“Church treasures”: an unnecessary classification?

One Church Warden’s rubbish may be another art dealer’s treasure

Re Emmanuel Church, Leckhampton, Rodgers Ch.

The recently published Removal of bells from a closed church considers two judgments relating to St James, Church Kirk in the Blackburn Diocese; the earlier case, Re St James Church Kirk [2019] ECC Bla 4, suggested that the designation of “church treasure” was not appropriate in relation to one of the church’s bells [12, 13]. The Worshipful John W Bullimore addressed the issue in the context of a closed church, and below we explore this further and consider the utility of such a designation, other than providing a convenient shorthand for a range of disparate but valuable objects.

Legislation and Guidance

In Re St. James Welland [2011] Worcester Const. Ct, Mynors Ch., the Worshipful Dr Charles Mynors said:

“[44]. Although most of the reported cases refer to the sale of “church treasures” as if that were a special category of property to which quite separate rules apply, it seems to me that there is no distinction in principle between the disposal…of an extremely valuable painting and that of a spare piece of carpet used in the vestry…”.

The post Links to materials on “church treasures” includes legislation and guidance relevant to “church treasures”, here and here respectively. The earlier versions of the Faculty Jurisdiction Rules have wording similar to that in the current Measures, but none make a specific reference to “church treasures”. However, s11(1) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 differs in that it includes a provision that the jurisdiction of the consistory court of a diocese applies to all parish churches in the diocese and the churchyards and articles appertaining thereto, an issue considered in In re St Lawrence, Wootton [29, 32], infra.

Re St. Lawrence Oakley with Wootton St. Lawrence

The judgment Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches concerns the sale a Flemish armet (a spiked helmet with a visor), and is reviewed in our post Sale of “Church Treasures”. The Court observed that over the past half century, various matters, including financial exigency, security issues, and perceived mission imperatives, had led to an increasing number of petitions seeking to dispose by sale of church treasures [*]. It further noted that despite its re-iteration that faculties for the sale of treasures is be “sparingly exercised”, the consistory court judgments show a growing readiness to sanction sales, including sales on the open market [3].

After determining that the case fell within the scope of the faculty jurisdiction, the Court indicated that there were three types of disposal of treasures, each of which requires a faculty [34]:

  • The first, which does not involve any change of ownership, is where the item is placed on long term loan to a museum, art gallery or diocesan treasury (“disposal by loan”).
  • The second is where the item is to be sold to a museum, art gallery or (more rarely) diocesan treasury (“disposal by limited sale”).
  • The third is where the item is to be sold, regardless of who the purchaser is, to whoever will pay the highest price (“disposal by outright sale”).

The Court advocated: a sequential approach which considers each of these categories of disposal in ascending numerical order [34]; further, the maintenance of the public visibility of valued heritage items should be a key feature in the courts’ decision [37]. In reviewing the legal principles which apply in disposal cases, it stated:

“[51]. …qualitative weight, including the cumulative weight of individual factors, some or all of which may not be specially rare, is all that has to be identified; and the requisite weight is that which is sufficient to outweigh the strong presumption against disposal by sale.”

It stated that with this approach, rather than continuing to engage in the semantics of what is “special” (as in the two-stage approach described in [46]) [], chancellors need merely decide whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against sale [51].

With regard to the link between the treasure and the church, the Court expressed its preference for the term “separation” (rather than “alienation” or “the severance of any meaningful relationship between the article and the church”) for describing the circumstances in which an article had been housed for a considerable amount of time in some place other than the church. In future cases, the Court was of the view that little weight should normally attach to “separation” as a reason for disposal by sale, and it doubted that “separation” would ever, on its own, have sufficient strength to justify sale of a Church treasure.

On the role of churches as a guardian of treasures, the Court considered that the dictum in Re St. James Welland [2011] Worcester Const. Ct, Mynors Ch. at 108 was too narrow; it did not accept the view that:

“churchwardens’ powers are limited to acquiring and dealing with property for purposes which are principally concerned with worship and mission; or its corollary that the churchwardens ought therefore to dispose of property that is not capable of being applied for such purposes [35]”.

This contrasts with Re St Ebbe with Holy Trinity and St Peter Le Bailey [2011] Oxford Const. Ct, Bursell Ch at 7(10), made a mere three days later, that:

“It is of the utmost importance that heritage is conserved, whether or not it is perceived to be of “practical use” and whether or not any person has a ‘particular attachment’ to it. Indeed, if our national and Church heritage it to be properly displayed, its importance and relevance may come to be appreciated by those otherwise would pass it by on the other side”.

In re St John the Baptist, Penshurst

The judgment In re St John the Baptist, Penshurst [2015] Court of Arches relates to the relocation of a chancel screen to another church within the same diocese, and is reviewed in our post, here. It concerns an unsuccessful appeal by the Victorian Society against the decision of the Chancellor of the Diocese of Rochester to allow the removal from the church of a Victorian eight bay screen by Bodley & Garner and its reinstallation in a church in Leicestershire, which would necessitate the reduction of the screen by two bays.

