Ecclesiastical court judgments – November 2020 (I)

Part I of the review of the ecclesiastical court judgments during November 2020

Eleven consistory court judgments were circulated in November, and the six featured in this first part of the round-up all relate to Reordering, extensions & other building works. The second part will review the remaining five which concern Bells, Exhumation and Churchyards and burials. It will also include Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

This Northern Province Lecture for the Ecclesiastical Law Society was delivered online in November 2020. Kate Davey, barrister and trustee of the Victorian Society, speaks on “Victorian architecture, the amenity societies and the parish church – a compatibility guide.”

The Cathedral and Church Buildings Division of the Church of England is seeking to hear from specialists in the history, care and conservation of religious buildings with the time and skills to serve on one of its voluntary expert committees. Expressions of interest are invited from specialists in the following areas: histories; the on-going use and development of historic buildings; care of collections; building performance and environmental sustainability. Application to arrive by Monday 10 January 2021.

Reordering, extensions & other building works

Other building works, including re-roofing

Re St. Andrew West Wratting [2020] ECC Ely 1 On 29th November 2019 a faculty was granted to the petitioners for the rendering of the external walls of the chancel and the east wall of the nave subject to the certain conditions [1]. The proposal was to protect the external walls of the chancel and the east wall of the nave, which are composed of rubble with field and flint stones and earth consolidated mortar, which is very soft, by applying lime rendering. The evidence was that the church stonework had been rendered during the 19th century. Three alternative thicknesses of rendering were proposed. The petitioners and the DAC could not agree on the rendering and in those circumstances the matter was returned to the Chancellor to determine [2]. He noted that for the work to be finished before the winter an early decision was required in order to allow the work to proceed. Whilst there was no party opponent, he decided to provide my reasons why I favoured Option A since: this is against the advice of the DAC; and also the use of this type of rendering to preserve the fabric of historic churches may be of wider interest [4].

After reviewing the benefits of lime rendering at St Andrew’s church [11] to [16], the Chancellor considered the views of the statutory consultees [17] to [19], and of the DAC [20] to [28] who decided not to recommend the works or proposals for approval by the court. Looking at the evidence overall, he concluded that St Andrew’s was, until Victorian renovations were undertaken, fully rendered. The number of areas where small amounts of unstable render remain, together with an early drawing and photograph of the church, supports that [29]. Whether the thickness of the render was closer to Option A or Option B was hard to discern; the effect on the final look of the rendered church will be negligible if apparent at all. The only place where it might show is where the render meets the stonework at corners, doors and windows [31].

In particular he made it a condition of the faculty that where the render meets the stone of windows, doors, buttresses &c, the render is to be feathered down to meet the stonework. This should prevent what might otherwise be an unsightly stepping between the stonework and the render and should prevent the creation of areas where water could collect [33]. He concluded:

“[33]. The DAC is rightly concerned that allowing the rendering of this church may give a green light to other churches in a similar condition. They can be reassured that each case will need to be looked at on its merits. In any event the costs of re-rendering will prevent many churches from contemplating undertaking the work. Nothing in this judgment should be taken as supporting like schemes without considering the merits of any individual application”.

[Re St. Andrew West Wratting [2020] ECC Ely 1] [Top of section] [Top of post]

Re St. Mark Mitcham [2020] ECC Swk 5  The vicar and churchwardens sought permission to replace the existing gas fuelled heating system with a new one, including a new boiler, pipework, radiators and controls, in the unlisted, twentieth century church [3, 4]. The Chancellor granted a faculty.

The judgment contains some comments by the Chancellor about the need for churches to work towards carbon neutrality in the context of the General Synod motion in February 2020 [7] to [10]. He expressed a hope that those who have to consider these matters in the wider church will find it helpful to have this judgment [11]. A separate post considers the alignment of practical issues addressed in the case with the Church of England’s target of “zero carbon” by 2030. [Re St. Mark Mitcham [2020] ECC Swk 5] [Top of section] [Top of post]

Re Holy Trinity Hurstpierpoint [2020] ECC Chi 7 The petition sought a faculty for: the internal reordering of the nave, aisles and transepts with the removal of fixed pews, alterations and resetting of distinctive pews and the provision of chair seating; the provision of audio visual facilities by way of smart screen within the chancel with back projection and wall mounted monitors set within the openings between the chancel and vestry and consultation space; a frameless glass door within the existing opening between the tower porch and welcome lobby [1]. The Victorian Society elected to become a party opponent, and filed a Form 5 [204] identifying (a) the substantial loss of the historic bench seating and (b) the installation of the glass projector screen [2]. However, on the afternoon before the hearing, it withdrew its objection to the glass screen on the basis that its introduction were limited to a fixed period of five years, a condition which the petitioners were prepared to accept. Thus, the only contentious element of the petition relates to the pews [3].

