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

Fourteen consistory court judgments were circulated in June 2022, and the nine featured in this first part of the round-up relate to Reordering, extensions and other building works, including Other building works, including re-roofing and Removal and replacement of pews.  The second part will review the remaining judgments which concern Heating, Church Treasures/Sale of Paintings/ Loans/ Memorials, Exhumation, and Churchyards and burials. It also includes Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Reordering, extensions and other building works

• Other building works, including re-roofing
• Removal and replacement of pews
• Heating is covered in Part II, and also Re St. Leonard Southoe . 

Other building works, including re-roofing

Re St. Mary the Virgin Ashwell [2022] ECC StA 2 During significant reordering in the church, a brick-built barrel vault (dating to 18th, or 19^th century) was discovered underneath the floor where kitchen and toilet facilities were being installed [1]. The petitioners now wished to mark this discovery by, firstly, having a cross incised on the stone floor above the vault and, secondly, by placing on the adjacent wall a stone tablet recording the discovery of the vault in 2020 [2].

The DAC did not object to the proposals but several members of the Committee considered that it was fundamentally inappropriate to draw attention by means of permanent memorials and fixed information boards to the presence of a vault, as vaults are commonplace in many parish churches. There was also a continuing concern about the proposal to commemorate the unknown people who were buried in the vault when there were countless unknown people buried elsewhere beneath the church for whom there were no memorials [4].

After considering the health and safety issues, and the location of the proposed “deeply incised” cross [8, 9] , the Deputy Chancellor directed that a faculty pass the seal. This would  permit the presence of the vault to be marked with a cross incised in an existing floor slab; however, before any works are undertaken, the consent of the DAC is to be obtained to the precise location, design and size of the cross; and any application to the Committee for that consent is to be accompanied by correspondence from the church’s insurers indicating that they are content with the proposed location, design and size of the cross [10].

With regard to the wall tablet, the Deputy Chancellor cited the judgment of the Arches Court In Re St Margaret’s, Eartham[1981] 1 WLR 1129 which set out five binding statements of principle [13]. He concluded that the subjects of the proposed memorial in this case fail to clear the first hurdle of exceptionality to justify a wall tablet being placed on the adjacent wall in the church to commemorate unknown parishioners interred in the vault [17]. He noted that it was not the role of permanent stone memorials in our churches to provide heritage engagement in the way proposed [18]. He suggested that it would be more appropriate to record the vault in interpretational material, such as displays and literature, as already intended. [Re St. Mary the Virgin Ashwell [2022] ECC StA 2] [Top of section] [Top of post]

Re St. Lawrence Eyam [2022] ECC Der 1 The Petitioners sought to alter the floor levels inside and outside the south porch and adjust the doors, to improve access for those with disabilities; to create a new doorway in the north wall, as a fire escape, and to remove and dispose of the pipe organ from the place where the new fire door would be inserted, with the intention of later installing an electronic organ [1]. The DAC Notification of Advice stated that “[w]hilst content to recommend the works to the south porch and doors and for the creation of the new north door and associated ramps, the Committee did not feel able to recommend disposal of the organ as it feels there are options for its relocation within the church” [2]. Initial reservations expressed by the Victorian Society and Historic England were addressed by changes to the proposed works; there was therefore no opposition to the proposals from the amenity societies or Historic England [4]. There were six letters of objection but none of the objectors wished to become a Party Opponent [5].

Applying the framework in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor concluded “my judgment, it is undoubtedly the case that, taken as a whole, these proposals, if implemented, will result in harm to the significance of St Lawrence, Eyam, a grade II* listed building, as a building of special architectural and historic interest. However “it would be wrong to consider that harm as a whole, but rather the different elements of the works should be considered separate” [20]. Significantly, he stated [emphasis added]:

“[25]. What concerns me is that, because the removal of the organ is put forward as a necessary consequence of the other works, the focus has not been on justifying of the removal of organ in its own right. Additionally, the question of whether the organ should be replaced and, if so, by what manner of instrument is not part of this petition. It is indicated that the intention is to install an electronic instrument, but no faculty is sought for this, even though a temporary faculty was previously obtained for trial of such an instrument”.

