Review of the ecclesiastical court judgments during October 2022 (I)
Twelve consistory court judgments were circulated in October, and the six featured in this
first part of the round-up relate to Reordering, extensions and other building works and organs. The second part, posted on Monsay 31 October, reviews the remaining six judgments which concern Exhumation, Churchyards and burials and also Privy Council Business and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Reordering, extensions and other building works
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews
- Heating
Re St. Mary Bitton [2022] ECC Bri 3 The petition concerns the second phase of a proposed three-phase project for this Grade I church [2]. Much of the work is related to adjusting floor levels, improving access and installing underfloor heating – the introduction of energy efficient zoned under floor heating system and new booster heating units in the main body of the church. The estimated cost of the project is approximately £375,000, of which £87,000 has been secured by the petitioners through fundraising, grants or promised grants [4]. Concerns were raised by the SPAB [5], CBC [6], and Historic England [7, 8] who from their “extensive and helpful research” were not convinced that the alterations were either necessary or would reinstate the historic floor level.
HE also recommended an access audit of the existing situation, looking at the various options to make improvements and their relevant impacts upon the significance of the Church. No such audit was undertaken by the petitioners [9], although “the Petitioners responded very fully in relation to the floor via their architects” [10]. Nevertheless, Gau Ch. commented [11] “[i]n relation to the liturgical and other use of the new space, the petitioners are, in my view, disappointingly vague, despite the requests of the CBC (emphasis added below)…”.
After undertaking the balancing exercise between the concerns raised and the test laid out in the Re St. Alkmund, Duffield [2013] Fam 158 together with the Church’s statutory duties under s35 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, the Gau Ch. was satisfied that the proposals, particularly the proposals in relation to raising the floor would result in harm to the significance of the Church as a building of significant architectural or historical interest [13]. He agreed with the concerns raised by Historic England, but in his judgment, the harm would be of moderate significance bearing in mind the other important architectural and historic features of the church.
The petitioners had been “less than entirely helpful…in relation to the justification for the changes they petition for, and whilst acknowledging that it is impossible to provide precisely detailed evidence of the use for which proposed future alterations might be put”, the examples provided were “short on detail” [14]. However,
“[15]. … these proposals will make the Church a more accessible space for the very young, the elderly and for those with mobility issues…In my view the guiding principles enshrined in the Equality Act assist me in deciding whether these proposals will result in public benefit and also assist the role of the church as a local centre of worship and mission. I am therefore just persuaded that this petition should pass the seal”.
Gau Ch. expressed his concerns on the cost of this very ambitious petition and required that the DAC should approve the proposed seating, and that the works should not proceed until all the funding was in place [16]. [Re St. Mary Bitton [2022] ECC Bri 3] [Top of section] [Top of post]
Re Holy Trinity Clapham [2022] ECC Swk 4 An extensive programme of reordering was proposed for the Grade II* Georgian church, including replacing the existing extensions on the north and south sides of the church and the replacement of the nave pews with ‘Theo M’ stackable chairs. The justification put forward for the works was that the church had experienced significant growth and had been designated by the Bishop as a resourcing church, to promote Church growth, including resourcing other churches and planting new ones. The proposed works would provide great facilities to meet this objective. The Georgian Society (‘GS’) and the Victorian Society (‘VS’) objected to the removal of the pews and the VS objected to the two extensions. Neither the GS nor the VS became parties opponent. Whilst acknowledging the significance of the pews and existing architecture of the church, the Chancellor granted a faculty, being satisfied that any harm to such significance would be outweighed by the public benefit. In his judgment, the Chancellor addressed the meaning of ‘serious’ in the fifth Duffield question. [Re Holy Trinity Clapham [2022] ECC Swk 4] [Top of section] [Top of post]
Other building works, including re-roofing
Re St. Mary the Virgin Hook [2022] ECC She 3 The petitioners sought permission for the first stage of various works of restoration and repair: re-ordering including pew removal and replacement with chairs; new audio-visual equipment; relocation of font to north-east of nave; accessible W.C. to former choir vestry with new door to east side; fixed kitchenette; storage tugs; and new blue carpet runners [1]. The Grade II* church building needs restoration and maintenance and is on the Heritage at Risk Register by reason of failing roofing, ground movement and the need for window and stonework repairs. The Petitioners advance a powerful case for a parallel need to enable the church to be a building fit for 21st Century use by the congregation and the community. The church at present has a limited maximum capacity, is not accessible for users with disabilities, it has an outside toilet down a path and is without adequate refreshment making and washing up facilities. The petitioners seek to make the church more suitable for church and community events, and increase the church’s income in order to raise money for repairs to the roof [3].
