Ecclesiastical Court Judgments – April (I)

Review of the ecclesiastical court judgments during April 2021 (1 of 3)

Seventeen consistory court judgments were circulated in April, and the seven featured in this first part of the round-up all relate to Reordering, extensions and other building works. The second part reviews six judgments which concern Exhumation, and the third part looks at Churchyards and burialsCDM Decisions and SafeguardingReports from the Independent ReviewerPrivy Council Business,  and CFCE Determinations, as well as links to other posts

Reordering, extensions and other building works

In February 2020, the Church of England made a commitment to a “Net Zero by 2030” target for its greenhouse gas emissions; a substantial contribution to the Church’s energy use, and hence its GHG emissions, is made by space heating, and this was a components in some of the schemes which were considered in the following judgments. These aspects will be collated and published in a post “Net zero”, church heating, and the consistory courts [working title] later in the year.

Substantial reordering

Re Christ Church Fulwood [2021] ECC She 1 The incumbent and church wardens of Christ Church Fulwood sought permission to undertake extensive works of internal re-ordering in the church building. The works under consideration by this petition form part of an extensive programme of alteration and development proposed by the parish for the buildings. The Chancellor previously considered other proposals under the scheme and have delivered two earlier judgments in respect of this church and the programme which should be read in conjunction with this judgment [1]. Re Christ Church Fulwood [2017] ECC She 6 and Re Christ Church Fulwood [2018] ECC She 4 .

The present proposals have been the subject of further extensive consultation with the relevant amenity societies: the Victorian Society; the 20th Century Society; Historic England; and the Church Building Council [2]. The Chancellor noted that these works constitute a more or less substantial overhaul of the reordering plans in response to the judgment handed down in 2018 when she refused to approve that element of the then plans which sought to dismantle key features of the Chancel which she considered should remain. Many elements of the reordering proposed now have already been permitted by previous decisions (including the removal of pews). The Petitioners have worked closely with the DAC and the amenity societies to bring forward proposals which comply with both the letter and the underlying principles of the 2018 decision. [4]

The Victorian Society did not agree with the proposal to remove the 19th century pulpit and lectern and would prefer if some pews were retained. This has been their consistent position throughout the development of these plans. Historic England queried the curved shape of the raised dais and questioned whether an alternative (presumably more square or angled) might be chosen [6]. The Chancellor was satisfied that an insistence upon the retention of the pulpit and lectern within the reordered church would run contrary to the overarching scheme of the new proposals and permitted their removal as sought by the petition [7].  In all the circumstances she proposed to grant the petition as sought [9]. [Re Christ Church Fulwood [2021] ECC She 1]  [Top of section] [Top]

Re St. John the Evangelist Donisthorpe [2021] ECC Lei 1 The Team Rector and Churchwardens sought a faculty for substantial internal reordering, to create a major transformation of the church’s interior, in order to further its mission and community use [4]. All in all there are 25 itemised elements of the proposed reordering, many of them of further broken down in detail [5]. Almost half of the 40-page judgment deals with the proposal to remove the existing pews and replace them with wooden chairs with padded seats [17] to [45].

Other major items considered in detail are: removal of the pulpit, [46] to [51], removal and disposal of lectern, [52] to [57]; replacement of the pipe organ with an electronic organ, [58] to [65]; and the re-siting of the font, [66] to [70]. However, among the other aspects of re-ordering, [71] to [86], is the installation of a new heating system based on an oil-fired boiler. This is of particular significance since it is compromises the Church of England’s target of “net zero carbon emissions by 2030”, and issue explored further in “Net zero” in 2030 – a courageous decision?.

The Chancellor concluded:

“[96]. I am satisfied that this is a case where the mismatch between the existing layout and furnishings of the church and the requirements of the community it serves is extreme. If I were to leave matters as they stand, or permit only limited changes, I would be preventing the parish from developing its mission in expanding the congregation and reaching out to its local community…To grant permission is therefore to give the church an opportunity to move forward in an environment both well suited to the location of the church and attractive across the whole spectrum of the community.

[97]. Accordingly the proposals set out in the petition and accompanying plans and notes, as recommended by the DAC…shall be permitted in full, subject to conditions, most of which I have already indicated.”

