Ecclesiastical court judgments – October (I)

Review of ecclesiastical court judgments during October 2021 (1 of 3)

Twenty four consistory court judgments were circulated in October, and the ten featured in this first part of the round-up all relate to Reordering, extensions and other building works. The second part will review judgments which concern Exhumation and Churchyards and burials and the third part will consider Organs, CDM Decisions and Safeguarding, Reports from the Independent Reviewer, and CFCE Determinations, Other reports, Visitations &c, as well as links to other posts relating to ecclesiastical law.


Reordering, extensions and other building works

Other building works, including re-roofing

Re St. Olave York [2021] ECC Yor 4 The petitioners, the wife and two sons of the deceased, sought to introduce into the church of St Olave York a memorial to Dick Reid who died aged 86 on 16 January 2021. The deceased was a carver in wood and stone; he was a man with a significant reputation nationally, and made a substantial contribution to the church of St Olave during his lifetime. The Diocesan Chancellor, HH Canon Peter Collier QC, noted that it is unusual today to allow monuments within a church. The Diocesan Churchyard Memorial Regulations 2018  (as amended August 2019) state:

“[7.2]. An application for a memorial monument or plaque inside a church should demonstrate that the person in whose memory the memorial is being introduced was a person of distinction who made a contribution to the nation, region, county or locality which is, and is likely to continue to be in years to come, of unique exceptional or historic interest. In In Re St Margaret, Earthem [1981] 1 W.L.R. 1129, the Court of Arches held that the word ‘exceptionality’ meant ‘The character of, or outstanding service to church, country or mankind by the person to be commemorated’.”

The Chancellor noted:

“It is generally accepted that consideration is not normally given to petitions for such memorials until at least five years have elapsed after the death, in order to allow sufficient time to pass so that a measured assessment can be made of the impact of the of the deceased’s life and work. It is more likely that such a petition will be allowed if the contribution goes beyond their reputation in the local church in which they are to be commemorated”.

Although in this instance less than a year has passed since the death, the Chancellor was persuaded that not only should he consider the petition at this time but also that he should allow it [8], in view of the support of: the incumbent [9]; the PCC [10]; a  widely-respected church architect [11]; and the DAC [12]. [Re St. Olave York [2021] ECC Yor 4] [Top of section] [Top of Post]

Re All Saints Leigh [2021] ECC Bri 3 The petition contained two proposals: the installation of an ‘Eco Loo’; and the removal of a number of pews. Having read the statement of need, the statement of significance, the grant of planning permission and the response, the responses of the amenity bodies and the change in design, the Chancellor was prepared to allow the installation of the Eco Loo, which passed the seal [2].  However, he declined to grant a faculty for the removal of a number of pews from the Grade II* church, in order to create an area for functions other than services. The amenity societies objected to the removal of the pews – the Victorian Society [7] and [10]; the Ancient Monument Society [8]; Historic England [9]; SPAB [11] – to which the Petitioners responded [13].

Applying Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor determined that the removal and/or rearrangement of the pews would undoubtedly result in harm to the interior, a view on which the majority of the amenity bodies concur, and that the harm would be both serious and irreversible [15]. The justification for undertaking the proposals was “unclear and vague”, and there was little or no evidence in the “woefully inadequate” Statement of Need, that these changes would assist in the public benefit, including pastoral well-being, opportunities for mission and putting the church to viable use.

Accordingly, he refused the petition for the removal of the pews as prayed [16]. [Re All Saints  Leigh [2021] ECC Bri 3] [Top of section] [Top of Post]

Re St. Peter Limpsfield [2021] ECC Swk 7 Prior to the institution of their new rector, the PCC unanimously agreed to petition for a faculty for:

“Demolition of existing single storey link to the current Millennium Room Annexe and the construction of a replacement enlarged link (infill extension, between the main church building and the Millennium room) to provide meeting room facilities (one larger room or two subdivided rooms), an accessible WC cubicle and two further WC cubicles, kitchen facilities and fitted storage units” [1].