“Much time and energy in the run up to the hearing had been taken up in respect of expert evidence regarding the significance of the pews”. Whilst the specialist instructed by the petitioners concluded: ‘aesthetically the mid-19th-century pews at Holy Trinity, Hurstpierpoint are of only moderate significance {4], a conclusion with which the Victorian Society disagreed [5].

After  considering the source of expert evidence for the parties [5] to [11], the Chancellor stated [12]: “For contentious issue is the removal of the pews. The uncontroversial internal glass door, and the glass screen in relation to which the Victorian Society’s objection has been withdrawn, will be authorised.” After considering details of the proposal, [12] to [18], he reviewed in detail the petitioners’ evidence [19] to [57] and that of the Victorian Society [58] to [59] and that of the amenity societies and other consultees, Historic England, the Church Buildings Council, the DAC and the Local planning authority [60] to [67].

The submission of the Victorian Society [68] and [69], and that of the t[70] and [71] were reviewed. On the latter, the Chancellor stated:

“[70]. Mr Gallagher’s oral submissions [Counsel for the petitioners] were a little lengthier, and at times sought to go behind concession he had made at opening. I was not prepared to allow that. I disregard his unnecessary criticisms of the Victorian Society for the way they had conducted its case: any misjudgements had been overtaken by the petitioners’ concession on the expert evidence. I expressly rejected his submission that I should be wary of the content of Ms Root’s report. I disregard his submission that the Court could and should find a lower level of harm.

As noted earlier in this judgment, the pragmatic and fair means of achieving justice in this case, is to assume serious harm, and to focus instead on the disputed issue of justification which occupied the vast majority of the hearing”.

Applying the tests in Re St. Alkmund, Duffield [2013] Fam 158, having assumed serious harm, the Chancellor concluded that the evidence all points in one direction. “I might have entertained some doubts had I proceeded solely on the documentation, but hearing the witnesses give oral evidence, exposed to robust cross-examination, made me progressively more certain”. He had particular regard to twelve specific points relating to the uncomfortable nature of the pews, the “direction of travel” of mission and worship, and the readiness of the petitioners to engage with the Victorian Society to accommodate their objections [78].

However, he observed:

“[79]. The Court is in some difficulties in resolving this matter due to the non-engagement of the Victorian Society. The Court is satisfied on the evidence that a faculty should issue for the works as proposed. The Victorian Society has effectively closed the door on a solution which would have left all the remaining Barry pews unharmed and in storage, capable of being returned to their place in the nave at the direction of the Court.

Whilst I am not encouraging any such application, if on mature reflection, and having considered the assumed position on serious harm and my findings on justification, the Victorian Society is of the view that it would prefer the pews to be stored, rather than repurposed, there is provision for the Court to amend a faculty under r 20.3 of the Faculty Jurisdiction Rules 2015. I would be prepared to entertain such an application provided it were made within 14 days of the handing down of this judgment. It will be determined on its merits and all parties will be afforded the opportunity to make representations.”

The Chancellor was “driven to the conclusion that in this instance the petitioners have persuaded me on cogent and compelling evidence that the justification for the proposed works outweighs the harm that will result from their implementation”, applying “the heavy presumption against change where listed buildings are concerned, and adopting the approach that the more serious the harm, the more compelling the justification that the proponents of change must show” [80].

A faculty was granted, subject to conditions [81]. [Re Holy Trinity Hurstpierpoint [2020] ECC Chi 7] [Top of section] [Top of post]

Re St. Mary Penwortham [2020] ECC Bla 2 The petitioners sought permission to undertake works of repair to the parapet of the tower including re-bedding masonry and laying new lead, and also making repairs to the west window. The main items there are replacing stone in the tracery and mullions on the exterior and interior of the building, at a cost in excess of £54,000 [1]. The Executive Summary of the Quinquennial Inspection of July 2018 commented:

“[11]. …since the major re-ordering of 2009-11 had been carried out, a number of other projects had been undertaken, but ‘there had been little or no maintenance of the fabric and we would suggest that this should be prioritised. Evidence of water ingress is now damaging the fabric...’ Section 3.7 deals with the tower and west window, and there are relevant photos. ‘All mouldings on the west face of the tower are in an advanced stage of erosion and should be monitored. The aedicule [architectural surround, consisting of two columns or pilasters supporting a pediment] over the west door is missing. All mouldings to all windows on the tower are fragmenting and should be monitored against further erosion, and these are now deteriorating to a point where replacement stone tracery to the west window is required’. The photo at figure 34 indicates the erosion to the upper part of the exterior tracery, particularly well. The report described itself as ‘summary’, and made clear it was not a specification.

