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

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

Organs

Re St. Dunstan Edge Hill [2021] ECC Liv 2 

The Petitioners sought permission for the removal and sale of a “magnificent Henry Willis pipe organ” that had been installed in the church since the building was constructed over 120 years ago, v infra. They wished like to sell the organ, which is in a deteriorating condition of repair and has not been played since 1985, to an interested buyer – the Bethany Presbyterian Church, Rochester, New York State, who would restore it, without modification from its original design, and use it for performances and worship. The funds raised by the sale would secure the future of St Dunstan’s for many years [1]. The Chancellor, the Worshipful Graham Wood QC, explained:

“[2]. The responsibility of this court exercising the faculty jurisdiction…is to ensure that the PCC is not profiteering by removing a heritage asset which is of substantial interest not only from an historic, aesthetic or architectural point of view, but also as a splendid example of a rare musical instrument which is deserving of preservation and enhancement, if at all possible, in the location in which it was intended to remain for as long as the building was standing.”

The petition was not formally opposed by parties opponent; however, as a result of consultation and statutory notification to various heritage bodies, a number of issues were raised: the British Institute of Organ Studies (BIOS) raised objections to the removal, contending that it would be far more efficacious and sensible to keep it in situ and to raise funds for its restoration; Historic England (HE) did not support the proposal, and identified a number of potential sources of grant aid funding for repair [3]. The Churches Buildings Council (CBC) did not object and provided some observations which are referred to in [4].

The Chancellor explained that the organ had not been installed immediately after the construction of the church building, but several years later, and was fitted into the space intended for an organ. However, this was not purpose-built as such, and “it is said that the fit is far from perfect, although there is no doubt that this magnificent instrument is a prominent focal point within the church”. The pipework and mechanism is standard Willis design, and the lower casing is constructed from Honduran mahogany [6].

The Chancellor noted that the correct test to be applied whenever a change is planned to the interior of a listed church building, including alterations to the fixed or movable furnishings, was the approach of the Arches Court in Re St. Alkmund, Duffield [2013] Fam 158 . He had no difficulty in coming to the conclusion that the removal of this organ would result in harm to the significance of the building in terms of its historical and architectural interest [25; the  harm would be:

“[25]. … more than modest and relatively serious in the sense that it amounts to a substantial alteration in terms of the visual aspect and the tradition which has been associated with this church building. While the value of this heritage asset is intrinsic in the sense that it lies within the instrument itself, it is relevant in assessing the seriousness that what is being proposed in terms of alteration is actually the preservation and restoration of the organ rather than its removal and disposal. In a sense it is the opening up of the space left behind which creates the harm, because one of the purposes of this application is to ensure that the Henry Willis organ is not lost to future generations, even if they may not be within the United Kingdom”.

[27]. Applying the fourth and the fifth of the Duffield questions…equally I have no difficulty in concluding that the benefit of the “alteration” and the removal of the organ from St Dunstan’s to allow it to be installed in a church overseas is substantial, and far outweighs the harm created by the fact that this will now be a church without a pipe organ…”

[29]. …This fine church building cannot be maintained without funds, and the present PCC and congregation is close to impecunious. The injection of a substantial sum of money* for ongoing maintenance and improvement of the fabric represents a very great benefit indeed. Although the nature of the works to the organ loft for the present is unclear, and will have to be the subject of a separate application, they are relatively modest and unlikely to involve substantial expenditure.”

* An offer was made in the sum of £100,000 with all costs of removal being borne by the purchaser [8].

The Chancellor granted a faculty, subject to conditions [30], [32]; these included a requirement that the petitioners undertake to petition for a faculty in relation to refurbishment works of the organ space, once the organ is removed, and in any event within 12 months of the date of this faculty grant. The return of the Choir Organ’s Corno di Bassetto currently on temporary loan to St Anne’s Aigburth, is subject to the conditions of an earlier faculty in 2008. [Re St. Dunstan Edge Hill [2021] ECC Liv 2] [Top of section] [Top of post]

Privy Council Business

There were no Privy Council meetings in September 2021.

