Ecclesiastical court judgments – November (I)

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

Sixteen consistory court judgments were circulated in November, and the fiveConsistory Court featured in this first part of the round-up relate to Reordering, extensions & other building works and Fonts. This summary also includes CDM Decisions and Safeguarding, Privy Council Business,  and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

The second part will review the remaining eleven judgments which concern Exhumation and Churchyards and burials.


Reordering, extensions and other building works

Other building works, including re-roofing

Re St. Margaret of Antioch Toxteth [2021] ECC Liv 4 The petitioners sought permission to create toilets (including disabled), a kitchen area and a small vestry and office in the Grade II* listed church, having lost access to such facilities in recent years by the sale of the adjacent vicarage for residential development [1]. The original scheme, as included in the petition, was modified to exclude a particularly controversial aspect – the construction of an external porch with glazed panelling over the main entrance. The Victorian Society, the principal objector, whilst accepting in principle the need for further internal space because of the loss of the adjacent vicarage, also took issue with the internal “pod” structure, and in particular the shape of the reordered vestry [2].

The Chancellor considered the church and its significance in relation to the earlier “essentially uncontested” petition on the removal of pews in Re St. Margaret of Antioch Toxteth [2019] ECC Liv 2. With regard to the instant case, “[t]he question…arises as to where and how the clergy and the church administrators will have their vestry and small office space, and it is a question which has been addressed by the architect who was suggested building out from the Jesus Chapel into the main body of the church. The plans indicate that this will be a small space with two rooms set within a curved pod-like structure which will extend out approximately at its apex to three quarters of the width of the floor between the existing wall within the nave and the edge of the chancel. The plans are detailed and the specification suggests that the works are temporary and reversible” [8].

Applying the guidance in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor came to the conclusion that the harm caused by the construction would be minimal, and not intrusive as suggested by the objectors:

“[15]. …This is a church with a vast interior space where the eye is drawn to the special features, the painted stations of the cross and other internal aspects…

[16]. I cannot accept that a curved wall, as opposed to one which is squared off, is any less in keeping with a traditional Victorian interior, particularly when the structure in which it is created  is relatively low and would not extend to the arches which are supported by the columns. Further, because this is one of the least inspiring or aesthetically pleasing parts of the church (the recently added infilled wall) the impact of any structure is even less obtrusive.”

[17]. Whilst it may appear that I am substituting my own subjective assessment for that of the Victorian Society, and in the event that it is one with which others would disagree, in my judgment the benefit which this vestry/office pod provides is very significant indeed…

[18]. …I do not accept that the objection is justified, and I am prepared to grant a faculty for the design as sought. In my judgment this is on the basis that any harm is minimal and would be no less than alternative design shape that is contended for, and which is clearly justified on the basis of the substantial need for the space.

[19]. However, I acknowledge that despite the temporary nature of the structure, and the fact that it can be removed easily in the future, it seems to me that its fascia should be given further consideration, and that this should not simply be a pod with plain or plastered walls, albeit to match the existing infilled walls between the columns.”

The Chancellor granted a faculty, subject to a condition that, in order to make the curved wall less obtrusive, the architect should consider the feasibility of suitable panelling of a style and colour to match that in place under the adjacent organ pipes. [Re St. Margaret of Antioch Toxteth 2021 ECC Liv 4] [Top of section] [Top of post]

Re St. James the Great Dauntsey [2021] ECC Bri 2 In June 2019 a petition was received from the incumbent who identified that serious breaches of the faculty process had occurred. It had been clear since at least 2018 that several windows in this grade I listed church were in need of repair. After discussion by the PCC, it was proposed by the incumbent that a more comprehensive proposal be made at its meeting on the 18 June 2019 [2]. However, on June 11 2019 the incumbent visited the church to discover that the glass (dating from 1520) from one window had been removed already and the site was being boarded up.

A decision had been made to install external protective glazing to protect the medieval glass. None of this had been made the subject of a proper PCC decision and no petition had been drafted or sent to the Registry, so no advice had been received from the relevant authorities and there had been no scrutiny of this decision by the DAC [3]. A churchwarden, on seeing that one of the medieval stained glass windows was bulging, arranged for its immediate removal and repair, without there being an application for an emergency faculty [4].