 [Re St. John the Evangelist Donisthorpe [2021] ECC Lei 1] [Top of section] [Top of post]

Other building works, including re-roofing

Re St. Peter Titchfield [2021] ECC Por 2  The PCC and Lord Montagu of Beaulieu seek permission to re-establish robustly secure and permanent access to the Wriothesley/Southampton vault [2],[3] for the purposes of substantiating the condition of the sub-structures, monitoring them over time, and carrying out any subsequent repair work and conservation measures [5]. The vault was formerly accessible from the Chapel and there was an external entrance from the churchyard. However, the internal access was sealed up in or about 1951 and the external entrance was bricked-up at the end of the 19th century [4].

The petition is supported by extensive historical, architectural, legal and conservation research material from leading consultants setting out the need for investigation of the vault in the manner proposed. The project has been driven by the commitment of Lord Montagu to continuing his family’s tradition of care for the church and of the monument and vault. It has been undertaken under the auspices of the Southampton Monument and Vault Initiative (‘SMVI’), now incorporated in the Shakespeare Southampton Legacy Trust, which has developed a phased programme detailed in paragraph [6].

The present petition represents an essential step in the process of ascertaining and recording the condition of the vault and the supporting structures of the monument to inform their future conservation and care. It is the result of several years of study of and reflection on the appropriate means of investigation [7].  There are three principal elements to the project [8]:

(1) Establishing permanent access to the Wriothesley vault through the original access point on the chapel floor. This will involve lifting the current stone slabs and replacing with a reinforced and securable access panel.
(2) Lifting a different stone slab in the area of the Wriothesley monument to investigate the chapel sub-structure and top of the Wriothesley vault, and re-instating this stone slab.
(3) Investigating the blocked exterior entrance to the vault to determine the structural integrity of the immediate area.

The petitioners made it clear that the proposal for access to the vault itself does not at this stage envisage or involve any risk of disturbance to human remains [10]. The DAC recommended the proposed works for approval and Historic England; the SPAB and the Victorian Society have each confirmed that they have no objection [11]. The Church Buildings Council is opposed to any steps which might disturb human remains and does not support the need for access to the vault to check the condition of the contents. However, the CBC accepts the need to investigate the sub-floor of the chapel in which the vault is housed and to investigate the original external entrance (items 2 & 3 above), but does not consider that sufficient justification has been shown for establishing permanent access to the vault or for internal structural investigation.[12]. The Chancellor summarized the position:

[13]. Having considered the evidence and representations I concluded that the proposed investigations should be permitted and I directed that a faculty be issued for that purpose, subject to a number of conditions…This judgment is now provided as a matter of record, to set out the background to the petition and the reasons for my decision more fully.

These reasons are given in paragraphs [14] to [79].  [Re St. Peter Titchfield [2021] ECC Por 2] [Top of section][Top of post]

Re St. John the Evangelist Bourne End [2021] ECC StA 2 The petitioners wished to separate the altar from the reredos, modify it, so that it would be free-standing, and move it away from the east end, to enable the priest to celebrate facing west; to relocate the reredos to the link between the church and the church hall; and to renovate an old table to become a credence table. The Victorian Society objected to the separation of the reredos and altar and proposed re-siting of the reredos. The Church Buildings Council objected to the reredos being placed to the link to the hall.

The Chancellor considered that there was a good case for moving the altar to allow west-facing celebration [by the priest], and also safety benefits for the restricted space in the east end of this small church; also  the scheme would allow the retention, rather than disposal, of the reredos. There would also be the benefit of exposing the original stained glass window hidden by the reredos. The Chancellor therefore granted a faculty. [Re St. John the Evangelist Bourne End [2021] ECC StA 2] [Top of section][Top of post]

Re St. Thomas Ashton-in-Makerfield [2020] ECC Liv 1 Proposals for reordering included: replacement flooring;  replacement heating scheme and underfloor heating; replacement of nave pews with chairs; removal of the side chapel platform and communion rail; construction of a dais or platform with a removable communion rail; removal of the pulpit and the choir stalls;  provision of a ramped access to the chancel and the vestry; replacement of the audio-visual installation.

The internal space heating is presently provided by an old gas-fired boiler with pipework and cast-iron radiators which currently are positioned in and around the internal fittings and fixtures [7]. The replacement heating scheme comprised a new boiler plant and underfloor heating [9.7]. With regard to the heating:

“The heating system is somewhat antiquated and expensive to run, and in a re-ordering which involves the removal of floor surfaces there is an opportunity to install modern underfloor heating which is efficient and less costly [10],

However, the judgment was handed down prior to the General Synod “Net Zero” motion.

