Ecclesiastical court judgments – February 2021 (I)

Review of the ecclesiastical court judgments during February 2021 (I)

Eleven consistory court judgments were circulated in February 2021, and the four featured in the first part of the round-up all relate to Reordering, extensions & other building works. The second part reviews the remaining seven judgments which concern Exhumation and Churchyards and burials. This summary also includes CDM Decisions and Safeguarding and a link to the new CDM Guidance on Penalties, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Reordering, extensions & other building works

Substantial reordering

Re All Saints Ockbrook [2021] ECC Der 1 The petitioners proposed an extensive reordering of the Grade II* listed church, to facilitate greater use for the community; the 13 elements of the reordering are listed in paragraph [1] and include: new kitchen and toilets; a disabled access ramp; a second fire exit; replacing pews with chairs; disposal of the pulpit; moving the font; new heating and lighting; and works to the western gallery. These works have been under consideration for some time and there has been widespread consultation with local residents, with the amenity societies and with Historic England. There were objections to some aspects of the proposals from the amenity societies – the Ancient Monuments Society, the Georgian Group and the Victorian Society have all written letters – and Historic England, which had written three letters of representation, although none of these bodies has become a party opponent and they have filed Forms 5A asking that the Chancellor took their objections into consideration. Comments have also been made by the Church Buildings Council in a report dated 8 April 2020 following a site visit [4]. The works were estimated to cost £350,000 of which the £300,00 had been raised to date; they were supported by the PCC which approved the proposals by 9 votes to 0 [6].

Given the number of items of work proposed, (i.e. thirteen) the Chancellor set out the evidence provided in support of each, in turn, together, where relevant, with the objections raised [6] to [34]. He then reviewed the applicable legal principles before determining whether the proposed works should be permitted. [36] to [51]. In summary and in conclusion, he granted a faculty for works (1) To install an internal ramp to the west door; (2) To remove the inner doors to the Nave; (3) To fill-in the central part of the balcony; (4) To fit a glazed screen across the Nave to the front of the balcony; (5) To install a new kitchen, toilet facilities (including disabled-access facility) and meeting room under the balcony; (6) To remove the pews from the Nave and balcony and replace with high-quality stackable wooden chairs or benches; (7) To re-site the font; (8) To convert the existing toilet into a boiler room;(9) To provide a new emergency exit through the north-east wall of the Nave into the old boiler room and to provide storage in this space; (10) To replace the heating system with under floor heating; (11) To refurbish the meeting room under the tower; (12) Redecoration of the Nave, Chancel and associated areas, subject to  conditions [52]. However, he declined to grant a faculty for the removal of the pulpit and for new lighting for the reasons given in the judgment [53]. [Re All Saints Ockbrook [2021] ECC Der 1] [Top of section] [Top of post]

Reordering and alternative uses

Re St. Bartholomew Maresfield [2021] ECC Chi 2 The Petitioners sought permission various works at the Grade I listed church to provide two toilets (one of which was wheelchair accessible) and a kitchen in the south transept and install glazed screens between nave and each transept [1]. The DAC issued a Notification of Advice recommending the works [4]; the CBC was involved from the beginning of the consultation process and made constructive observations which were largely adopted by the parish, omitting certain more adventurous features. It was content to defer to the DAC thereafter [5]. The Victorian Society elected not to become a party opponent but invited the Court to take into account the content of an email written to the parish’s inspecting architect on 4 July 2019; it conceded the principle of the introduction of the facilities into the south transept, but queried the size of the kitchen and the need for two, rather than one, toilet. The Society observed that the partitioning of the north transept would obscure views of the rose window, and accentuate the narrowness of the un-aisled interior. The Chancellor noted “the petitioners have gone as far as they can to meet these comments” [6].

Historic England expressed its appreciation to the parish for making changes to the original proposals to take into account their observations. The “light-touch glazed screen will achieve the necessary separation of space while ‘retaining an appreciation of Scott’s design intentions’” [8]. The Worshipful Chancellor considered the proposals in the light of guidance of the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158, and the burden which lies on the proponents of change to listed buildings. He concluded:

“[11]. …In my assessment, notwithstanding the observations of the Victorian Society, the public benefit from the works will considerably outweigh the harm. I am fortified in this conclusion by the assessment of Historic England that ‘the current proposals achieve an effective balance between the parish’s aspirations and the significance of the building in the least harmful and practical way.

[12]. In deference to the Victorian Society, and adopting the practice commended in Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3, I ask myself whether the proposal could be achieved in a less harmful manner. A smaller kitchen and a single toilet might lessen the harm, but I am satisfied on the evidence, bolstered by the support derived from the other consultees, that scaling down these facilities would compromise both the vision and purpose of the project.

[13]. It follows that a faculty should issue, and I so direct.”

 [Re St. Bartholomew Maresfield [2021] ECC Chi 2] [Top of section] [Top of post].

Re St. Mary Oxted [2021] ECC Swk 1 The judgment concerned an application for an interim faculty for a new church boiler in view of an urgent need to replace the old boiler; a petition for a “full” faculty had been made and was currently subject to advertisement under Part 6 of the Faculty Jurisdiction Rules [1]. Permission is sought to install a new gas boiler in the church. The current boiler has reached the end of its life and is inefficient and unreliable; however, the matter is not covered by List B because it is not a like-for-like replacement [2]. The one matter that has gave the chancellor pause is the application to the proposal of the policy of the Church of England to achieve carbon neutrality by 2030, “a policy which the Petitioners take seriously” [4,5].