The Arches Court considered the underlying principle relating to works affecting “articles of special architectural, historical, archaeological or architectural interest, sometimes known as church treasures” [19]. It reiterated the wording in the Measure(s) supra:

“[24]. …Church treasures are articles of particular (or special) historic, architectural, archaeological or artistic interest falling within the faculty jurisdiction: see rule 15(1)(a) of the FJR 2000 (now rule 8.6(1)(c) of the FJR 2013).”

However, as noted above, there is no specific reference to the term “church treasures” within the Faculty Jurisdiction Rules, either as quoted or in their present iteration. The judgment continued:

“Such were the Burges font in Re St Peter’s, Draycott, [2009] Fam 93; the Oldrid Scott chancel screen in Duffield; and the Flemish armet in In re St Lawrence, Wootton [2014] Arches Court. Where church treasures might be adversely affected through movement or removal unless special precautions were taken, the CBC’s advice must be sought: Rule 15(2) of the FJR 2000 (now Rule 8.6(2) of the FJR 2013); and where disposal (by loan, gift or sale) is involved special rules apply, as most recently refined in Wootton, where the interest in maintaining public visibility was emphasized (see para 37)”.

Where the object in question constitutes a church treasure, such as the chancel screen in the instant case:

“[26]. …it is important that all matters relevant to this status are taken into account in the decision-making process, and not only those relating to the character of the listed building…

[27] In this context…it is irrelevant that it is a fixture (as are also fitted furnishings or paintings, decorated or painted panelling and carvings, or in-built clocks, to give but a few examples) rather than a moveable item (for the somewhat indistinct boundary between chattels and fixtures, see Berkeley v Poulett and Others (1977) 1 EGLR 86, CA, 88-89)…

…In Draycott there was uncertainty whether the font was a moveable item or a fixture, but the factors held to be relevant in the case of disposal of the font if it were a moveable item (which included that “the church would be diminished in interest by the disappearance of a work of considerable architectural, artistic and historic importance”) were held to “apply equally” if it were a fixture (see paras 76 and 82(3))…

…Dr Mynors, counsel for the petitioners, fairly pointed out that previous cases which have considered the proper approach to church treasures have involved moveable chattels, which could without difficulty be enjoyed on their own and had a value readily realisable on the open market. He conceded, however, that in the case of a chancel screen of some intrinsic interest in itself, the act of removing it and re-erecting it elsewhere has some of the characteristics of removing a chattel to another location; and that this made it appropriate to consider, as what he termed “a subsidiary issue”, the extent to which the screen is “part of the heritage and history not only of the church, but also of all the people, present and future, of the parish, a phrase used by this court in St Mary the Virgin, Burton Latimer (unreported, 26 October 1995). This aspect of an object as “part of the local heritage” was also referred to in Wootton para 59, both Burton Latimer and Wootton being concerned, however, with chattels rather than fixtures”.

Closed Churches

The Mission and Pastoral Measure 2011, as amended by the Mission and Pastoral etc. (Amendment) Measure 2018 sets out the legal procedure for parish reorganisation, for closing consecrated church buildings, and settling their future. Most of the provisions of which came into effect on 1st October 2018, and others from 1st March 2019. With regard to the disposal of the font, communion table and plate, and other contents, s76 provides:  

“(1) Where a pastoral church buildings scheme or pastoral (church buildings disposal) scheme makes provision for a church or part of a church to be demolished or appropriated to any use specified or described in the scheme the bishop shall, unless the scheme makes other provision, give directions as to how the font, communion table and plate used for the purpose of Holy Communion shall be dealt with but, if the church or part is so demolished or appropriated before any such directions are given or fully implemented, the diocesan board of finance (DBF) shall, subject to any provision of the scheme, be responsible for the care, maintenance and safeguarding of any such item”…

(5) No faculty shall be required for anything done in pursuance of this section”.

The Church’s Guidance for Purchasers and Lessees on Acquiring a Closed Church Building states “contents will usually be removed from the building before the sale or lease is completed”. Thus, combined with the requirements of the Mission and Pastoral Measure, it is unusual for consistory courts to address the issue of “church treasure” from closed churches. Nevertheless, there is one example – St James Kirk in the Blackburn diocese, from which an unringable bell, cast in 1537, was transferred to a museum in 2019, and the ring of eight bells was moved to another church in the diocese in 2022, here.

In the earlier case, Re St James Church Kirk [2019] ECC Bla 4 Chancellor Bullimore observed [emphasis added]:

“[12].  However, the first question has to be, is this a church ‘treasure’? I do not think every item of historic interest has to be categorized as such, and the circumstances in which disposal is contemplated is a very relevant factor. Here the building has ceased to be used for worship, it has no body exercising the responsibilities formerly exercised by the Parochial Church Council (‘PCC’), and it has no “congregation”, who could “appreciate” its presence. Who can it be a treasure for? If its familiar surroundings have been removed, what is the best thing to do with it?”

