Review of the ecclesiastical court judgments during August 2023 (I)

Fourteen consistory court judgments were circulated in August and the five featured in this first part of the round-up all relate to Reordering, extensions and other building works. The second part will review the remaining judgments on Church Treasures/Sale of Paintings/Loans/Memorials, Exhumation, and Churchyards and burials. This part summary also includes: CDM Decisions and Safeguarding; CFCE Determinations;  and Links to other posts relating to ecclesiastical law.

Reordering, extensions and other building works

• Substantial reordering
• Reordering and alternative uses
• Other building works, including re-roofing
• Heating

Substantial reordering

Re St. Michael le Belfrey York [2023] ECC Yor 2 The Ecclesiastical Law Association has summarized this substantial100-page judgment:

“St. Michael le Belfrey York is a Grade I 16th century church standing next to York Minster. It is a Resource Church for York Diocese and the Northern Province. It has a weekly congregation of 500+ and has plans for further growth. The Faculty petition contained plans for a major reordering, estimated to cost £10M (of which £8M was already obtained or pledged). The work would involve major changes to the historic fabric, including (inter alia) removal of the gallery and stairs and replacement with a new gallery with lift access; replacement of pews with chairs; and the installation of a full immersion baptism pool. The Chancellor found there to be exceptional levels of public benefit to be derived from the works and compelling reasons to permit the works, notwithstanding the loss of historic fabric and fittings, in order to enable this vibrant and thriving church to meet its missional objectives”.

Further analysis of Re St. Michael le Belfrey York is series of three L&RUK posts, the first of which addresses the background and overview; a second includes extracts from the conclusions to the Duffield questions regarding some of the major components of the petition, and the final part considers the overall impact of the proposal and the court’s conclusions.

[Re St. Michael le Belfrey York [2023] ECC Yor 2] [Video] [Top of section] [Top of post]

Reordering and alternative uses

Re St. Paul East Molesey [2023] ECC Gui 5 St Paul’s is a Grade II church within a small churchyard within a 19th Century residential development; the Parish Room was added to the north of the church in 1975 (and refurbished in 2005), and in 2002 the interior of the church underwent a major internal reordering which removed many of the 19th century fittings. The pews are not original but were added in 2002 [1]. The proposals involve areas of the building altered in the late 20th and early 21st centuries; the alteration of the present storage area at the west end of the North Aisle does not remove any significant fabric and replaces a 21st century timber screen [3].

The petitioners sought  permission for the creation of a servery within the church, opening of the war memorial arch to enable level access to the Haffner room, and new toilets housed in a small extension; also the creation of new storage areas beneath the organ pipes. This work would enable the church to be used fully independently of the parish room [7]. The works are estimated to cost £195,000 and predicted to take 10 weeks.

At a PCC Meeting on 11 July 2022 the reordering plans were approved. The petitioners completed a net zero checklist in compiling their proposals. The Diocesan Advisory Committee approved the proposals on 4 July 2022. The petitioners’ insurance company have been notified of the works. Elmbridge Borough Council granted planning permission on 14 September 2022 [8]. In order to create open spaces for worship, outreach, and secular use, it is proposed to remove nine of the 2002 pews from behind the rearmost columns but leaving the central block in place [10].

The Statement of Needs indicates that the petition has developed from a working group report in 2019 and feasibility studies. The need is based on sustainable worship, sustainable secular use of the church and Parish Room and a sustainable financial future. The Parish Room is in great demand for both church and community activities, often more so than can be accommodated. The work will help create two independent spaces which can be used separately or together [15].

There was an objection to the moving of the war memorial [18, 19]. When considering the Duffield questions, the Chancellor agreed that the War Memorial is of significant interest, but the proposals would result in a very low level of harm to the significance of the church. The reordering would be a change to relatively modern parts of the church interior and do not substantially affect the historical and heritage elements except for the War Memorial.

In the judgement of Burns Ch. there was clear and strong justification for undertaking the proposals. There was a need to allow the church and parish room to work together or to be used independently of each other and to provide a more flexible and attractive space within the church for use by the congregation and the wider community. The future sustainability of the Parish will be significantly improved by the proposals and the key need to move the War Memorial to ensure proper access [21].

