Review of the ecclesiastical court judgments during January 2022 (I)

Seventeen consistory court judgments were circulated in January 2022, and the nine featured in this first part of the round-up all relate to Procedural issues and Reordering, extensions & other building works. The second part will review the remaining eight judgments which concern Exhumation, Churchyards and burials and bells, as well as links to other posts relating to ecclesiastical law.

Procedural

Re St. Michael and All Angels Berwick [2021] ECC Chi 9 The Chancellor had issued a stay of proceedings, pending the outcome of a determination by the Dean of Arches of an appeal against a decision of the Deputy Chancellor. An application was made for the stay to be lifted. The Chancellor observed:

“[6]. The principal reasons for seeking the lifting of the stay are that the proposed works (an extension for lavatory facilities) are discrete and severable from those which were the subject of the petition that the Deputy Chancellor refused (removal of pews). Accordingly, it is submitted that the outcome of the appeal (in the event that permission is granted) will have no bearing on the outcome of the current petition.

[7]. Additionally, it is submitted that the proposed works are uncontroversial (as evidenced by the lack of any objection) and, more particularly, that they would be compromised if delayed until any appeal in the Court of Arches had run its course. I am specifically referred to the formation of an airlock, the better to protect the paintings for which this church is well known; to the probable withdrawal of Lottery funding were the commencement of the works to be put back; and to potential difficulties in rescheduling the contractors. In addition, reference is made to the statutory consideration of the church as a local centre of worship and mission.”

The Chancellor decided that the stay should be lifted and the matter determined via the Online Faculty System. [Re St. Michael & All Angels Berwick [2021] ECC Chi 9] [Top of section] [Top of post]

Re Jesus College Cambridge [2022] ECC Ely 1 The subject matter of the petition was a memorial to Tobias Rustat (d. 1694) in the Chapel of Jesus College, Cambridge. The petitioners (the College) wished to remove the memorial from the Chapel, for conservation and retention elsewhere, as they wished to avoid the risk of people worshipping at the Chapel being offended by the memorial, in view of Rustat’s involvement in the slave trade in the late 17th century. There were many objectors to the proposal. The judgment deals with procedural and evidential issues, including refusing the objectors’ application to adjourn the hearing listed for 2-4 February 2022 in order to obtain the expert evidence of a historian, and refusing the petitioners’ application to call an eighth witness. [Re Jesus College Cambridge [2022] ECC Ely 1] [Post] [Top of section] [Top of post]

Reordering, extensions and other building works

• Reordering and alternative uses
• Other building works, including re-roofing
• Removal and replacement of pews

Reordering and alternative uses

Re St. Mary the Virgin Wheatley [2021] ECC Oxf 8 The petitioners proposed a number of items of reordering:

• an internal re-ordering to include: the disposal of pews and the introduction of chairs; the replacement of heating and lighting systems; alterations to the chancel aisle; the conservation of the tiled chancel floor; the replacement of the floor throughout the nave; the replacement of the
  existing enclosure at the west end of the church and the creation of a kitchenette and WC facilities in this area; the introduction of bespoke timber storage; the installation of a servery and a welcome area at the west end of the church; and the creation of a first floor meeting room within the west tower:
• external alterations, including a ramp to the vestry door and a new single-glazed timber frame door to the south porch; and
• to regularise an earlier interim faculty permission granted on 18 June 2019 for investigations into the floor [1].

The present proposals are the product of extensive discussions with the DAC, consultation with the CBC, Historic England and the Victorian Society, and consequent revisions, over the course of several years [2]. As a result of this facilitative approach, the position was reached where the Victorian Society, as the only party opponent, actively oppose only one specific aspect of the proposed works, namely the treatment of G. E. Street’s plain black and red tiling in the nave of the Grade II* church [2].

The Chancellor was satisfied as to the suitability of the remaining items, and the 30-page judgment is mainly directed at the one contentious item. The petitioners contended that the Victoria tiles needed to be removed to allow the replacement of all the flooring in the nave, in conjunction with the proposed new underfloor heating, in order to achieve a sufficient heat output. Although there are several references to “underfloor heating” in the judgment, there is no reference to the consideration of its impact on the church’s carbon emissions.