On 3rd July 2019 the incumbent, as petitioner, petitioned for the repair and reinstallation of the window unlawfully removed, and the repair of all other windows as necessary. Chancellor Gau noted:

“[6]. …It appears that my irritation at the serious breaches that had occurred had not been passed on either to [the incumbent] or to his erstwhile churchwarden. In short, medieval stained glass from a grade I listed church had been removed without permission and without the possibility of the application being analysed. The possible consequences of this do not need to be set out here, but I am extremely concerned that such behaviour has occurred.

[7]. …Fortunately for the petitioner, the petition disappeared into the ether and it was only towards the end March of this year that that his response was sent to me. It is only this delay that has lead me not to order a full consistory court to investigate what has happened in this case, with the attendant costs.

The Chancellor granted a faculty for the work and also for similar work to be carried out on any other windows identified as being in need of repair [8]. [Re St. James the Great Dauntsey [2021] ECC Bri 2] [Top of section] [Top of post]

Removal and replacement of pews

Re St. John the Baptist Bishop Monkton [2021] ECC Lee 7 The petitioner sought a faculty for the nave pews to be removed and disposed of, and replaced with burgundy-coloured upholstered and metal framed chairs [1]. The petitioners asserted that the removal of the pews would not have any further significant effect on the building’s historic character given that there is already a mix of half-hard wooden pews and half-upholstered seating [4] and removing the pews would “add further functionality and versatility to a church which is trying very hard to be useful in the contemporary world” [5].

The Victorian Society argued that the removal of all the pews would have a significant effect on the buildings historic character and also that, if chairs were introduced, they should not be upholstered [6].  It added that If they are to be justified then more detailed information on what the space would be used for must be included within the Statement of Need, and suggested that an “activities audit” would helpful.

English Heritage considered that, on balance, a case could be made for the removal of the historic pews, but expressed concerns “‘about how the interior would read once cleared…” [7]; the DAC issued a notification of advice which included its principal reasons for approval of the works or proposals despite the objections [8].

On the suitability of the existing chairs, the Chancellor observed:

“[12]. Although the removal of the pews may be justified, and their replacement with chairs, the particular chair proposed – a utilitarian metal-framed chair with burgundy upholstered fabric seat – has caused me considerable concern. Such chairs might be suitable in an office environment, or (at a pinch) in an unlisted church hall, but they are undignified for a sanctified place of worship, even one with multiple ancillary secular uses…

[14]. Whilst the financial argument is tenable – and one that is strengthened by the current financial pressures facing churches generally – it is not determinative. I find myself in respectful disagreement with the DAC’s view that the unsuitability of the proposed chair can be disregarded because there are others of the same design already in the church. “

[15]. I caused enquiries to be made in the Registry regarding the circumstances under which the earlier chairs were introduced. From my reading of extracts of the court files relating to previous faculty proceedings in 2008 and 2014, I could find no express record of a faculty being sought, still less granted, for the introduction of the chairs currently in the church.”

On whether a confirmatory faculty might be issued for the existing chairs, “it seems to be implicit that the petitioners concede that no faculty or other permission was in place at the time of their introduction. The test for the consistory court to apply when an application is made to regularise works which have already taken place is whether one would have been granted had it been sought prospectively” [18]. For the reasons given in [21], the Chancellor concluded that “in the circumstances, it is not appropriate for a confirmatory faculty to issue in respect of the existing chairs” [22].

“[23]. Returning to the Duffield framework, whilst the balancing exercise resolves in favour of the petitioners on the question of the removal of the pews, it does not necessarily follow that the design of a replacement chair should replicate that of the existing chairs of questionable legality.

Notwithstanding that the proposed chairs are identical to others already in situ in the nave, this Court should not be bounced into making a wrong decision because of an error in the past, which effectively deprived the Victorian Society and others of the right of consultation which is essential to the fair operation of the faculty jurisdiction.”

