Review of the ecclesiastical court judgments during September 2023 (I)
Eight consistory court judgments were circulated in September. This first part, which is posted out of sequence for operational reasons, features Reordering, extensions and other building works and Church Treasures/Sale of Paintings/Loans/Memorials.
The earlier Part II of this post featured:
Re St. Anselm Kennington Cross  ECC Swk6 The petitioners sought permission for a major reordering which involves use of the space at the east end of the Grade II church to provide room facilities on three levels; the east wall of the new facilities will become a reredos for the remaining space, which will continue to be used for worship . Petchey Ch. commented:
“. …No-one appears as a party opponent but English Heritage, the London Borough of Lambeth and the Twentieth Century Society have all identified harm to the listed building and the Twentieth Century Society maintains an objection”.
The proposals require the removal of two very large murals in the church which are church treasures as well as fixtures; these were considered this in the light of the guidance given in In re St Lawrence, Oakely with Wootton  (Court of Arches) and Re St John the Baptist, Penshurst  (Court of Arches). The “murals” [*] are not murals in the strict sense but marouflages, affixed to the walls of the nave. It is also proposed to move the font to the east end of the south aisle.
The significance of St Anselm’s had been assessed in a Statement of Significance prepared by Dow Jones, the architects for the scheme. They adopted essentially the same approach as recommended by the Church Buildings Council in its Guidance Statements of Significance and Statements of Needs: Major Projects (January 2014) and in relation to the murals, [13,14], and states:
“. While Norman Adam’s marouflages have qualities in and of themselves, and in spite of the fact that they were designed for the building, they sit uncomfortably within the church. They do not respond to the architecture, and in their complexity compete with the austerity of the space. They are detracting elements within St Anselm’s, and they could be better appreciated if relocated”.
The Church Buildings Council advised that expert advice be obtained as to significance of the murals from an expert in painting, Professor Frances Spurling, an art historian and critic . She wrote:
“. The mural is of national significance because it represents a sudden outburst of new sacred art in Britain in the 1970s; because of its size, scale and energy; because it boldly seeks to evoke the tough thinking that has brought Pilgrim’s Progress so many readers since it was written in 1678. It is also a work of art by an artist who for some years represented the top end of his profession, as both an artist and teacher”.
The proposal in detail
“ a “tower” structure is to be built within the space at the east end of the church. This is to span the width of the church and provide rooms on three levels: on the ground floor, on the first floor, on the second floor. There will be WCs on the first floor. The first and second floors are to be serviced by a lift. The eastern wall of the tower is to be made to form a reredos to the area of the church retained for worship. As a consequence of this it is necessary to remove both the murals and baldacchino”.
“. The proposals have been designed with the target of the Diocese to achieve net carbon neutrality by 2035 very much in mind. The current heating…by an oil-fired boiler…will be replaced by …air source heat pump…This will provide a heat source that is low carbon, and as the electricity industry de-carbonises over the coming years the position in this regard will only improve. Solar panels…could be retrofitted and used to power the heat. The building will be provided with secondary glazing and the doors made more airtight. There will be some insulation provided in the roof. The use of embedded carbon in the construction will be minimised”.
Law and Policy
Petchey Ch. assessed the proposals against the guidelines in In re St Alkmund, Duffield  to , and assessed the meaning of serious harm in his judgment In re Holy Trinity Church, which suggested that serious harm should be interpreted by reference to substantial harm as explained in paragraph 018 of National Planning Policy Framework (NPPF) Guidance . He observed:
“. It seems to me that, interpreting what serious harm means in the Duffield guidelines, it is legitimate to look at what Government means by substantial harm in the NPPF both because the concept of serious harm is derived from the NPPF and also because although the approach of the ecclesiastical courts is not the same as that of the secular planning system, the former is informed by the latter. The State is content that the ecclesiastical exemption should continue to exist on the basis of the “principle of equivalence”.
. Section 35 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 provides that: “A person carrying out functions of care and conservation under this Measure, or under any other enactment or any rule of law relating to churches, must have due regard to the role of a church as a local centre of worship and mission”.
. This provision does not apply to Chancellors but, it has also been held that, if it had done, it Chancellors would have added nothing to the existing duty and practice of In reaching my decision/ I have had due regard to the role of the church as a local centre of worship and mission, a matter which must be highly relevant to a case of this kind. (In re St Luke, Maidstone at p 7 cited with approval).
Citing In re St Lawrence, Oakely with Wootton  (Court of Arches) and Re St John the Baptist, Penshurst  (Court of Arches), Petchey Ch. stated:
“. It is not relevant to a consideration of whether permission should be given item for a treasure whether it is a fixture or moveable .There is a strong presumption against sale. Where a treasure does not have a monetary value there is still a heavy onus on those who seek its removal”.
After reviewing the Consultation,  to , and the position of the Petitioners as to the murals,  to , the Chancellor considered the petition in the context of the Duffield guidelines,  to  and observed:
“. …if the east end of the church is to be utilised to provide new usable space then, inevitably, the baldacchino and the murals cannot be retained nor the proportions of the church maintained”.
Although he considered that the harm would be serious that it is clearly outweighed by the public benefits that the proposals will achieve, and considering just the Duffield guidelines, it is clear that it is appropriate that a faculty should issue . Addressing the murals as a church treasure, he did not think that it was appropriate to do so by refusing to grant a faculty for the works for which the Petitioners seek permission, and gave consideration to the options for their future  to .