On the evidence that is before the court, the Chancellor was not satisfied that the petitioners had adduced a sufficiently clear and convincing case that a stone, rather than a tiled, floor was the only practicable solution to the provision of underfloor heating in the present case [47]. He granted a faculty for all items in the petition, except in respect of the stone floor finish. He directed that as many of the original tiles as possible should be salvaged and re-laid with as many suitable reproduction tiles as may be required. [Re St. Mary the Virgin Wheatley [2021] ECC Oxf 8] [Top of section] [Top of post]

Re St. Mary Bloxham [2021] ECC Oxf 9 The petitioners sought to introduce two “pods” with curved wooden screens connected by a curved step to form a continuous arc across the west end of the church; this is to accommodate toilet and kitchen facilities, all in accordance with designs in this Grade I listed medieval church, which was re-ordered by George Edmund Street between 1864 and 1866 [1]. The nave was assessed as being of “moderate to high significance”; it preserves the footprint of the 12th century (or possibly earlier) nave despite the loss of most of the 12th century fabric beyond that reused in the chancel arch, and the 15th century work. However, “the nave is said to lack coherence on the basis that the compromised Street restoration does not balance the medieval structure as it once did and the authors therefore consider that the nave is not as significant as a complete or sympathetically altered G. E. Street scheme would be” [5].

The instant proposals are the product of extensive discussions between the parish, and their professional advisers, and the DAC and their officers, in consultation with the Church Buildings Council, Historic England, the Society for the Protection of Ancient Buildings (SPAB), and the Victorian Society over the course of several years. Since April 2019 over 50 supporting documents and images have been uploaded to the online faculty system (the OFS) [8].

The DAC did not object to the proposals being approved by the court, subject to conditions which essentially require the proposals for the design of the curved screens, and also detailed plans, elevations and specification of and for the new facilities, to be submitted to, and agreed by, the DAC prior to any works commencing on site [17]. The Chancellor observed:

“[53]. It seems to the petitioners that the Victorian Society have a “wood and trees” problem. They object comprehensively to a scheme that will greatly improve the condition of the Victorian interior for the sake of a slight curve in two reversible screens, which are part of a holistic solution and which do nothing to impact adversely upon the rectilinear character of the massive “block” that is the nave and aisles, or the strong north/south and west/east axes of the building…

“[54] The Victorian Society’s case, on their own admission, boils down to an objection to the fact that the screens are slightly curved rather than straight (or rectilinear).”

“[56]. ln conclusion, the petitioners contend that the slightly curved screens are a small part of [an] holistic solution to making the church more practical for the congregation, and more usable by the community; and they have been designed to enhance the significance of the building and the beauty of the space, as part of an overall scheme which greatly improves the condition of the significant Victorian features of this exceptional church building.

The Chancellor decided to grant a faculty, for two reasons: (1) he was of the opinion that ‘a curved design would be less visually intrusive, and would cause less harm to the significance of this church building, than a rectilinear design’; and (2) whilst both sides could not agree on a matter of aesthetics, and particularly where the Diocesan Advisory Committee has not objected to the proposals, “I consider that considerable, if not decisive weight, should be accorded to the views of the PCC, as the democratically elected body entrusted with the task of making decisions for the parish.” [Re St. Mary Bloxham [2021] ECC Oxf 9] [Top of section] [Top of post]

Other building works, including re-roofing

Re St. Mary the Virgin Charlbury [2021] ECC Oxf 10 In an unopposed online faculty application, the Petitioners sought  permission: to convert the existing kitchen at the east of the north aisle of the church building into a new WC with full disabled access and baby changing facilities, opening up the existing kitchen hatchway so as to provide a new, wide access to the WC directly from the north aisle of the church; and construct a new kitchen pod in the north-east corner of the north aisle using materials that will match the wooden frontage of the access to the existing foyer and kitchen, and with a wide servery opening directly into the north aisle of the church [1]. The parish justification for the proposal is reviewed is summarized in paragraphs [3] to [7].

The DAC considered that the parish’s proposals had been well thought through and that covering the new kitchen pod so as to match the existing wooden screen would reduce its impact on the character of the church. The DAC considered that the parish have responded fully and appropriately to the views of consultees and the advice of the DAC, and following a DAC delegation’s visit, support a subsequent revision [8]. The DAC considered the consultation responses by the amenity bodies [9] to [14], but nevertheless recommended the proposals for approval by the court, subject to certain conditions [15].

In applying the Duffield question, the Chancellor noted:

“[23]. The existing kitchen and the new WC are in a part of the church building which is completely separated by a wooden wall from the rest of the church. Changing its use will have very little effect on the significance of this part of the church building…

“[24]. The north aisle of the church clearly has moderate significance as it is part of the main body of the church. However, the proposed new kitchenette is in a corner of the church which is not really visible to the congregation during services as they face the other way..