“[29] In my judgment, the question as to whether a faculty should be granted to remove the organ must be considered on its own merits and it cannot be the case that its disposal is simply a necessary consequence of the construction of a new fire exit. The test Duffield must still apply. This organ is an item of significance its own right and its removal would, in my judgment, result in serious harm to the historical significance of this church… The justification for removing it is not particularly clear or convincing, based principally on it being in an inconvenient location. Neither is the  public benefit of its removal my judgment, persuasively argue”.

Citing Hodge QC, Ch in Re St. Peter & St. Paul Newport Pagnell [2020] ECC Oxf 8 and Eyre Ch in Re St Nicholas, Warwick (2010) 12 EccLJ 407 at paragraph 19, he noted that “the correct approach to the removal of pipe organs has been much considered by the consistory courts”, and stated:

 “[20]…The presumption in favour of a further pipe organ is more likely to be rebutted by those who can show that the preference for an alternative results from careful and reasoned consideration after detailed and informed research. Those whose preference for an alternative is based on a consideration which does not take proper account of the merits of pipe organs are unlikely to persuade the court that their preference can displace the presumption in favour of replacing a pipe organ with another pipe organ”.

The Chancellor granted a faculty for the works to the porch and the new fire exit door, but he was not satisfied that it was appropriate to authorise the removal of the pipe organ at this stage, as possible relocation of the organ within the church had not been fully explored, nor the alternative of replacing the organ with a smaller pipe organ, and the petition did not request authority for the installation of a particular electronic organ. He concluded:

[36]. if, upon advice, relocation is genuinely found not to be a feasible proposition would, on application, consider varying my order and granting a faculty for the removal and disposal of the organ, but this will be conditional upon it being: (i) replaced by a suitable smaller replacement pipe organ, the suitability to be approved by the Diocesan Organ Advisor; (ii) a new home being found for the existing organ, preferably within the faculty jurisdiction; (iii) the organ only being dismantled once the new home has been found and the replacement instrument identified or ordered; and, (iv) all works being undertaken by an organ builder accredited by the Institute of British Organ Building “.

[Re St. Lawrence Eyam [2022] ECC Der 1] [Top of section] [Top of post].

Re St. Leonard Southoe [2022] ECC Ely 4 The incumbent and churchwardens sought a faculty to permit various items of reordering in order to provide facilities in the church for a wide range of church and community events in what is a fairly isolated village. The proposals included: 2 WCs, a “kitchen pod”; a new staircase and ringing floor; new cupboards; replacement of all the pews with wooden unupholstered chairs; moving of the font; new underfloor heating; new flooring, new internal lighting and installation of 19 solar panels to the south slope of the nave and south aisle roofs; the installation of an Air Source Heat Pump (“ASHP”), and the laying of new services for water and sewage [8(a) to (h)].

The Chancellor commented:

“[9]. As a result of consultation and recommendations from the amenity societies and the DAC, the proposals have gone through various iterations. Leaving to one side the objections put forward by [the local objector], all the proposals now put forward are, with the exception of the kitchen pod, acceptable.”

The local objector claimed that no detailed costings had been carried out, and challenged the assumptions about community use . The amenity societies involved had reservations about the kitchen facilities being enclosed, because of the impact of the walls on the surrounding church fabric [10] to [20].

The Chancellor granted a faculty, to enable the petitioners to move forward with obtaining funding, but he reserved a decision as to whether the kitchen facilities should be enclosed or not until he had visited the church and made a final decision [42]. [Re St. Leonard Southoe [2022] ECC Ely 4] [Top of section] [Top of post].

Re St. Christopher Ellistown [2022] ECC Lei 2 The PCC proposed adding a new porch to this unlisted Victorian church, built in 1896. The porch would include glazed doors to provide easier access, and provide a more welcoming entrance, and to minimise draughts [4]. The PCC amended its original design after comments from the Ancient Monuments Society [6] and the Victorian Society. [7]. Citing Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor noted:

[10]. I consider that the correct approach in this case is “…not simply to concentrate upon the effect of proposed works upon the fabric or appearance of the church in isolation, but to consider the proposals in the context of and taking full account of the role of the church as a local centre of worship and mission”…

[12] The fact remains, though, that the church is unlisted and as such is not to be treated as if it were listed by application of the enhanced considerations directed by the Court of Arches in Duffield and subsequent cases. However this does not mean that I should ignore any potentially adverse impact on the church’s significance and appearance…”

She was satisfied that the benefits of the proposals were of sufficient substance to outweigh any negative impact that there might be on the appearance and significance of the unlisted church. [Re St. Christopher Ellistown [2022] ECC Lei 2] [Top of section] [Top of post].