There were several objections, principally to the removal of the pulpit and choir stalls in the chancel. The Chancellor was satisfied that the petitioners have provided compelling evidence of need to justify the grant of a faculty for the major reordering. [Re St. Thomas Ashton-in-Makerfield [2020] ECC Liv 1] [Top of section] [Top of post].

Re St. Luke Southport [2020] ECC Liv 2  The petitioners sought a faculty for the installation of glazed timber screening to the south side transept chapel and a new heating system, as well as a confirmatory faculty for the installation of a Frank Bodley reredos above the altar which had been donated from a redundant church in Liverpool. [1]. The Chancellor noted:

“It is clear…that this very large space would be expensive to heat, and a small congregation easily lost within the nave. The south transept, which is the area currently used as a small chapel, has an attractive stained glass full length window”. [3].

“Presently the congregation meets in the church hall because of the difficulties of heating the internal space within the church building, with the old heating system which relies on the blowing of hot air, and which has to be turned on at least a day in advance of any service…The hope is that the creation of this new enclosed chapel area will encourage more to attend (although of course it will be self-limiting if a maximum of 50 can be seated) but will also provide the opportunity for children’s groups…”. [5].

The Chancellor granted a faculty. He was satisfied that the screening of the chapel, whilst constituting some modest harm to the building, would not cause a significant impact, and the work would be reversible in the future, if the need arose. Also, any harm would be outweighed by the benefit of having a useful small worship or meeting space which was economic to heat. The Victorian Society objection expressed concerns that there was limited information about alternative schemes which the parish could utilise to deal with the creation of a combined chapel and community space [9], and the DAC;s concerns regarding issues on the means of escape with the positioning of the ramp, and compliance with the building regulations were resolved. [10].

Applying Re St. Alkmund, Duffield [2013] Fam 158 the Chancellor was satisfied that the screening of the chapel, whilst constituting some modest harm to the building, would not cause a significant impact, and the work would be reversible in the future, if the need arose. Also, any harm would be outweighed by the benefit of having a useful small worship or meeting space which was economic to heat. A faculty was granted.

[The options for the replacement for the heating did not appear to be a major consideration, either with regard to the technical justification or the implications vis-à-vis the CofE “Net Zero” target. Nevertheless, it is intuitively obvious that appreciable saving will be made using the proposed approach to space heating, and this clearly has the potential for broader application elsewhere in the Church of England]. [Re St. Luke Southport [2020] ECC Liv 2] [Top of section] [Top of post].

Re West Malling Abbey [2021] ECC Roc 1 The petition related to replacement lighting, the introduction of cable housing at high level, redecoration and investigations into the clerestory glazing of the 1960s Grade II* church [1]. Historic England [4], The Twentieth Century Society [5], [6], and the Diocesan Advisory Committee [7], [8], had reservations about replacing the original lighting globes in the sanctuary.

Applying the Duffield framework, Applying the Duffield framework, the Chancellor concluded that undoubtedly there would be harm to the significance of the church building were the lighting globes to be removed from the sanctuary:

“[17]. …There is, in the proposal, nothing to show that the changes would improve outreach or mission, nor is such sought to be argued by the petitioners. Indeed, for a variety of reasons it is difficult to see how it could be. Likewise, it cannot be argued that the proposal would involve easier access or greater liturgical freedom. All that can be said is that the removal of the globes might remove a distraction. The present distraction, which must have been in place for some time, is not quantified or particularised, and I have to say that I struggle with the concept that the non-removal of the glass globe light fittings will or should be allowed to distract from the “activity/drama of prayer and celebration.

[20]. ]Accordingly, weighing the justification for the works against the likely harm, the petitioners have not discharged the burden on them.

[21]. In the premises, I direct that a faculty issue for the works sought in the petition save for those relating to the lighting in the sanctuary, where the original light fittings and globes must remain unaltered in situ.

[Note: The judgment is principally concerned with the aesthetics of the globes around the existing lights. However, the Statement of Need includes a reference to “a desire [of the petitioners, Abbess Anne Clarke OSB and Mr Roger Molyneux, authorised to act on behalf of the Community] to reduce the use of energy to illuminate and heat the building”.]

[Re West Malling Abbey [2021] ECC Roc 1] [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 – April (I)" in Law & Religion UK, 29 April 2021,


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  1. Pingback: “Net zero”, church heating, and the consistory courts – I | Law & Religion UK

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