The work proposed on the window is far more complex than just the replacement of weathered stone with new cut pieces, and is summarized at [11]: [ferramenta – metal window grid to which glazing is secured; casement – side hinged windows]

There were no objections by HE and VS to the work on the parapet [14], but the Society for the Protection of Ancient Buildings objected to the proposed work to the west window, saying that the amount of the proposed replacement stonework was excessive and without justification [15] to [26].

Noting the “Duffield Questions” in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor concluded that the petitioners had established that far-reaching repairs are required at this time to this window. Further reports by others may have produced alternative views, but he was not minded to adjourn his consideration and a final decision until the church undertakes to provide a further report. “They have in my judgment provided sufficient support for the position taken by their architect. Faculty granted [36]. However, he added:

“[35] One expects all those involved in faculty proceedings, to act with civility towards others, their own advisers, and those who may be viewed as objectors. That does not take away the fact, faculty proceedings can give rise to considerable stress and worry, and consequent strong feelings, which may sometimes be expressed in strong terms, at least privately. If some of those sentiments escape into the wider world, that is unfortunate, but there is no escaping the fact legal proceedings are a ‘contact sport’ and some bruises and abrasions are likely.”

 [Re St. Mary Penwortham [2020] ECC Bla 2] [Top of section] [Top of post]

Re St. Helen Lea [2020] ECC Lin 3 The petitioners sought a faculty for the removal of the existing 19th century glass quarries in the west window of the church, in order to incorporate a new stained glass window in memory of members of the Marshall family, who had close links with the church and were associated with the local engineering company Marshall & Sons & Co. [“quarries” are “square (or diagonal) panes of glass supported by lead strips (cames)]. The design incorporated a Marshall traction engine ploughing through a field and the design of a cross in the ploughed furrows.

The west window is made up entirely of Whitefriars quarries dating from around 1848. The proposal was that the stained glass in the two lights of the west window should be removed and replaced with the new design. This removed glass will then be incorporated into the east window and also to the lower half of 2 lights in the vestry window. However, there was no petition for the treatment of these two windows with the removed quarries. The Chancellor therefore assessed the proposal on the basis of what was proposed for the west window alone [4]

Neither the Victorian Society nor the CBC objected to the proposal [5] and [6], but Historic England recommend that the west window should remain in situ because it makes a positive contribution to the church and illustrates the designs and ideas current in the 1840s [7]. The PCC rejected HE’s alternative suggestion [8]. Although there had been no party objection, the Chancellor considered the concerns raised by HE and the CBC against Re St. Alkmund, Duffield [2013] Fam 158 [9] to [12]. He was satisfied that the harm to the building will not be serious given the new design of the 2 lights of the west window [13], and that a petition should be granted in the terms sought but to conditions concerning: window guards; the storage of the quarries; and a petition for a Faculty for the redesign of the east window and the vestry window incorporating the use of the removed quarries. This is to be presented within 12 months, but if not so presented, the petitioners must set out in full the reasons why no petition has been sought, the time table for the redesign of the windows and their proposals for the continuing storage of the quarries [14].  [Re St. Helen Lea [2020] ECCLin 3] [Top of section] [Top of post]

Removal and replacement of pews &c

Re St. James Buxworth [2020] ECC Der 5 The petitioners sought to remove and dispose of just over half of the pew-seating, leaving just five rows at the front of the nave, on either side of the aisle; at present there are a total of 10 pews on the north side of the aisle and 11 on the south, all of similar size [3]. Further, they wish to introduce approximately 50 stackable chairs with tubular metal all around frames, with upholstered seats and backs in a blue material, together with a number of lightweight tables with foldaway legs [4]. Chancellor Bullimore commented:

“[6] I was exercised as to why 11 pews were to be disposed of in the proposal, and I now gather that the remaining 10 can then be conveniently cleared to the side walls. Otherwise, it appears there has to be ‘double -parking’ as things are at the moment, or some other space has to be found for temporary storage. Thus the proposal to dispose of 11 pews is based on an extraneous consideration, as it seems to me, and that the clearing away is not directly connected to an actual or perceived need for the space they occupy. I do not consider this can be a controlling factor in the decision. I note, but cannot explain, that the wardens believe11 pews will be retained, not 10, as my consideration of the plan indicates. No matter!”