“[26]. For the reasons given by the DAC, I am entirely satisfied that the moderate harm to the significance of this Grade I listed church building is clearly outweighed by the benefits that the revised proposals will bring for the future viability, life and mission of the church…

“[28]. On the evidence, and for the reasons set out above, weighing the resulting harm to the church building against the benefits of the proposals, the balance clearly comes down in favour of approving the petitioners’ proposals and granting this petition”

 [Re St. Mary the Virgin Charlbury [2021] ECC Oxf 10] [Top of section] [Top of post]

Re St. George Newcastle [2021] ECC New 3 The petitioners sought an amendment to the judgment in Re St. George Newcastle [2020] ECC New 2, which related to an extension to the north-east corner of the church and works in the churchyard [1, 2]. One  conditions of that judgment was that no work should commence until all necessary funding was in place [4].  Restrictions imposed since the outbreak of the Covid pandemic in 2020 had restricted the ability of the petitioners to engage in fundraising activities.

“[5]. The issue that now arises, with the imminent expiry of the secular planning permission, is that “all proper funding” is not in place leading the petitioners to ask the court to relax that condition. Simultaneously, consideration is being given to submit an application to the local authority for an extension to the planning permission that will expire on 28 February 2022, albeit if they commence the works before that date…an extension may not strictly be required.”

The petitioners therefore requested that the condition concerning funding should be relaxed. Details of the current situation were requested by the Chancellor [10], to which “a member of whole site plan committee member” responded on behalf of the original petitioners and a new church warden [11]. The Chancellor commented:

“[12]. …the court is simply not satisfied that in respect of the main project, from such a low financial base, it would be proper to grant the petitioners the relief they seek; …to lift the condition as to funds being in place before work commences, whilst it cannot be said that this may never be permitted, there must be a balance to be struck in terms of there being a reasonable proportion of the funds available before embarking on the intended work.

It is not persuaded that the device of beginning the work in a very modest way is a proper basis for this court, in effect, to extend the civil permission granted by the planning authority and, particularly in uncertain times, it exposes the petitioners and, more importantly the parish, to exactly the situation against which Duff Ch. [the Chancellor at the time of the earlier judgment] was seeking legislate.”

The Chancellor concluded:

“[19]. The court accepts that circumstances have been wholly unprecedented since the judgment was given in April 2020. For the reasons given:
(i) permission is granted to the petitioners to proceed with the construction of the boundary wall subject to the details being provided to and signed off by the DAC, the condition set out in paragraph 47 of the judgment of Duff Ch. attaching to the faculty being relaxed to that extent;
(ii) permission to relax the same condition in respect of the main project is refused but the time by which the work is to be completed will be extended by a period of three years from today’s date to 29 November 2024.

[Re St. George Newcastle [2021] ECC New 3] [Top of section] [Top of post]

Re Holy Trinity Jesmond [2021] ECC New 4 The proposed works included alterations to the baptistry floor to provide a raised floor, level with the octagonal font plinth, and the covering of the raised floor and plinth with carpet tiles. The Chancellor accepted the advantages of having a uniform floor level in the baptistry and granted a faculty for that item and the associated works, which were the mounting of display boards on the three walls surrounding the font and associated lighting. [Re Holy Trinity Jesmond [2021] ECC New 4] [Top of section] [Top of post]

Re All Saints Rennington [2021] ECC New 2 The petitioners wished to remove and dispose of a ‘redundant altar table’ of varnished pine and said to be ‘of no historic significance’ and ‘of no particular aesthetic or other value’, in order to improve the east end of the north aisle of the church, which was used as a social area, and to introduce a table and cupboards, for the serving of refreshments, and a more practical floor covering [1,2].

In its notification of advice, the DAC recommended its removal for approval by the court, noting: ‘The Committee could not fully determine if the table was an altar but
recommends that consent for its removal is sought from the Bishop’ [7]. The Bishop indicated, by letter, that  he was content that the altar was of no historic significance, may not have actually been consecrated and was happy to give his permission for its disposal [8]. The Chancellor granted a faculty, stating:

“[11]. Assuming that the petitioners have not identified any alternative use to which the church can put it and, further a lack of space to store it pending a use being found, in the first instance it should be offered to other parishes who may be able to put it to good use. If after a period of 12 months from the date of the faculty, no other parish has agreed to take it, I will permit its sale on the open market”.

 [Re All Saints Rennington [2021] ECC New 2] [Top of section] [Top of post]

Removal and replacement of pews

Re All Saints Garsdon [2021] ECC Bri 5 The petitioners applied for an amendment to a Faculty regarding the introduction of upholstered metal chairs to replace seven pews that were removed under Faculty. The CBC, SPAB and the Victorian Society raised objections to the introduction of such chairs on the basis that wooden chairs would be more appropriate to the setting of the Church, and are very difficult to keep clean and stain free particularly during the Covid pandemic [1].

The Chancellor was persuaded that the chairs petitioned for would be appropriate in the particular circumstances of this case, adding:

“[4]. …I am sure that the petitioners will bear in mind the concerns of the amenity bodies and the assurances they have given in their submissions to me over the next few years”.

[Re All Saints Garsdon [2021] ECC Bri 5] [Top of section] [Top of post]

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