Review of the ecclesiastical court judgments during July 2022 (I)
Nine consistory court judgments were circulated in July 2022, and the three featured in this first part of the round-up all relate to Reordering, extensions and other building works and Audio Visual Equipment. The second part will review the remaining six judgments which concern and Churchyards and burials.
This summary also includes CDM Decisions and Safeguarding, Reports from the Independent Reviewer, Privy Council Business, Visitations, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews
Re St Mary the Virgin Fawley  ECC Oxf 3 The priest in charge and churchwardens petitioned for a faculty to permit reordering works, including the provision of kitchen servery and toilet facilities, a renewed heating system and the removal of some pews to create a more flexible space in the church, in order to advance the church’s worship and mission .
With regard to the Duffield questions, the Worshipful David Hodge QC said:
“. Since the judgment of Chancellor Eyre QC (in the Diocese of Lichfield) in Re St Chad, Longsdon  ECC Lic 5 (at paragraph 11) and my own judgment in Re St Peter & St Paul, Aston Rowant  ECC Oxf 3, (2020) 22 Ecc LJ 265, 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 concerned…
“. It is this consideration which gives rise to what I conceive to be the key question in the present case. It is not disputed that the parish have demonstrated that this church building needs suitable kitchen and WC facilities and additional and more flexible open space. The real issue is as to where this space should be created and the extent of the consequent pew removal.”
Notwithstanding concerns of the Victorian Society and the Society for the Protection of Ancient Buildings, the Chancellor determined to grant a faculty, being satisfied that any harm to the significance of the church was likely to be outweighed by the public benefits to be generated as a result of the proposals. [Re St Mary the Virgin Fawley  ECC Oxf 3] [Top of section] [top of post]
Some addition background information on the church and its community has been posted by the Diocese of Oxford.
Re All Saints Harbury  ECC Cov 3 The priest-in-charge, churchwarden and chair of the fabric committee sought a faculty for rewiring and new lighting ; the installation of an audio-visual system ; and an upgrade to the heating system of the church and an associated room (“the Tom Hauley Room”)  to . The heating proposal caused disquiet, both from the concerns of the Victorian Society and in the scepticism of the DAC heating advisors as to how effective the scheme will eventually prove.
The Chancellor considered the revised scheme which arose from consultation with the DAC advisors, dated May 2022 :
“. The May 2022 heating scheme comprises radiant ceiling panels, adapted to modify the heat output to ~80% radiant and ~20% convection heating. It is hoped that these panels (mounted high in the roofing structure and parallel to the floor, coloured so as to blend in with the background) would provide ‘line of sight’ radiant heat to the users of the Church building.
These radiant panels would need gas boilers, but the Church and, in fact, the local community have shown a considerable commitment to ‘green’ energy. ‘Green’ gas supplies will be implemented as soon as possible and the scheme would use hydrogen compatible boilers with adapted supply infrastructure to permit the change to ‘green gas’ then hydrogen to run smoothly and without much further amendment. The Parish ultimately accepted advice that proposals for utilising an air source heat pump in the Tom Hauley Room would be inefficient and expensive, given the heating requirements and usage patterns of the space, which could also be catered for with the proposed hydrogen-prepared boilers.
With regard to the first Duffield question, the DAC advisors suggested that the radiant heaters be placed high in the structure, coloured so as to blend in with the surroundings and be parallel with the floor, instead of angled. The Chancellor concluded that the proposal is unlikely to harm the character of the church. I am also mindful that the entire scheme should be almost entirely reversible when a different scheme is considered necessary at a later date .
“For the avoidance of doubt”, he also considered both the lighting scheme and the rewiring with addition of AV and sound equipment. There had been no objection to these two schemes and he similarly concluded that neither would harm the significance of the Church (and, in effect, the lighting scheme will improve the appearance and character of the Church interior compared with the current fluorescent tube lighting scheme) .
In granting a faculty, the Chancellor commented:
“. In issuing a certificate of No Objection the members of the Diocesan Advisory Committee expressed reservations that the heating proposal will not be as efficient as the petitioners believe and they express concern that the scheme may prove more expensive in fuel usage than the Parochial Church Council hopes. However, it was also acknowledged that the Church membership is keen to try out this ‘experiment’ (as the members of Diocesan Advisory Committee referred to the heating scheme) and is willing to take the risk that fuel costs may be higher than anticipated. I will not produce an obstacle to the Parochial Church Council on the basis that there is a risk of higher fuel bills.