The dilemma faced by the petitioners, the PCC (and church users more generally) was outlined by the Chancellor:

[29]. On a strict reading of [Rule 8.2(1) of the Faculty Jurisdiction Rules 2015 (as amended)] since the petition has been determined by the court today, the [Archdeacon’s Licence for Temporary Minor Reordering (as in [28])] ceases to be authorised with immediate effect, notwithstanding that there is time still to run on the current licence.

In the event that the parish does not wish to accept the conditional faculty authorised by this judgment, then the pews which are the subject matter of the licence are to be returned to the church and the archdeacon must take steps to ensure that the position is restored to that which existed before the scheme was implemented, as he is required to do under rule 8.3(3) of the Rules.”

The Chancellor concluded:

“[30]. It follows that a faculty may pass the seal for the removal of the pews on condition that: (i) All the replacement chairs are of a timber construction and un-upholstered and of a design approved in writing by the Chancellor prior to their introduction; (ii) That the current upholstered chairs are to be removed from regular use in the church within two years.

If such a conditional faculty is unacceptable to the parish, then this petition will stand dismissed. I will allow six weeks for the PCC to make its choice.”

[Re St. John the Baptist Bishop Monkton [2021] ECC Lee 7] [Top of section] [Top of post]

Re Christ Church Gosport [2021] ECC Por 1

In January 2020, a Scheme for Pastoral Reorganisation was made, and Strategic Development Funding has been secured for renovation works which are intended to encourage growth in weekly attendance and mission. As part of the scheme, a new worshipping community is to be planted at Christ Church to run alongside the existing services [1]. The church is unlisted but is set within the Stoke Road Conservation Area in Gosport [3].

The Team Rector and Churchwardens, on behalf of the PCC, sought a faculty permitting a range of works designed to provide a more flexible and welcoming space for worship and community use. The proposed works include: lighting and heating; carpet tiles in the nave; replacement of most of the pews with tubular steel upholstered stacking chairs; redecoration; audio-visuals; and a welcome desk and servery [7].

As the church is not a listed building, the court was not required to adopt the same structured approach which applies to alterations affecting listed buildings (‘the Duffield framework’); instead the petitioners were required to satisfy the Court, on the balance of probabilities, that a faculty should issue for the particular works proposed. Particular issues were considered in [16] to [34].

With regard to the heating, the DAC had raised some concerns and in its notification of advice recommended that the specification be reviewed with the inspecting architect in the light of the Church of England’s policy on achieving carbon neutrality [16]. The parish subsequently indicated that it intended to reflect on the current proposal and that work on the heating system will be put on hold while it considers the implications of carbon neutrality. The Chancellor noted that any consideration of a replacement heating system must have regard to the Church of England’s policy and the wider commitment to securing carbon neutrality;  the recent judgment in Re St. Mary Oxted [2021] ECC Swk was cited.

On the appropriateness of issuing an interim faculty, pending revised proposals, the Chancellor was satisfied that the matter can be managed appropriately with a condition that any revised scheme be submitted to the DAC and the Chancellor for approval before work commences [17]. With regard to the proposed installation of a warm air curtain over the south door, he agreed with the the DAC recommendation that this should be done under a temporary re-ordering licence, rather than by faculty [18].

The Victorian Society objected to carpet tiles and felt that the existing linoleum should be removed to reveal the original tiles, but the Inspecting Architect observed that the age of the vinyl “means that it may contain asbestos” and the DAC considered that this militated against lifting the linoleum [21]. The Society also objected to the proposed chairs.

The Chancellor commented:

“[23]. Due weight must be given to the Church of England’s guidance, which recognises the value and importance of historic flooring, and the need to ensure appropriate treatment, and is founded on wide experience of different flooring materials. While in general carpeted flooring may not be appropriate in a historic setting, there will be cases where it offers the most suitable solution (for a recent example see Re St. John the Baptist Bentham [2021] ECC Lee 1).

He was satisfied that the proposed works were necessary for the church to achieve its aims and he granted a faculty, subject to conditions [36]. With regard to the heating proposal,

“…the heating specification is to be reviewed and agreed with the inspecting architect in light of the Church of England’s policy on achieving carbon neutrality and of any guidance given by the Diocesan Advisory Committee; any revised proposals are to be submitted to the committee for further consideration and to the Chancellor for final approval before any installation work commences”.