[13]. Closed churches are vested in the DBF, who have to assume some responsibilities that were previously exercised by the PCC. These will include insurance and protection of the building against intruders and would-be thieves…”.

There are similarities between the facts of this case and those of Re Holy Cross Scopwick [2015] Mark Bishop Ch. (Lincoln); in the latter,  the bell which was cast in 1700, was considered to be “unlikely to be of any use to fit into a peal of bells”, was not wanted by the Keltek Trust, and ultimately was consigned to the diocesan store under the revised faculty. The Worshipful Mark Bishop commented “I approach this case on the basis that this bell is a church treasure, although I have not found a case in which a bell has been treated in this way”…

He did not, however, elaborate on its classification as a church treasure. Other chancellors have been similarly equivocal on the status of bells as “church treasures”; although in Re A Redundant Church Bell [2021] ECC Oxf 11, the Worshipful David Hodge QC acknowledged that the bell in question was not an art treasure but “an important part of the heritage of this particular church which should be preserved within the church building” [28].

Comment

In Changing Churches, Charles Mynors comments [at 15.4.1, page 345]:

“although many of the reported cases from the consistory courts refer to “church treasures” – particularly in the context of their disposal – as if there were a special category of property to which quite separate rules apply, there seems to be no basis for the distinction of principle between the acquisition or disposal of an extremely vabulable sculpture and that of a piece of carpet to be used in the vestry”.

He further notes:

“It may be that treasures have been considered to be a distinct category is simply because the bulk of the reported litigation relates to items of greater monetary value, such as antique silver or paintings. Certainly the technical meaning of the word “treasure”, under the Treasure Act 1996, is of no relevance in this context”.

Furthermore, the courts have noted “the expression is not defined tightly” and and “the use of the word ‘treasure’ is subjective and might be unconnected with its actual sale value”, Re St. Cuthbert, Thetford [2021] ECC Nor 1 at [28] and  Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct, Rodgers Ch., para.1, page 40, respectively. Whilst these examples and the above case law identify the problematic nature of the term, it nevertheless has a degree of utility in the disposal of unwanted items. In Re St. James the Great Flockton [2016] ECC Lee 4 in which the Worshipful Mark Hill QC observed:

“[20]. A great deal of time and effort has been taken up in dealing with what is a relatively uncontroversial matter. I have followed the approach of the Chichester Consistory Court in Re St Mary Magdalene, South Bersted [2014] Chichester Const. Ct, Hill Ch. and interpreted the observations of the Court of Arches in Wootton as being applicable solely to church treasures and not to the disposal of chattels generally, where they would be disproportionately onerous [#]. This cannot have been the intention of the Court of Arches and in the Diocese of Leeds…the more rigorous regime will apply solely in relation to “treasures” properly so described.”


Notes

[*]  “…since the seminal judgment in Re St Gregory’s, Tredington [1972] Fam 236, the issue has been considered on four occasions: In re St Helen’s, Brant Broughton [1974] Fam 16;  Re St Martin-in-the-Fields (unreported, 31 October 1972); Re St Mary the Virgin, Burton Latimer (unreported, 26 October 1995); and Re St Peter’s, Draycott [2009] Fam 93” [3].

[] In a number of consistory court cases a two-stage approach has been followed; first asking whether the circumstances could reasonably be described as “very special”; and if, but only if, they could be described as “very special”, did the question arise whether the very special circumstances clearly outweighed the harm.

This led to definitional concerns as to what were “very special circumstances”, with a distinction drawn between the very special and the commonplace. see, for example, St John the Baptist, Halifax (unreported, 19 December 2000) (Wakefield consistory court), followed by the same chancellor in Re Lincoln St Giles (12 April 2006, unreported save at (2006) Ecc LJ 143) (Lincoln consistory court)) (paras 27 and 45), the latter decision being referred to, on another issue, in Draycott (para 63).

[#]Chancellor Hill stated [emphasis added]:

“[6]. I would be concerned if the Court of Arches’ guidance in paragraph 19 of Wootton St Lawrence were to develop into a mantra which was uncritically applied in absolutely every case where a parish which to divest itself of any object whatever its value. Whilst the wording of the paragraph suggests the guidance has application in all “disposal cases”, I consider it should be read in context and applied only where the proposed disposal of church treasures (properly so described) is involved. There will be a subjective element for a certain category of case in determining whether a specific item is a church treasure. In most instances, however, it will be obvious. Where doubt exists, the court should be cautious and lean towards categorising an object as a church treasure, guided by expert opinion including that of the DAC and CBC”.

Cite this article as: David Pocklington, "“Church treasures”: an unnecessary classification?" in Law & Religion UK, 2 September 2022, https://lawandreligionuk.com/2022/09/02/church-treasures-an-unnecessary-classification/

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