The members of the Parochial Church Council are those charged with responsibility for the financial affairs of the Church. It is their choice whether to take on the risk of potential further expenses. I am specifically concerned with whether their proposed schemes can, in law, be implemented should they decide to progress further”.
Re St. Peter St. Helier  ECC Swk 2 The Vicar and Churchwardens sought a faculty to remove a mural from the west front of the church. The petition is unopposed and work was recommended to me by the DAC . Having decided that a faculty should issue, the Chancellor noted that in the ordinary course where there were no objections and the DAC supported a petition, he would not write a judgment: “however in the particular circumstances of the case set out”, he considered that it was appropriate that he should do so .
The church of St Peter was one of the 25 churches that were built as a result of a fund raising campaign led by Bishop Garbett and was consecrated in 1933 . With the PCC, the Revd Donald Reeves, Vicar between 1969 and 1980 commissioned a series of paintings forming a sequence of Stations of the Cross from a local artist, Peter Pelz, whom also commissioned to paint a large mural of the last judgment on the west front of the church .
The mural showed the destruction of a city in flames,with a Christ-like figure holding creation in his hands; the artist wrote in a text that described the mural that [t]hose who live through grief may enter heaven. The PCC supported the installation of the mural by vote of 18 to 1 and that the DAC recommended that a faculty should be granted for it. By their petition, the Vicar and Churchwardens “craved the bishop’s judgment” which meant that in July 1977 the faculty was granted by the diocesan bishop and not by the Chancellor .
The stations of the cross and the mural were never universally popular and in 1991, the then Vicar and his churchwardens petitioned for a faculty to remove both the stations and the mural. The then Chancellor, Robert Gray QC, granted a faculty for removal of the stations, on pastoral grounds; however, with regard to the mural he was concerned that to grant it would result in the destruction of a work of art in its entirety although a substantial and distinguished body of opinion supports its retention. He noted that stations the objections to the mural were not as great as to those to stations .
“There is, in all the circumstances of this case, an important difference between the taking down of the pictures and the destruction of the mural. Once gone, it is gone forever. It is already a landmark, and in this part of London, landmarks of such interest and artistic distinction are too rare for the Court to sanction the removal of one as striking and as significant as this one.”
Some thirty years later, the present vicar and churchwardens petition once again for the removal of the mural, and during this period: it has faded, and in particular, it is difficult to make out the Christ-like figure; and what is portrayed has now acquired unfortunate connotations following the fire at the Grenfell Tower; in the picture, tower blocks are shown as engulfed in flames .
The Chancellor noted that the current situation represents the worst of all worlds: as a work of art the mural is diminished by the fact that it has faded; for the same reason, it fails as a missionary statement. The co-incidental link that can be made with the Grenfell Tower fire is a further proper cause for concern. Whilst these concerns could be addressed by restoring the mural, this option has been considered, and rejected, by the parish .
The outstanding concern was that to permit the removal of the mural is to permit the destruction of a work of art , but although the mural does have artistic merit, the Chancellor was able to work on the basis that that artistic merit was not high . In granting a faculty, subject to condition, Chancellor Petchey concluded:
“. If the artistic merit of the mural is not high and the restoration of the brick front would be a benefit from the point of view of heritage and mission, it is appropriate that a faculty should issue, the case for change having been amply made out. The church not being listed, the Duffield guidelines do not apply, but if I had been applying them I would have identified both heritage and general public benefit and limited harm”.
See Re All Saints Harbury supra. Installation of roof-mounted horizontal low temperature hot water radiant panel heaters.
See Re All Saints Harbury supra.
Closure of churchyards
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: Cheveley Churchyard Extension, St Mary & The Holy Host of Heaven, Cheveley, Cambridgeshire (also known as The Old Cemetery; St Chad’s Church Churchyard, Draycott, Derbyshire; and St Peter’s Churchyard, Frimley, Surrey.