The proposals attracted eight objections on behalf of eleven people, “evidently all  loyal and supportive members of the congregation”. None opted to become a party opponent, although hey asked the Chancellor me to take their objections into account in making a decision on the petition [11]. At root their concern is that the proposals do not represent value for money, and felt that matters should have been put on hold until after Covid and “the new Rector had had the opportunity to find her feet”[12]. However, the Chancellor considered that it was for the PCC to decide whether or not to press ahead and it was not for him to second guess it [14].

In the circumstances, Chancellor Petchey granted a faculty as prayed, noting that this does not require the proposed works to be carried out [16]. Prior to commencement, the DAC was required to approve certain aspects of the construction, and the works are to be completed to the reasonable satisfaction of the Church’s Inspecting Architect [23].  [Re St. Peter Limpsfield [2021] ECC Swk 7] [Top of section] [Top of post]

Re Holy Trinity Poulton-le-Sands [2021] ECC Bla 5 The Rector and churchwardens seek permission for the installation of: (1) two matching etched-glass memorial screens (designed by Sarah Galloway) and doors in the north and south archways at the east end of the nave, to be financed by a generous legacy from twin sisters; and (2) a new projector and “smart” glass projector screen which would be transparent when not in use, and opaque when used with the projector. The proposals have the full support of the PCC [1]. Neither of the proposed windows directly references either sister [2]. The existing projector screen is now not fit for purpose; additionally, the proposed glass projector screen will allow the view of east window from the nave to be retained, when it is not in use, for the majority of the service [3]. When a charge is passed through the switchable glass screen, the display becomes transparent, allowing light to pass through it and offer
unobstructed views to the stained-glass window behind [17].

Neither Historic England nor the  local authority’s conservation officer had any comments to make, and the CBC was content to defer to the DAC [6]. Although the Victorian Society originally objected to both the proposed projector and the glass screen, it responded to the subsequent changes express its appreciation for the revisions made to the original documentation. However, the Society reiterated its acceptance of the need for a replacement projector screen, but still entertained concerns about the proposed glass screen [10,11]. The proposals were recommended for approval by the DAC who advised that they were not likely to affect the character of the church as a building of special architectural or historic interest [13]; there were no objections to the proposals in response to the display of the usual public notices [14].

As a Grade II listed building, the faculty application fell to be determined by reference to the series of questions in the leading case of Re St. Alkmund, Duffield [2013] Fam 158 at [87] (as affirmed and clarified by the Arches Court’s later decisions in the cases of Re St. John the Baptist Penshurst [2015] 17 Ecc LJ 393 at [22] and Re St. Peter Shipton Bellinger [2016] Fam 193. Chancellor Hodge also noted that since his judgment (as Chancellor of the Diocese of Oxford) in Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3, a practice has also developed of inquiring whether the same, or similar, benefits could be achieved in a manner less harmful to the heritage value of the particular church building [20].

He noted that the proposed memorial screens contain no direct reference to the twin sisters whose generous legacy will be funding their installation. In any event, as he acknowledged in Re All Saints Hesketh with Becconsall [2020] ECC Bla 1 at [16], the test of exceptionality, which applies to the introduction of a memorial, does not apply where what is sought to be introduced into a church is an object, such as a stained glass window [21].

The Chancellor granted a faculty, being satisfied that the proposals would not cause more than minimal harm to the significance of this church as a building of special architectural or historic interest. [Re Holy Trinity Poulton-le-Sands [2021] ECC Bla 5] [Top of section] [Top of post]

The Holy Rood Shillingstone [2021] ECC Sal 2  The Incumbent and Churchwarden of this parish have petitioned for a confirmatory faculty in relation to works which were undertaken under the authority of an Archdeacon’s Licence for a Temporary Minor Re-ordering granted by the Archdeacon of Sherborne on 11 July 2019. The works comprised the removal of eight pews and two pew frontals from the west end of the nave together with the consequential floor repair and making safe of exposed electrical wiring. It is proposed that the pews and frontals, which have been stored securely until now, shall be disposed of by sale to local purchasers where possible [1].

The DAC recommended the work for approval; the Church Buildings Council and the Society for the Protection of Ancient Buildings had no reservations about the proposals. Suggestions were also made by Historic England and the Victorian society [4]. The Chancellor noted “It is clear that there is some high feeling about the proposals locally. The local consultations have produced letters of objection from 16 individuals of 11 households and letters of support from 10 individuals of 9
households”. None of the bodies consulted or objectors decided to take party status in the proceedings, but the Chancellor took account of their views expressed in determining this Petition [5].