Removal and replacement of pews

Re St. Leonard Aldrington [2022] ECC Chi 2 The Chancellor granted a faculty for an unopposed petition for reordering works st the Grade II church [1]. The Victorian Society and the Twentieth Century Society raised some concerns during the consultation process which was coordinated by the secretary of the DAC rather than by the parish, “which would have been preferable” [2]. The Victorian Society and the Twentieth Century Society were directed to be formally cited.

There was no response from the Victorian Society; “[i]n the circumstances of this case, the Court is entitled to infer from its silence that it is now content with what is proposed. The plans were re-worked having regard to its remarks made during the consultation stage and the special citation related to this fresh iteration”. The Court accordingly proceeded on the basis that the Society did not object to what was then proposed” [3]. The Twentieth Century Society indicated that it did not wish to make any further informal representations or to become party opponent; during the consultation process certain issues had been raised, but all of these seemed to have been addressed by subsequent revisions to accommodate the views expressed [4].

The Chancellor noted that by letter dated 6 May 2022, the petitioners had fully and satisfactorily set out the adjustments they made to their proposals upon receipt of each of the societies’ comments, and given a full answer to their various concerns [5]. The CBC was broadly content with what was proposed. It recommended that care be taken to make access for all crèche users as equal as possible; and noted that the loss of current seating fulfilled a ‘well-defined need’ and observed that the proposed new seating was in line with the Council’s guidance [6].

The Public notice elicited a letter from the tower captain of Aldrington Bellringers, raising concerns about public safety, matters which could be adequately addressed by way of a condition on any faculty that is granted.

The Chancellor was satisfied that the public benefit to be derived from the changes would outweigh any harm to the church, and granted a faculty. [Re St. Leonard Aldrington [2022] ECC Chi 2] [Top of section] [Top of post]

Re St. Michael & All Angels Berwick [2022] EACC 1 This judgment  relates to an appeal to the Court of Arches against the decision of the Deputy Chancellor of Chichester Diocese in Re St. Michael & All Angels Berwick [2021] ECC Chi 7. The seating in the church comprised pews and rush-seated chairs; the petitioners sought faculty approval for the removal of: six pews dating from the 1850s; five pews dating from the 1970s:  and a small number of rush-seated chairs dating from the 1930s. The Deputy Chancellor had refused to grant a faculty for the removal of the pews and their replacement with stackable chairs made by Treske. The Court allowed the appeal on the basis that the conduct of the proceedings in the Consistory Court had been flawed, in that the Deputy Chancellor had erroneously assumed that the proposal was to remove all the seating in the church, including the rush-seated chairs, which was not the case.

The Court concluded by noting:

[4.2] The Application for Permission to Appeal included many further grounds. Indeed, the ground of mistake was only added at the stage of renewing the Application before the Dean, the Deputy Chancellor having refused to grant permission on any of the other grounds. By her Order of 11th January 2022, the Dean directed that permission be granted on the new ground of mistake and adjourned consideration of the rest of the Application…

[4.3]. Counsel for the Appellant frankly took responsibility for the fact that he made “an error … in his submissions” which neither the parties nor the Deputy Chancellor spotted. It is, of course, most unfortunate that, as a result of Counsel’s error, the Deputy Chancellor was, himself, led into error but this does not detract from the fact that a fundamental and significant error was made in the determination of the Petition. In the circumstances, we have reached the provisional view that the Appellants should bear the costs of the Appeal. We are, nevertheless, granting liberty for written submissions to be put in if the Appellants wish to seek to persuade the Court otherwise”.

[Re St. Michael & All Angels Berwick [2022] EACC 1] [Top of section] [Top of post]

Re St. Michael & All Angels Berwick [2022] ECC Chi 3 This judgment relates to the reordering proposals considered in Re St. Michael & All Angels Berwick [2021] ECC Chi 7, when the Deputy Chancellor refused a faculty for the removal of the pews. The petitioners appealed to the Court of Arches on the grounds that the Deputy Chancellor based his decision on the erroneous assumption that the proposal was to remove all the seating in the church, including the rush-seated chairs, which was not the case. The Court of Arches granted the appeal (Re St. Michael & All Angels Berwick [2022] EACC 1) and directed that the case be remitted to the Consistory Court of Chichester to re-determine the petition. This judgment deals with matters preliminary to a re-hearing, including a challenge to the Consistory Court’s power to direct a further oral hearing, questions as to costs, and directions for a new hearing. [Re St. Michael & All Angels Berwick [2022] ECC Chi 3] [Top of section] [Top of post].