- Burial Act 1853 (Final) Order prohibiting further burials in: All Saints Church Churchyard, Cadney, Brigg, Lincolnshire; St Paul’s Churchyard, Lindale and Newton in Cartmel, Lindale, Grange over Sands, Cumbria; and St Michael’s Churchyard, Holbrook, Derbyshire.
Attachment of Jersey to the Diocese of Salisbury
An Order was made under the Channel Islands Measure 2020 for the attachment of Jersey to the Diocese of Salisbury: The Attachment of Jersey to the Diocese of Salisbury Order 2022, SI 867. The Order transfers episcopal responsibility for Jersey from the Bishop and Diocese of Winchester to the Bishop and Diocese of Salisbury. It is intended that this single Order in Council should attach the Bailiwick of Jersey to the Diocese of Salisbury as a matter of both Jersey law and English law. The Order comes into force on the day on which it is registered by the Royal Court of Jersey. The Canons of the Church of England in Jersey were also registered at this Privy Council meeting.
Also: an Order was made registering the Canons of the Church of England in Jersey, (page 55).
“…Her Majesty is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, that the Canons of the Church of England in Jersey annexed to this Order, together with this Order, shall be registered and published in the Island of Jersey and observed accordingly…”
Diocese of Oxford
Notices of findings and penalties given to clergy in the Diocese of Oxford. March 2021: Penalty under Section 30 of the Clergy Discipline Measure
In September 2020, the Diocese of Oxford was advised that the Revd George Victor Richard Howard had been included in a barred list established in accordance with the Safeguarding Vulnerable Groups Act 2006. He was immediately suspended by the diocese.
The Revd Howard refused to disclose reasons for his inclusion, contrary to section 34A of the Clergy Discipline Measure 2003. Having followed the statutory process for these cases, the Bishop of Oxford imposed a penalty of removal from office and a lifelong prohibition from holding any ecclesiastical office whatsoever or from exercising any of the functions of his Holy Orders.
Church of England
The Revd Simon Lumby – April 2022
Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.
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 21 July 2022. The determinations on 24 March 2022, 26 May 2022 are not yet available, for which only “Form 8” is available.
The next meeting of the CFCE is on 8 September 2022.
- Diocese of Truro: Visitation of Truro Cathedral announced. “As Bishop of Truro, I instituted an External Review of various aspects of the life and ministry of Truro Cathedral in February 2022. This was done with the full co-operation and support of the Dean of Truro, the Very Revd Roger Bush.
I have now received the findings of that review and am very grateful to everyone who contributed to it so helpfully. In the light of those findings and following careful consideration, I have decided to institute a ‘Visitation’ of the Cathedral. This is a formal, legal process which lies within my power as the Bishop of Truro (under the Cathedrals Measure 1999) to institute.” (3 July 2022).
- Diocese of Chelmsford : Announcement of a Visitation at Chelmsford Cathedral. “The Bishop of Chelmsford and the Dean of Chelmsford have announced that a Visitation will take place at the Cathedral later this year. The Visitation will commence early in November 2022. Precise dates are yet to be decided.
A Visitation last took place at the Cathedral at the request of the Dean and Chapter in 2017. The Visitation was commissioned to monitor progress on the strategic plan and the Chapter’s direction going forward. It led to a number of recommendations which have been consistently reviewed since. In 2019 Chelmsford Cathedral underwent a Peer Review which was broadly positive and encouraging.
The Panel undertaking the Visitation will be led by Bishop Tim Stevens, Assistant Bishop in the Diocese of St. Edmundsbury and Ipswich, and formerly Bishop of Leicester. He will be joined by two other Panel members whose names will be announced once confirmed. Mr Nathan Whitehead, Chelmsford Diocese Head of Service Delivery, will act as clerk to the Visitation, offering administrative support. The reviewers will meet with and interview staff, volunteers, congregants, and people who serve on committees and boards to listen to their experience and understanding in order to develop a rich picture of the cathedral, its strengths and weaknesses and its opportunities for development and further effective service.” (13th July 2022).
Recent summaries of specific issues that have been considered in the consistory courts include:
- Synod endorsement for “net zero” plan, (11 July 2022).
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.