After considering the objections, many of which were ill-founded, [8] to [14], the Chancellor considered the proposals in the light of Re St. Alkmund, Duffield [2013] Fam 158, and concluded that proposed changes would not result in harm to the significance of this church as a building of special architectural or historic interest [16]. She then assessed whether the Petitioners had satisfied the burden of displacing the ordinary presumption in favour of things as they stand, particularly in view of the free space created following an earlier removal of pews [18]. The Chancellor granted a faculty and directed that a faculty shall pass the seal confirming the works done under the Archdeacon’s Licence [23]. [Re The Holy Rood Shillingstone [2021] ECC Sal 2] [Top of section] [Top of post]

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Removal and replacement of pews

Re Berwick St. Michael and All Angels [2021] ECC Chi 7 This judgment concerns a petition for the removal of the existing pews and chairs at St Michael and All Angels, Berwick. Specifically, the petitioners seek faculty for the removal of (a) six pews dating from the 1850s, (b) five pews dating from the 1970s, and (c) a small number of rush-seated chairs dating from the 1930s. The petitioners wish to replace that seating with stackable benches made by Treske.

The existing seating is currently in storage, following temporary removal pursuant to the Chancellor’s directions of 23 February 2021 related to a previous petition Re St. Michael & All Angels Berwick [2019] ECC Chi 3. Although there were no party opponents to this petition, the DAC was unable to recommend the proposal, Historic England did not support it and the Victorian Society opposed it. In addition, the Court received numerous the representations, both for and against this proposal, in part pursuant to the Deputy Chancellor’s directions that sought to ensure that the Court had before it the widest range of relevant input that was reasonably practicable in these circumstances [3]. In the judgment, he sought to distil and cite from what seemed to be the most salient contributions from the extensive representations, and made it clear that while this exercise in distillation and citation is not exhaustive, he considered the contents of those representations in full in this 31-page judgment [4].

Having carefully considered all of the petitioners’ evidence and submissions, both on paper and at the hearing, the Deputy Chancellor’s decision remains that faculty for this petition should not be granted. A pivotal feature of this case was that the petitioners have opted for an “all or nothing” approach to seating, i.e. they consistently maintained that all of the existing seating should be permanently removed. This “all or nothing” aspect was in his judgement the stumbling block for this petition [13,14]. The proposed removal of the seating in its entirety would cause harm to the church’s significance as a place of special architectural and historic interest.

“[105] In conclusion, I repeat the following point made in my draft judgment. I make clear that nothing in this judgment precludes the petitioners from advancing further proposals at a later stage if so advised. I express no views on any such future or hypothetical courses of action; the point I make for now is that this judgment should not be read as a requirement that all of the pews in this church be retained forevermore.

[106]. However, for the reasons I have given above, based on the papers and then revisited and supplemented following the oral hearing, this particular petition for faculty for the permanent removal of all of the pews and chairs from this church is refused.”

[Re Berwick St. Michael & All Angels [2021] ECC Chi 7] [Top of section] [Top of post]

Re Christ Church Worthing [2021] ECC Chi 8 The Chancellor granted a faculty for reordering works to the Grade II* church, including: removal of some pews and pew platforms from the west end of the church; a new suspended floor with wet trench heating; new footings below the new floor, in anticipation of a potential reinstatement of the gallery; introduction of a tea point/servery and storage cupboards; works to plasterwork and glazing; and electrical and drainage works [1].

The proposals had been subject to consultation with detailed correspondence between the DAC, the inspecting architect, Historic England and the Victorian Society [2]. The Chancellor complimented those involved on their constructive engagement their professional input, and for facilitating the consultation process.

“[2]. …It represents the faculty jurisdiction working at its very best, with restrained objections articulated respectfully and accompanied by proposed revisions more likely to be acceptable. The readiness of the parish to meet these concerns wherever possible has taken the heat out of these proceedings. I note in particular that abandoning the relocation of the font lead to the preservation of a representative sample of valued box pews, and that vinyl is no longer pursued as a floor covering.”

