable case for that burden to be discharged; but the lasting benefits of a pipe organ are not lightly to be disregarded.

(2) That is still the case even where a previous pipe organ has been removed or destroyed as the presumption in favour of a pipe organ results from the musical quality and longevity of such instruments.

(3) Arguments that a digital organ will cost less in terms of either capital outlay or maintenance may carry little weight. Over time, pipe organs are better value for money than organs with a more limited lifespan and the court will not be sympathetic to arguments that it is justifiable to install something of lesser quality simply because it is cheaper.

(4) The court is also likely to discount arguments that a digital organ is easier to play by a non-expert organist on the footing that the church should be taking steps to find, nurture, and encourage future new organists.

(5) In deciding whether the burden has been discharged, account will need to be taken of: (a) the wishes, needs, and resources of the parish in question; (b) the comparative costs involved; (c) the merits and demerits of the proposed alternative; (d) the scope for other solutions; and (e) the steps taken to consider potential alternatives. The last of these is likely to be a significant factor. The presumption in favour of a further pipe organ is more likely to be rebutted by those who can show that the preference for an alternative results from careful and reasoned consideration after lengthy, balanced, detailed, and informed investigation and research …

(6) It is not the court, but the congregation, who will have to live with the organ in question, whether it be a new instrument or an old one undergoing renovation and repairs. It is not for the court, as such, to have a policy about organs, save to ensure that the best is done for the church and their congregation having due regard (as the court is enjoined to do by s.35 of the Ecclesiastical Jurisdiction & Care of Churches Measure 2018) to the role of the church as a local centre of worship and mission.

(7) The Chancellor must have regard to the advice of the DAC but is not bound to accept it if there are good reasons for not doing so.

There were circumstances specific to the Bampton petition, including:

  • the petitioners were not seeking to replace an existing pipe organ with a digital organ but rather the re-introduction of the church’s historic pipe organ renovated, repaired and updated, with some of the bass stops being provided by digital recordings of pipes rather than the pipes themselves [31].
  • the church’s historic pipe organ had already been lawfully dismantled and removed from the church pursuant to an earlier faculty (now set aside) so that it no longer strictly forms part of the fabric of the church building. In the present case; however, the church still retains the historic organ case and pipework [33].

As a consequence of this latter point,

“[33]. None of this will result in any harm to the significance of the church as a building of special architectural or historic interest (as the DAC rightly recognised in their NoA). Rather, it will enhance that significance. Since, in large part, the proposal merely seeks to restore the position to what it was before the removal of the organ for restoration in 2016, the presumption against change is not meaningfully engaged. …The only controversial feature of the proposal (described by Mr Hale as a “compromise”) is that some of the bass stops will be provided by digital recordings of pipes rather than the pipes themselves”.

[…]

“[37]. Notwithstanding the reasoned objections expressed by the CBC and the BIOS, the court preferred the evidence and representations in support of the petition from the petitioners and their expert organ adviser. Whilst not bound to do so, the court accepts the recommendation of the DAC to approve the proposal … On the evidence, and in the circumstances of this case, the petitioners have shown that the digital stops are required to secure the sizing of the organ needed to meet the restrictions of the only practical space available to accommodate it within the church and to render the organ “musically fit for purpose”; and that, in this case, these considerations are sufficient to outweigh (or “trump”) the resulting harm to the “instrument’s integrity and historicity”. The court is further satisfied that the petitioners have discharged the heavy burden that rests upon them of justifying the introduction of digital stops on a traditional pipe organ”.

The court’s reasons are listed in paragraph [38], and may be summarized as:

  • it is satisfied that the petitioners have considered all potential alternatives to the installation of digital stops on the church’s historic pipe organ.
  • having sought and received appropriate expert advice, the petitioners have clearly consulted widely within the church and the local community and the present proposal has their strong support.
  • there is really no other solution if this splendid pipe organ is to be re-installed in the church. The digital solution is a necessary compromise which gives the church a splendid restored organ, retaining many of the components of the ‘old’ organ which, hopefully, will provide the congregation with a sound accompaniment they can be proud of.
  • the proposal is not driven by cost concerns or by the lack of a church organist capable not only of playing a pipe organ but maximising its potential. The church’s proficient and experienced existing organist is fully supportive of the present proposal.
  • the present proposal has been recommended for approval by the DAC after what has clearly been sustained and anxious consultation and consideration.

For the above reasons, the court granted the faculty as asked subject to the conditions that: a full inventory of the existing pipes is to be carried out, identifying each pipe, its condition, and its location in the new instrument; any existing pipe not used in the renovated organ is to be retained in safe and secure storage (as directed by the DAC or the court) and is not to be disposed of without the written agreement of the DAC or further order of the court.

The period of the works will (in the first instance, and due to present Government restrictions) be 18 months from the date of the grant of the faculty.

Footnote

Although the church was used as the set for the Downton Abbey wedding scene, the organ in question played only a peripheral role. Whilst Lady Mary walked down the aisle to Wagner’s Wedding March, played on the church organ on each of the fifteen or so rehearsals and  “takes”, in the final version seen by television viewers, the music had changed to Stanley’s Trumpet Voluntary in D played by a different organist on a completely different organ.

Cite this article as: David Pocklington, "A dismantled organ, a deceased organ builder, and a digital dispute" in Law & Religion UK, 9 April 2020, https://lawandreligionuk.com/2020/04/09/a-dismantled-organ-a-deceased-organ-builder-and-a-digital-dispute/

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