The petition was granted as sought, with requirements inter alia that the works must be completed with 18 months but must not commence until the PCC has 85% of the overall cost received or pledged. [Re St. Paul East Molesey [2023] ECC Gui 5] [Top of section] [Top of post]

Other building works, including re-roofing

Re St. Mary Ecclesfield [2023] ECC She 2 The present North Transept is a somewhat crowded space including various artefacts of no historical or architectural significance, except for a medieval stone mensa which is stored leaning against a wall obscured from view.  The Petitioners seek to create a prayer chapel in this space by clearing it except for the mensa which would be moved to a central position to rest on a stone base to create a small altar which could be used to serve Holy Communion [2].

The DAC recommend these works for approval subject to a proviso that the stone mensa is monitored for any deterioration in its condition and the DAC and QI Architect reinvolved as necessary should that occur. The DAC suggested that consultation with the relevant Amenity Societies was necessary; however, this last conclusion was not unanimous, and the issue has generated controversy to the extent that two highly valued members resigned [4].

Singleton Ch. was satisfied that these works would not affect the significance of this space as a building of special historical or architectural significance and should be supported and permitted. She also agreed with the DAC that consultation on this aspect of the plans was unnecessary [4].

[Re St. Mary Ecclesfield [2023] ECC She 2] [Top of section] [Top of post]

Heating

Re All Saints Scotby [2023] ECC Car 2 The petitioners sought permission for the urgent replacement of the 35 years old boiler which had been condemned, and to make improvements to the heating system and boiler room [2]. The DAC confirmed to the satisfaction of the Chancellor that none of the proposals would have any effect on the character of the Church as a building of special architectural or historic interest [10]; the only issue was the replacement heating  system, and the DAC did not approve the proposal. It took the view that the petitioners had not fully considered the alternatives to using fossil fuel and indicated that it would particularly like to see a further exploration of air source heat pumps [5].

Notwithstanding the DAC’s lack of support, the Petitioners informed the Registry that they wished to proceed with the Petition [7]. There is a need for heating in the Church for about 40 days a year, to cater for Sunday services as well as other occasional events such as weddings, baptisms, funerals and community events [12].

The old boiler was shut off and condemned in October 2022, and church services moved to the nearby village hall. Attendances have decreased since then and the Petitioners are keen that services can move back to a heated church as soon as possible [18]. The proposed replacement for the condemned boiler is a modern gas boiler at a quoted cost for the replacement boiler and associated works of £22,490. Existing pipework would be used and the boiler would have the capability of using hydrogen when that becomes commercially available [19]. When funds permitted, the church envisaged upgrading the heating to a two pipe system, as and when it could afford this. The Site Visit Report indicated at an estimated cost of ~£24,000 [20].

However, Deputy Chancellor Lander granted a faculty, being satisfied that the petitioners had in fact considered all the  available alternative heating systems, and that the system proposed was the only viable option that the church could afford. He stated [emphasis added]:

“[27]. In my judgment, the purpose of requiring the Petitioners to explain how they have had “due regard” to the guidance, and of requiring the DAC to set out its opinion on that explanation, is clearly to enable, and indeed to require, the Chancellor to make a decision on whether they have actually had due regard to the guidance;

[31]. I consider that the [Church Legal Office Note] provides a helpful and adequate explanation of [the phrase “due regard” in the context of safeguarding] for present purposes. I propose to adopt it as the correct definition of the phrase in the context of net zero guidance.

After considering the four documents on net zero guidance produced by the CBC [33] to [39], he stated that in his judgment, there were five key points that can be distilled from the guidance, which accord entirely with reality and common sense. In my judgment these are the points which generally need to be considered in an application of this nature [40]. In brief, these are:

• churches need to be properly heated [41];
• in assessing whether a church building is properly heated, it is necessary to consider the proposed and likely uses for the building [42];
• any proposed heating system must be affordable [43];
• the list of types of heating system available for churches is finite [44];
• once there has been a determination as to the appropriate type of heating system or, more specifically, whether the proposed system is appropriate, it is necessary to consider whether any conditions should be imposed when granting the faculty.