The Statement of Significance was “a model of clarity”, and enabled the Chancellor “[to] be swift and economical in the application of the Duffield framework”.

“[5]. The proposals might result in harm the significance of the church as a building of special architectural or historic interest, although it will not be of great significance. The justification for the work is clear and compelling, as the consultees concede. The public benefit would unquestionably outweigh the harm. Indeed even if the level of harm were greater than my assessment, the public benefit would still be strong enough to justify it. There is no obvious alternative which would result in a lesser degree of harm”.

A faculty was granted, subject to conditions [6], although “Nothing in [the] judgment has any bearing upon such future petition as may be brought in relation to the introduction of a gallery or other works in the church, which will be determined on their merits based on the evidence adduced” [8]. [Re Christ Church Worthing [2021] ECC Chi 8] [Top of section] [Top of post]

Re St. Peter Walsall [2021] ECC Lic 4 A petition was submitted for the removal of pews and the pew platforms from the church, to be replaced with chairs featuring upholstered seat and back pads, and to replace the existing heating with 30 wall-mounted radiators together with underfloor pipes all heated by a gas-fired boiler. Noting that there was “a real need for any church to be adequately heated” [14], the Chancellor had concerns ” that the new system was to be based on a gas-fired boiler and that the papers before me did not address expressly either the February 2020 resolution of General Synod committing the Church of England to moving to net-zero carbon emissions by 2030 or the subsequent guidance issued by the Church Buildings Council on ways of moving from fossil-fuel based heating systems” [16]. However, on a site visit, he noted that the Vicar and churchwarden present on that visit were able to give me a detailed albeit oral summary of the investigations which had been undertaken.

In short the matter had been raised with the consultant advising the church on the proposals. His conclusions had been that the physical circumstances of the church and the surrounding churchyard meant that neither a ground-source nor an air pump heating system would be likely to be suitable in the current state of the technology. However, the heating system was such that it would be compatible with a non-fossil-fuel based heat source in the future [17].

“[19]. In the light of that conclusion it has not been necessary for me to analyse the difference of emphasis between the approach adopted by Petchey Ch in St Mark, Mitcham [2020] Ecc Swk 5 and St Mary, Oxted [2021] Ecc Swk 1 and that of Humphries Ch in St Thomas & St Luke, Dudley [2021] Ecc Wor 2. In short that is because I am satisfied both that the issue has been properly considered at the parish level and also that, albeit on limited material, there are proper grounds for concluding that the proposed system is the best option in the current state of the technology if the church is to be adequately heated.

[20]. I do, however, follow Humphries Ch to the extent of imposing conditions similar but not identical to those imposed by her in St Thomas & St Luke, Dudley. It will be a condition of the grant of the faculty in respect of the new heating system that the Petitioners use their best endeavours to ensure both (a) that so far as practicable gas supplied under a green tariff shall be used and (b) that so far as practicable carbon emissions caused by any non-renewable gas used are off-set. The purpose of those conditions is to seek to minimise the adverse effects of the use of a gas-fired boiler.

In respect of the removal of pews, four pews were to be retained and repositioned against the north and south walls; the increase in the area of wooden flooring to cover the current extent of the north and south aisles; and the provision that all the chairs would be covered in ‘Espresso’ upholstery, a dark brown to match the woodwork in the church [Re St. Peter Walsall [2021] ECC Lic 4]

Re St. Mary Great Sankey [2021] ECC Liv 3 The petitioners sought to “replace 75…existing wooden upholstered chairs [introduced as part of a 2008 reordering] with 75 lightweight metal upholstered chairs” [1]. There was no formal opposition to the petition, but following the Chancellor’s earlier direction, notice was given to the Church Buildings Council because of the nature of the proposal. The Council has voiced objection, but do not wish to become a parties opponent.

The present chairs are timber framed without arms but with a bright red upholstery to the seat and to the back panel. There are no pews within the nave but several rows in the gallery. It was said that the chairs, which are still serviceable and in good condition, are somewhat heavy for the ageing congregation to move and stack, as is required for the multiple uses to which the church is put within the community, congregational and missional events [5].