[Re Christ Church Gosport [2021] ECC Por 1] [Top of section] [Top of post]

Heating

See Re Christ Church Gosport supra.


Fonts

Re St. Margaret Stoke Golding [2021] ECC Lei 3 The churchwardens sought a faculty for the relocation of the font from its existing position against the west respond of the arcade to a new position in the south aisle adjacent to the Lady Chapel [1]. Additionally, it was intended that the lower step of the font, which has disintegrated, will not be replaced when the font is moved [2]. The font has had to be temporarily removed to enable flooring works to take place under the authority of a separate Faculty, and the Petitioners wish to use this as an opportunity to relocate the font permanently within the church [3].

The rationale for the move was that the existing position of the font requires the minister to stand in a cramped and restricted space; in addition, the congregation had to turn in their pews to view a baptism (as in most churches); and the proposed new position would allow more space around the font. Objections were raised by former churchwarden on the grounds that a font should be at the west end of the church, near the entrance, and the position next to the Lady Chapel would cause congestion [8]. The CBC also argued that Canon F1 requires the font to be near the entrance at the west end of the church [10].

The Chancellor noted  that In 1992, the House of Bishops had produced a document clarifying its understanding of the proper legal interpretation of Canon F1. She also cited Wandsworth, Re Holy Trinity Wandsworth (2012) 15 Ecc LJ 125, Re Holy Trinity, Eckington, (1999) 5 Ecc LJ 489, and St Nicholas & All Saints, Worcester, [2019] ECC Wor 1. She was satisfied that the petitioners had made a good case for the proposal and she granted a faculty. [Re St. Margaret Stoke Golding [2021] ECC Lei 3] [Top of section] [Top of post]


Privy Council Business

10 November 2021

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: [1] Octagon Church Churchyard, Wisbech, Cambridgeshire; [2]. Part closure of All Saints Churchyard, Lydalls Road, Didcot, Oxfordshire; and [3]. St John the Baptist Churchyard, Marldon, Devon.
  • Burial Act 1853 (Final) Order prohibiting further burials in: St Peter Churchyard, Blackley, Manchester.

CDM Decisions and Safeguarding

  • The Revd CD – November 2021, Decision. The court stated: “{1] …[t]his is a distressing and difficult case involving cross allegations of sexual assault….” It concluded ”[39]. … we find that all four of the allegations relied upon for this charge have been found not proved and as such the Complaint must be dismissed…[40]. The Complaint shall stand dismissed.”

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. This also includes the applications that the commission examined, most recently on Thursday 28 October 2021 when applications were approved, subject to conditions:

  • Cathedral Church of St. Mary and St. Chad, Lichfield: Re-instatement in the retrochoir of a shrine altar to St. Chad. Accompanied by a corona of light and in the Lady Chapel, Gospel Book and Holy Sacrament cases and icon paintings.
  • Cathedral Church of Portsmouth: To loan the Tangier Plate (consisting of six individual pieces of silver: two flagons, two standing patens and two communion cups with covers), and the Marriage certificate of Charles II and Catherine of Braganza, to Portsmouth Museum and Art Gallery from 28 May 2022 to 28 February 2023.
  • Cathedral Church of St Alban: The Cathedral proposes to relocate the Frosterley Marble and its chest tomb base from the south ambulatory to the Memorial Chapel which is located in the north nave aisle. The Memorial Chapel currently houses a Jacobean altar which would in turn be moved into the Chapel of Transfiguration, where there is a temporary altar of no significance or value.
  • Cathedral and Metropolitical Church of St Peter in York:

The next meeting of the CFCE is on Wednesday 15 December 2021.


Visitations

  • Wymondham Benefice Directions from Bishop of Norwich. Issued to the Vicar and Churchwardens of Wymondham arising from the Visitation of the Benefice of Wymondham with Silfield and Spooner Row, and the Commissaries’ Report dated 22 June 2021. (All Saints Day, 2021).

Links to other posts

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

General/Miscellaneous


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 (I)" in Law & Religion UK, 1 December 2021, https://lawandreligionuk.com/2021/12/01/ecclesiastical-court-judgments-november-i/

 

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