Lander Dep. Ch. then addressed the issues in the context of the instant case:

• the types of heating system available [46] to [48];
• the proposed uses for the church building [49] to [52]; and
• affordability [53, 54].

He then dealt separately, and in more detail, with the question of whether the Petitioners have given adequate consideration to the possibility of using an air source heat pump, since this is the particular point raised by the DAC [57] to [53]. In assessing whether the Fabric Committee of the church had properly explored the option of air source heat pumps [64] to [66], he concluded:

“[67]. … the Petitioners have had due regard to the guidance. Indeed, they have followed the guidance and carried out a thorough appraisal of the options available to them. It is not therefore necessary to consider whether the Petitioners have shown cogent reasons for not following the guidance.

[68]. The conclusion of the Petitioners that a replacement gas boiler is the only viable option seems to me to be correct on the basis of the available evidence. The rather unfortunate reality is that it is the only affordable option which meets the needs of the church“.

In conclusion he considered ways in which the carbon emissions from a heating system which is not in itself carbon neutral might be offset. In general

“[71]. Unless something changes, many individual churches will not have sufficient funds to replace fossil fuel boiler systems with other forms of heating by 2030. Many churches will probably still have the fossil fuel boilers which are in use today, or newer fossil fuel boilers for which permission has been given. Unless something is done to reduce the net emissions from these boilers then it is difficult to see how the net zero ambition can be achieved, bearing in mind that heating currently gives rise to 80% of the emissions”.

[72]. With that in mind I consider that when giving permission for a new fossil fuel burning boiler it is necessary to adopt a robust approach when considering conditions. If this, or indeed any, church is to continue to operate a gas boiler then in my judgment the starting point, when considering conditions, ought to be that it should take steps to mitigate the effect of that.

A Faculty was therefore granted, subject to a condition that the church either switched to a green gas tariff or entered into a separate arrangement with a carbon off-setting scheme to offset the carbon emissions from all non-renewable gas used [75].

[Re All Saints Scotby [2023] ECC Car 2] [Top of section] [Top of post]

Re St. Mark Haydock [2023] ECC Liv 2 The PCC wished to replace the existing heating system – “an ageing, inefficient and un-environmentally friendly” – with a new condensing boiler and wall-mounted fan convectors and radiators in the ungraded main church, chapel and youth office, at a cost of £33,000 [1]. Whilst this is an unopposed petition fully supported by the DAC, Wood Ch. provided a short judgment in granting the faculty in the light of the requirements which are now imposed upon churches to comply with the Church of England’s target of achieving net carbon neutrality by the year 2030 and associated guidance. Since the DAC was first consulted after 1 July 2022, there was a requirement to meet the criteria in the Faculty Jurisdiction Rules 2015 as amended, rule 4.2 (2)(b) [2].

Following the first consultation, the DAC and the net zero carbon team asked the petitioner to complete a heating checklist. This was undertaken, and further the petitioner commissioned an energy optioneering review in October 2022 which considered all the options for church heating, including the following: underfloor heating from a gas boiler, underfloor heating from an electric boiler, underfloor heating from a biomass boiler, electric heating using electric panel heaters, conventional radiator heating from a gas boiler, conventional radiator heating from an electric boiler, and conventional radiator heating from a biomass boiler [3].

Before any consultation of the DAC had been undertaken, on 30 May 2022 the Diocese of Liverpool had commissioned a building decarbonisation report which made a number of recommendations, and which was considered at its PCC meeting by the church in September 2022 [3]. Although the PCC would have wished to pursue a greater drive to carbon neutrality by utilising air source heating, the excessive cost of such an option made it unachievable. Accordingly it was resolved that a faculty application should be made for the installation an energy efficient system which was cost-effective and affordable [4].

This was considered by the DAC who provided supporting advice on 2 May, and expressed the opinion that the petitioner, in formulating its proposals, had had a due regard to the net zero guidance. The Chancellor granted a faculty, being satisfied that the PCC had considered all alternative options and that the chosen system, “whilst not perfect in terms of carbon emission, was nevertheless a significant stride forward compared to the current system.” [Re St. Mark Haydock [2023] ECC Liv 2] [Top of section] [Top of post]

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