Re St. John Fishponds  ECC Bri 3 The petitioners sought the disposal of all the pews in this unlisted Church dedicated in 1911, and their replacement with two sets of upholstered chairs in two different colours (one set of 57 orange chairs, one set of 24 blue chairs) . The chairs had been donated from a closed local Methodist Church and introduced under List A Rule 5A (9): “The introduction of free-standing chairs in a church which is not a listed building” .
The Victorian Society expressed it opinion that “St John’s is a dignified and rather impressive edifice, designed by a firm of well-respected late nineteenth- and early twentieth-century architects…The loss of benches is unobjectionable in principle, on condition that high quality new furnishings replace them”.
“What is proposed is not high quality and would erode the character and appearance of the interior, and would also jar with the existing chairs, which are themselves unsuitable. The result would be extremely unfortunate. We urge the parish to consider the statutory advice issued Victorian Society) the use of timber, unupholstered seating in historic church interiors”.
Gau Ch. commented:
“. It is indeed unfortunate that the petitioners have allowed their enthusiasm for this project to affect the usually courteous exchange of views expected in consistory courts…
. I am prepared to grant the petition. I appreciate the financial issues that face the petitioners and so I am prepared to allow the ‘castoff chairs’ (to quote the Victorian Society) to be introduced. I would not normally necessarily be prepared to allow chairs of this style to be introduced and so the petition will be granted with the following conditions:
[a]. 6 of the orange and 3 of the blue chairs are to be adapted to have arms, alternatively; [b]. The petitioners must purchase 9 wooden chairs with arms; [c]. In the event of any of the newly introduced upholstered chairs wearing out they must be replaced with wooden chairs”.
Re St. John the Evangelist Penge  ECC Roc 3 The pews and clergy stalls in the chancel were removed under an Archdeacon’s Licence for Temporary Reordering in 2014. For the reasons explained in the judgment, they were still in storage. The petitioners now requested a faculty for the permanent removal of the pews and stalls and their replacement with chairs.
Since 2014, the style of worship and the uses to which the chancel were put had changed, to allow for a range of community outreach activities, including work with young children. The Chancellor granted a faculty. The pews and stalls had been removed 9 years previously, and if her were to impose an obligation to return the pews, “the worship and work of the church would be positively hindered and damaged”. [Re St. John the Evangelist Penge  ECC Roc 3] [Top of section] [Top of post]
Re St. Mary and St. John the Divine Balham  ECC Swk 7 The petitioners wished to replace the existing three gas heating boilers with three new gas boilers. Whilst the amended Faculty Jurisdiction Rules 2015 provided that due regard must be paid to the Church of England’s net zero guidance, the petitioners had been unable to find an alternative system at reasonable cost, and the proposed new boilers would be more efficient than the old ones. The Diocesan Advisory Committee had accordingly recommended the proposed system. The Chancellor granted a faculty. Although some Chancellors have in similar cases imposed a condition relating to offsetting, in order to meet the challenge of meeting carbon neutrality, the Chancellor decided not to impose such a condition in this case. He gave further consideration to green fuels  and carbon offsetting  to , concluding:
“. As the [CBC] Routemap explains, it is a problem area and in principle offsetting is not something to be encouraged: it will be apparent that the churches of the Church of England could be virtually carbon neutral tomorrow (on one footing) if every church were to offset its carbon footprint. It would be unfortunate if, as 2030 (or 2035) approaches the focus were to switch from the achievement of carbon neutrality by not adding to the carbon footprint to paying for offsets.
. In the light of this judgment the PCC…will want to consider whether they want to purchase offsets or otherwise seek to offset its carbon footprint in whole or in part. Nothing I have said in this judgment should be taken as suggesting that it is inappropriate to do so: even if offsetting is not the ideal it is better than nothing…”
Re Christ Church Gipsy Hill  ECC Swk 8 The petitioners sought permission to replace a gas fired cabinet heater in the church with a new condensing gas heater . The Church has a very efficient gas fuelled heating system which operates by blowing hot air through underfloor vents, but the heating unit to provide the hot air has failed and the obvious solution is to replace it. Accordingly, the PCC looked carefully at the alternative options: heat pumps are not viable; the installation of electric heaters is a possibility but these would be very expensive to install, less energy efficient, unsightly and expensive to run.
The DAC agreed with the PCC that it would not be sensible to install them and the DAC agree; it therefore certified in accordance with rule 4.9 (7A) FJR that the petitioners had considered the Church’s net zero guidance; and recommended the proposals to the Chancellor  who directed that a faculty do issue as prayed .
The DAC noted that as the technology improves, heat pumps might become a viable option but given the efficiency of the current system this might constitute a situation where the Church would prefer to continue using a fossil fuel and achieve net carbon neutrality by paying for offsets .
Making reference to Re St. Mary and St. John the Divine Balham  ECC Swk 7 which he handed down the same day, Petchey Ch. said [emphasis added]:
. …I consider whether in circumstances where a faculty is granted to replace one fossil fuelled heating system with another, it is generally appropriate to impose a condition requiring the purchase of offsets. For reasons I gave in that judgment, I decided that it was not and I do not here repeat what I said there.
. However, I made it clear in that judgment that I was not discouraging the purchase of offsets and, as I have noted above, the way that Christ Church achieves carbon neutrality by may be by purchasing offsets. In the circumstances, they will wish to consider whether they want to do so now or at least from 2025 when it is hoped that this will be possible through the parish buying scheme.”
See also Re St. Anselm Kennington Cross, supra, at .
See Re St. Anselm Kennington Cross re: removal of the large murals.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.