CDM Decisions and Safeguarding

• The Revd Anthony Giles – October 2021, Penalty. Prohibited from ministry for six months from date of Tribunal after pleading guilty to unprofessional conduct with a vulnerable woman.

CFCE Determinations

The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. The  applications the Commission examined on  9 September 2021 are summarized below. The next meeting of the CFCE is scheduled for 28 October 2021.

• Cathedral of the Holy and Undivided Trinity, Bristol: A major programme of refurbishment to the Bristol Cathedral organ case and Walker instrument. Proposals were approved, with the exception of the addition of 32’ extension to the Pedal Trombone; The reason for the refusal was that the size of the extension would present a substantial engineering challenge.
• Cathedral Church of the Holy Trinity, Chichester; To revise the setting of the cathedral font to address health and safety issues and to improve accessibility and liturgical function. The Cathedral font sits on a single step plinth which has been a trip hazard to the visiting public. Throughout much of its life the font has been roped off or had access otherwise impaired. It also functions imperfectly as a liturgical feature during baptisms due to the step plinth. The proposal is to remove the plinth and lower the font to floor level. A visual ‘echo’ of the removed plinth will be created around the font set flush with the surrounding floor.
• Cathedral Church of the Holy Trinity, Chichester: A new Cathedral lighting scheme to replace the outdated existing internal lighting, which is at the end of its serviceable life, with new, low-energy lighting.  The Chair determined to defer the element of the application relating to the spotlighting of artworks pending receipt of a report from an independent conservator on the potential impact of this on all the artworks in question (i.e. the Piper Tapestry, Noli Me Tangere painting, The Baptism of Christ by Hans Feibusch, and the Lambert Barnard Panel paintings and any others not specifically mentioned in the application); and otherwise to approve the application subject to conditions.
• Cathedral Church of St Peter in Exeter: A programme of works to clean, conserve and repair the timber painted ceiling in the Chapter House. Permission was sought for the full scheme across all four bays, although the works will likely be undertaken in two phases.
• Chapter of the Cathedral Church of St Peter in Exeter: Retrospective approval for the repair works to Monuments 115 (James Bell) and 116 (Richard Hereford), carried out due to the significant Health & Safety risk posed by the deterioration in their condition.
• Cathedral Church of St Peter in Exeter: Phase 2 of a programme of works to conserve and protect stained glass. The installation of partial environmental protection to stained glass panels in the Lady Chapel and medieval fragments in Oldham’s Passage and a full scheme of environmental
  protective glazing to the Peckitt windows of the Pearson Cloister Building together with the restoration of associated leaded lights.
• Cathedral Church of Christ, Blessed Mary the Virgin and St Cuthbert of Durham: Rebuilding of the collapsed boundary wall at St Mary the Less Church in accordance with the Structural Engineers Proposal.
• Cathedral Church of Christ in Liverpool: To install two glass panels in the archway into the Lady Chapel ante chapel, in association with the general refurbishment of the space.
• Cathedral Church of The Holy and Undivided Trinity, Norwich: To install a wooden crucifix in the first bay of the south east corner of the east Cloister Walk. The crucifix would be hung utilising fixings drilled into mortar joints.
• Cathedral and Metropolitical Church of St Peter in York: To place a statue of Her Majesty Queen Elizabeth II on the West Front of the Minster.
• Cathedral Church of Christ, Canterbury: Repair of existing drainage connections and creation of additional connections at Marlowe House.

Other reports, Visitations &c

• Further to the Torrance Report (11 September 2021), a Mediation Steering Group has been established for Diocese of Aberdeen & Orkney to help the diocese move forward from its current difficulties. The Synod voted to meet in private and then unanimously agreed to set up such a process and appointed a Mediation Steering Group to oversee the process.

Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

General/Miscellaneous

• Navigating the faculty system – CofE environment programme webinar, (1 October 2021).
• CCTV use by churches, (18 October 2021).

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