The Diocesan Advisory Committee recommended the proposals. There were no objections in response to public notices, but all the amenity societies consulted (though none became parties opponent) objected to metal framed upholstered chairs [7]. The Victorian Society expressed “in trenchant terms” that complete pew removal was not sufficiently justified [7(c)].
A business plan and cash flow projections with and without the proposed internal reordering had been prepared by the incumbent; the cash flow prediction without the proposed re-ordering predicted a very difficult situation; the cash flow prediction with re-ordering was also challenging. In essence the plan is for the internal reordering which is the least expensive aspect of the project to proceed as soon as possible and to be undertaken in achievable stages in order to increase the income of the parish and to enable fundraising for the project [8].
The parish has two objectives for the proposed internal re-ordering: to be able to use and hire out the building to increase the present modest income of the church by adding to it the profits of church run events and the hire fees of the externally run events; and for such expansion of events to result in more people joining the dwindling regular congregation. [8]
The Chancellor was satisfied that the petitioners had made a good case for the works and granted a faculty for all the works, subject to the replacement chairs being made of wood, in accordance with the guidelines of the Church Buildings Council. [Re St. Mary the Virgin Hook [2022] ECC She 3] [Top of section] [Top of post]
Re St. James Staveley [2022] ECC Car 3 The main proposals for the Grade II Victorian church were for new glazed porch doors, a new inner glazed door (whilst retaining the historic timber doors), and improved access arrangements. The Victorian Society objected informally to the proposals relating to the doors, on the grounds that glazed doors would introduce an inappropriate element to a Victorian church and constitute harm to the significance of the listed building. Per contra, the petitioners argued that the glazed doors would provide openness and welcome. Moreover, similar glazed doors had been installed in the nearby Grade I church of Holy Trinity Kendal. The Chancellor considered that the justification for the works outweighed the low degree of potential harm to the church. He therefore granted a faculty. [Re St. James Staveley [2022] ECC Car 3] [Top of section] [Top of post]
Removal and replacement of pews
See Re St. Mary Bitton and Re Holy Trinity Clapham.
Re St. Mary the Virgin Welling [2022] ECC Sw3 The original gas boiler of the 1950s unlisted church had failed, having been condemned as unsafe and removed; in winter, the church cannot realistically be used without any heating [1,2]. The PCC wish to install a new heating system with new pipework and radiators and using a new gas boiler, at a current estimated price is £67,500. The decision on the replacement system has been informed by the advice of a heating consultant; a “green” option is not available at reasonable cost [5].
The Chancellor noted the Church of England policy of achieving net carbon neutrality by 2030 but also the Diocese of Southwark target of 2035. These policies would require the replacement of gas heating with ‘green’ alternatives [6]. The DAC had approved the petitioners’ proposals. and Petchey Ch stated:
“[9]. [a]s regards the faculty jurisdiction, my general approach is to leave the question of how they implement the carbon neutrality policy to individual churches. As long as they have considered the matter, I will not seek to substitute my own judgment as to what they should do [Re St. Mark Mitcham [2020] ECC Swk 5]. This is not of course to say that in any particular case that it would be different. Their decisions will obviously take into account the views of the DAC. I shall deal with the situation where the views of the parish and the DAC differ when and if it arises.
[10]. I am sure that the parish are nervous about installing a new gas boiler in circumstances where the price of gas has increased dramatically and may increase yet further. They will no doubt consider this aspect of the matter before the order is placed. But as matters stand there does not appear to be an alternative.”
He concluded:
“[13]. In these circumstances, I direct that a faculty should issue. Details of the proposed new radiators should be supplied to the DAC for its approval; as well as details (by way of drawing or annotated photograph) of the new flue arrangements. It is possible that planning permission could be required for the new flues; the petitioners should check and not undertake the works before obtaining any permission that may be required. The works are to be completed to the reasonable satisfaction of the Church’s Inspecting Architect.
[14]. The parish have carefully thought about this proposal and have engaged with the questions and comments of the DAC. I am grateful to them and to the DAC for their help.”
[Re St. Mary the Virgin Welling [2022] ECC Swk 3] [Top of section] [Post] [Top of post]
Re St. Lawrence Aldfield [2022] ECC Lee 5
The Ecclesiastical Law Association has summarized this case as follows. 
“The rector and church treasurer sought retrospective permission for works already carried out to the organ, including treatment of woodworm, cleaning of pipework, fitting two new sets of sliding tuners, and asbestos removal from the blower. The petitioners stated that the work had been urgent and the reason form applying for a confirmatory Faculty now was that the Parochial Church Council wanted to the situation regularized, so that they could recover the VAT on the cost of the work. The Deputy Chancellor, emphasizing the need to seek formal approval for works, even in urgent cases, granted a faculty.” [Re St. Lawrence Aldfield [2022] ECC Lee 5] [Top of section] [Top of post]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.