Unlike the position in Re St. Mark Mitcham [2020] ECC Swk 5, there was a feasible “green” alternative, namely the installation of two electric boilers in series (which could be powered by “green” electricity (i.e. electricity generated from renewable sources”. There is not a great difference between a gas boiler and electric boilers in terms of the cost of installation, but in terms of the difference in running costs, it is estimated the gas boiler will cost £1,800 per year and the electric boiler will cost £8,000.

The Petitioners observed that the running costs of the electric alternative would appear cost prohibitive against current church income. In terms of meeting the carbon neutral objective, they stated:

“This proposal however could be regarded as a medium-term solution with a life expectancy of approximately 15+ years. The replacement for this system in 2035 will be better able to take advantage of emerging technologies that are likely to mean carbon neutral options will be widely available and affordable at that time” [5].

The Chancellor adopted the same approach as his judgment in Re St. Michael & All Angels Blackheath Park [2020] ECC Swk 1 to the issue of the achievement of carbon neutrality, viz. he would require the matter to be considered by Petitioners but would leave to them the judgment as to how the matter was to be addressed, assisted as appropriate by the advice of the DAC.

He directed that an interim faculty issue in this case, subject to the usual undertaking. If an objection subsequently were to be made to the grant of a “full” faculty he would approach it in the light of the approach in the Blackheath Park case. The works are to be completed to the reasonable satisfaction of the Church’s Inspecting Architect [6]. Nevertheless, he made the important closing remarks:

“[7]. However I do remain concerned. Obviously one does hope that greener solutions will become available over time but, as the Petitioners fairly accept, they would not be looking to replace a boiler that is installed in 2021 until 2035 at the earliest. It would be open to me to refuse to grant a faculty, recognising, of course, that this would not necessarily lead to the adoption of a green solution. It could be argued that an additional cost of £6,200 per year should not be regarded as cost prohibitive.

[8]. It seems to me that that figure should not be viewed in isolation. St Mary’s has to pay each year a substantial sum to the Diocesan family purse. The Diocese would not in practice be very happy if St Mary’s prioritised carbon neutrality over its annual payments to the family purse. I note that, as it happens, at the same PCC meeting that authorised petitioning for a new boiler, the PCC generously authorised the payment of £9,500 to missions and charities. It would be unfortunate if in seeking to achieve carbon neutrality, the parish reduced its support for mission.

As I have explained, it is my view that decisions about carbon neutrality should be taken at parish level and that it is not for Chancellors to seek to impose solutions through the clumsy mechanism of refusing otherwise acceptable proposals. But it does seem that, absent new technology coming to the rescue, the effect of a whole series of decisions like the one in the present case is likely to lead to the 2030 target being missed. I consider that this should be addressed in the guidance given to parishes by the National Church about the achievement of carbon neutrality and how they should address competing priorities in the formulation of their budgets.”

 [Re St. Mary Oxted [2021] ECC Swk 1] [Post] [Top of section] [Top]

Re St. John the Baptist Bentham [2021] ECC Lee 1 The proposals included an extension to the south tower of the church, to include toilets, a plant room and storage; reordering, including glazed porch doors, removal of a kitchenette and a redundant organ, new heating, the carpeting of the nave and replacement of the pews with chairs [1]. There was no party opponent, although there some written objections were expressed during the course of consultation with the amenity societies; the controversial elements were the removal of the pews and the carpeting of the nave [2].

Within the framework of the guidance of the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158, for which the burden which lies on the proponents of change to listed buildings,

“[u]ndoubtedly these proposals will cause harm to the significance of the church as a building of special architectural and historic interest. As to how serious that harm would be, views may differ. With regard to the complete loss of a bank of pews fabricated to the instruction of Shaw but plain in their design and fabrication, that harm will be of some significance but perhaps not as serious as the Victorian Society suggest: less so the introduction of carpet in the nave which will be wholly reversible. The works to the floor tiles in the chancel would not be harmful but positively beneficial [14]”.

“The historic footprint of this church means that the nave is unusually short, and the central aisle barely wide enough for two people to walk side by side. This makes it awkward for a coffin to be borne to the chancel at a funeral or for a married couple to process at a wedding service. The petitioners’ letter of 11 February 2021 includes the following: It is difficult to make provision for anyone in a wheel chair, or a family with a young child in a pram…”

The chancellor commented:

[18]. This case is finely balanced. The absence of a party opponent means there has been no cross-examination of the petitioners and their witnesses which would have happened had there been a hearing…

[19]. Looking at the case in the round, and all the considerations raised (whether expressly addressed in this judgment or not), I am narrowly persuaded that the demanding criteria set out in the Duffield guidance have been discharged. I have particular regard to section 63 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018…

[20]. In order for this church to fulfil its potential as a local centre of worship and mission, its cramped and confined nave needs to become properly usable for both sacred and secular purposes. I am satisfied on the documentation that this cannot sensibly be done while the pews remain in place. The case carefully advanced by the petitioners reaches the threshold of exceptionality that is required where serious harm (if such it be) will result to a Grade II* building.

[21]. As to the carpet, I am generally disinclined to authorise the introduction of carpets as they can create a domestic ambience in a building dedicated to the glory of God. In this instance, I can see that creating a uniform homogenous flooring where currently it is patchy and ad hoc would be beneficial. I give particular weight to the recommendation of the DAC in this regard, notwithstanding its general – and understandable – hostility to carpeting…

Faculty granted subject to conditions.  [Re St. John the Baptist Bentham [2021] ECC Lee 1] [Top of section] [Top]

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 – February 2021 (I)" in Law & Religion UK, 2 March 2021, https://lawandreligionuk.com/2021/03/02/ereview-of-the-ecclesiastical-court-judgments-during-february-2021-i-ii/

 

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