The CBC did not object to the removal of the chairs, albeit advocating sensible disposal principally for environmental reasons. However, as might be expected, the concerns are focussed on the choice of replacement chairs, [“the increasingly popular SB2M”] “doubtless because of its owns guidance” [5]. It stated, briefly, “[t]he upholstery will have a significant visual impact on the church and their guaranteed lifespan is very short” [7].

Applying the guidance in Re St. Alkmund, Duffield [2013] Fam 158, and, in the case of an answer in the negative to Q1, Peek v Trower [1881] 7PD 21 26-8, and the review of the case law by Chancellor Bussell QC in In re St Mary’s White Waltham (no2) [2010] PTSR 1689 at para 11, HH Judge Graham Wood QC commented that whilst he understood the rationale behind the CBC guidance on seating, which is of particular importance whenever pews are to be removed, in the instant case, “an assessment has to be made on the basis of the impact of any new seating by reference to that which is already in place” [9].

“[10]. Thus what is being proposed on this faculty application is a minimal change in the overall appearance, notwithstanding the stainless steel framework…Although this is not a like for like replacement, it is relatively close, notwithstanding the stainless steel framework, which I acknowledge many would find to be unattractive.

Accordingly, in respect of the first of the Duffield questions, in my judgment the answer is that the alteration would not cause any harm to the significance of this listed church interior, despite it otherwise being a building of historic and architectural interest. The objection of the CBC is somewhat formulaic, lacking in substance, and simply adherence to its own guidance

[11]. It is therefore unnecessary to consider the further questions save to acknowledge that the preserving of the status quo, maintaining the existing seating, is easily rebutted, with the provision of seating which clearly satisfies a need, on the demonstration of the benefit of having flexible and reasonably durable seating for the years ahead, which the congregation can handle for the multi-use management of the church.

[12]. The approval of this faculty application should not be taken as an acquiescence in the widespread use of the SB2M chair in listed building interiors; as I have indicated above in a number of instances they are likely to be inappropriate, notwithstanding any perceived benefit from stackability and cheap cost. However for this particular church it represents a minimal change with no impact.”

Faculty granted. [Re St. Mary Great Sankey [2021] ECC Liv 3] [Top of section] [Top of post]

Re St. John Clayton [2021] ECC Lee 5 The petitioners sought permission for the reordering of a number of items [2 (i) to (vii)] of which the removal of the choir pews and the relocation of the screen were controversial – the Victorian Society objected to the removal of the front row of choir pews on each side of the chancel [3] to [4]; the Ancient Monuments Society objected likewise and also to the moving of the chancel screen to the west end of the church. It also had reservations about the ramp leading up to the dais [5]; the Twentieth Century Society expressed concerns about the proposal to remove the chancel screen [6]. The DAC issued a Notification of Advice recommending the proposed works, notwithstanding the views expressed by statutory consultees [7].

Applying the guidance in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor stated that “[u]ndoubtedly these proposals, if implemented, would result in harm to the significance of this church as a building of special architectural or historic interest” [13], although contrary to the views of the Victorian Society, considered that the likely harm in this instance would be properly described as moderate [14]. The petitioners’ justification for these works was cogent, persuasive and soundly based on clear and compelling evidence [15], and in conducting the balancing exercise,

“[t]he petitioners have helpfully provided [the Chancellor] with evidence of the Resourcing Churches initiative which was a successful bid under the Church of England Strategic Development Fund initiative. The church of St Johns Clayton is to be a Resourcing Church in South West Bradford, assisting others in the area and becoming a beacon. The incumbent now has responsibility for St John’s and two other churches in adjacent parishes.”

He granted a faculty, subject to a condition inter alia that the frontals of the choir stalls should be relocated after the front rows of stalls on either side had been removed. [Re St. John Clayton [2021] ECC Lee 5] [Top of section] [Top of post].

Heating

See Re St. Peter Walsall supra. 

[Top of section] [Top of post]


Cite this article as: David Pocklington, "Ecclesiastical court judgments – October (I)" in Law & Religion UK, 2 November 2021, https://lawandreligionuk.com/2021/11/02/ecclesiastical-court-judgments-october-i/

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