Re St. Mary Magdalene Stilton [2021] ECC Ely 1 The Rector and Churchwardens sought permission to remove two pews from the front of the nave, to create a larger performance area, and four pews from the back of the nave, to provide a children’s area [1]. The proposals had been trialled under an archdeacon’s licence for temporary reordering. After the period of the licence expired, the reordering remained in place without lawful authority [2]. The petitioners also wished to replace the pews with chairs with blue upholstery, which had already been purchased.

The “sorry history” to the application over the period May 2016 to May 2021 is set out in [9] before considering its merits. On these, the Chancellor stated that he would consider their merits “unaffected by the way in which the petitioners have acted” [8]. Nevertheless, he detailed the “Lessons to be Learned” [19] to [23] on the very poorly management of this application by the church, stating:

“The purchase and installation of the chairs ahead of obtaining a faculty was wrong. I would be entitled to take action against the PCC and consider imposing a fine”.

The Chancellor granted a faculty for twelve blue upholstered chairs to replace the front two rows of pews only. He indicated that if a further faculty was sought for more blue upholstered chairs, he would not be minded to grant one unless a more suitable colour was chosen and the existing chairs were reupholstered in the same colour [23]. [Re St. Mary Magdalene Stilton [2021] ECC Ely 1] [Top of section] [Top of post].

Re All Saints Haslingfield [2021] ECC Ely 2 The Petitioners applied to repair and reinstate a stained glass window in the east wall of the vestry. The window contained fragments of medieval, 19th, 20th century glass as well as glass which was used to fill the window, and has traced onto it a probable design of the original window [1]. The window had been removed under an emergency faculty in March 2019 and a confirmatory faculty was granted to remove the window on 26th July 2019 [3].

The application received support from the DAC. Restoration has started on the  window and funding has been granted by Historic England with a deadline to complete it by September 2021 [4]. In a letter of objection, a former churchwarden stated that the window was an uninspiring mixture of disjointed pieces of glass, which did not befit the Grade I church, and that the pieces of glass should be put into storage for occasional display [5,6].

The Chancellor stated that having removed the glass to preserve and restore it, the petitioners had no option but to replace it in the window from which it was taken. Although only fragments remain of the medieval glass, it is a window of archaeological significance and its Victorian treatment is, in itself, of significance and distinction [12]. He saw no merit in the objector’s arguments and granted a faculty, and was satisfied that the use of the bequest to pay for part of the cost of the work is fully justified and done with the enthusiastic approval of the parents of the young girl who died. With the benefit of a grant from Historic England – itself an indication of the importance they attach to the window – there will be less call on the bequest in any event. [Re All Saints Haslingfield [2021] ECC Ely 2] [Top of section] [Top of post]

Re Christ Church Silloth [2022] ECC Car 2 All but twelve of the original pews had been removed from the church as part of a reordering, completed in 2021. The current proposal was for the introduction of 100 upholstered chairs as additional seating. In October 2021 works were completed that involved the provision of level access at the main entrance, introduction of kitchen and toilet facilities, and provision for a raised platform extending the chancel into the nave for a nave altar and as a stage for concerts and performances. The same scheme of work involved the removal of most of the original pews in order to create an open space [7]. Some of the removed pews were retained, to be used as moveable seating; the proposed new chairs would be used as additional seating in the nave, when required [8].

The type of chair in the proposal was a timber framed chair with wine coloured upholstery, supplied by Alpha Furnishing. The Victorian Society objected to the chairs being upholstered, citing the guidance given by the Church Buildings Council, which advised that unupholstered chairs had greater sympathy with historic church environments. However, the Deputy Chancellor stated [emphasis added]:

“[28]. I take into account that the Guidance Note to which the Victorian Society refers states that it ‘is intended to guide parishes through the planning stages and the decisions involved’. It is, of course, an important and useful expert guide: but it is not binding“.

He determined to grant a faculty, being satisfied that the petitioners had taken great care in looking at all the possible options and that the red upholstery would not look out of place in this particular Victorian church, where the interior was decorated in red and yellow bands of brickwork. [Re Christ Church Silloth [2022] ECC Car 2] [Top of section] [Top of post]

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