The DAC recommended the proposals, save that the choice of chair was to be agreed by the DAC. They considered the work was likely to affect the character of the church as a building of special architectural or historic interest, and recommended consultation with Historic England, the local planning authority and the Victorian Society [8].

Historic England did not wish to comment [9], but the Victorian Society objected to the removal of the pews (or so many of them) and the replacement chairs. The Chancellor cited Chancellor Hill QC [at 15] who “succinctly set out the approach to issues such as this in his recent decision Re St. Andrew Ferring [2020] ECC Chi 5 at paragraph 10:

“The approach of the consistory court when changes to a listed building are proposed, is to adopt the so-called Duffield framework which considers the harm that would result to the building and the justification for carrying out the works. The crucial final step, mindful of the heavy presumption against change, is whether any resulting benefit would out weigh the harm caused. There is no longer a necessity hurdle for petitioners to meet.”

The Chancellor noted that it was clear that the church is underused, and the petitioners and wardens are anxious to raise its profile in the community and make it more usable (and used) than at present. Despite the Victorian Society’s repeated strong criticisms made by Mr Hughes, they persuaded him that their (pre-Covid) plans move in that direction and that what they propose will be of benefit to both the worshipping community and the wider community; “[n]onetheless there is (perhaps inevitably) little detail as to what events or happenings will take place that will actually give effect to their aspirations, nor any certainty how their proposals will turn out . Things seem to have proceeded on the basis ‘if we clear it (the nave), they will come’[16]”.

However, he observed

“[18]. There has also been no great acknowledgement by the petitioners, as it seems to me, until recently, that this is a listed building, and that as a result, there are responsibilities laid on the church authorities to ensure the structure overall should not be interfered with, without a clear justification. Even if a proper justification for some level of re-ordering is made out, there is still a need to ensure that the harm to the significance of the listed building is limited to the least extent that is justified”.

[19]. In general terms, the effect on the building’s significance of removing pews, must relate to the number to be removed…Here the removal of 11, is to take away a proportion marginally greater than one-half. I consider the effect visually will be significant, and will leave the remaining pews looking rather lonely.”

“[20]. …I think the best way to proceed is to allow a smaller number of pews to be removed, than that proposed, bearing in mind that the removal and disposal of any of these original pews, will not allow for ‘second thoughts’. Once they are gone, they will be gone. On the other hand, if the church is to have the opportunity to see what positive effect its proposals will have, the amount of space to be cleared, has to be realistic and allow them to try out what they are seeking to achieve.

The Victorian Society in its careful response to the consultation, which was too readily dismissed by [the Deputy Churchwarden], in his enthusiasm to push on with a mission initiative, as he saw it, has suggested a maximum of 7 pews rather than 11. That gives, to my mind, some expert indication to enable a decision to be reached as to the ‘right’ answer. While it comes more from the ‘heritage side’ than from the ‘mission side’, it takes due account, in my judgment, of the need to limit any changes to the least reasonably required, while preserving the overall appearance of this listed building. It represents one-third of the present seating, which is a significant proportion”.

In conclusion, the Chancellor was prepared only to approve the application to a limited extent, subject strictly to the conditions stated[24]. It was ordered:

  • The petitioners may remove up to seven individual pew benches from the west end of the nave, and dispose of them.
  • They may introduce up to 30 stacking chairs of a design and material to be agreed with the DAC, together with up to 8 of the folding lightweight tables for temporary use as necessary, of the kind illustrated on the photo submitted.
  • In the event no agreement as to design and material of the chairs (for the frames or seat and back covering (if any)) is reached within 6 months of the issue of the faculty, the matter is to be returned to the Court for decision or further directions
  • No pews are to be removed permanently unless and until the design of the replacement chairs is resolved by agreement with the DAC or order of the Court.

[Re St. James Buxworth [2020] ECC Der 5] [Top of section] [Top of post]

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

Cite this article as: David Pocklington, "Ecclesiastical court judgments – November 2020 (I)" in Law & Religion UK, 2 December 2020, https://lawandreligionuk.com/2020/12/02/ecclesiastical-court-judgments-november-2020-i/

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