“To say that the events that lead to this Judgment are unfortunate is an understatement. The Church of St Peter and St Paul, Pettistree dates from the 14th/15th Centuries and is a pretty grade II* listed building. The Petitioners clearly love the building and their bewilderment and frustration at what has happened to it are palpable. They are to be commended for their tenacity and thoughtfulness,” Gau Ch.

Re St. Peter and St. Paul Pettistree [2023] ECC SEI 3 

Earlier judgments

In 2014, a faculty was granted to authorize the redecoration of the interior of St. Peter and St. Paul Pettistree using four coats of limewash. However, removal of the old emulsion revealed that the walls were in a poor condition, appearing “patchy”, and “deep green” in various area. Consequently, the inspecting architect recommended Zinsser Grade 1 paint (ZS) for the redecoration. He obtained the PCC’s permission (but not the court’s) to use ZS paint, and instructed the contractors to use it instead of limewash, which they did with reluctance.

The paint proved to be unsuitable for this application. It was impermeable, and the migration of salts from the walls to the paint layer caused it to expand and flake within one month of application. In 2017, the Chancellor granted a restoration order which required the paint to be removed and the walls repainted with limewash or an alternative paint approved as an amendment to the original faculty, Re St Peter & St Paul Pettistree [2017] ECC SEI, Etherington Ch., (“the restoration order”). He also directed that the architect should meet the cost of the remedial work. [See Deliberate breach of faculty conditions (6 February 2018).

Re St. Peter and St. Paul Pettistree [2023] ECC SEI 3 

The 2017 restoration order required the PCC to obtain an estimated cost for the works required for the Court and the architect (and his insurers) prior to proceeding with any work on the church. Due to the complexity of the work needed and the many unknowns (the cause of the paint failure; the best method to remove the Zinsser paint; the extent of chemical damage to plasterwork, if any), the first cost estimate proposed by the PCC included a large variation of potential costs [5].

It was deemed unacceptable to start any work without a more detailed and specific workplan, and estimated cost; the PCC was therefore instructed to develop a more accurate cost estimate for the work. To facilitate this, the Court instructed the architect (via his insurers) to fund the costs of additional limited expert wall analysis and technical paint investigations [6].

The specialist investigations started in August 2018 during which some traces of wall paintings were found on the north wall under a layer of the Zinsser paint. As the PCC was not able to fund further specialist work directly, the previously agreed and budgeted analysis work was completed during December 2019 by Dr Andrea Kirkham and Dr David Carrington (Skillington Workshop Ltd); the findings and recommendations were documented in their reports [7]. A revised specification of works was then prepared by Ruth Blackman (Birdsall, Swash & Blackman Ltd) incorporating the recommendations from these reports. This was put out for tender, and costs obtained from appropriate contractors [8]. The expert’s report was summarized by the Petitioners who identified the two possible solutions:

Option A: Removal of Zinsser paint, monitoring and conservation of existing plasterwork & limewash. This included retaining the scaffolding in the nave for 5 years to monitor the condition of the walls before further repainting; and

Option B: replastering and repainting, which would destroy fragments of old wall paintings.

“The Petitioners, who [had] been models of patience during this extraordinary period set out their thoughts very clearly”. They reviewed these options in relation to the requirements of the Restoration Order, financial and pastoral concerns and their impact on the paintings. They were of the view that the short-term and the long-term benefits of re-rendering the nave walls with new plaster would outweigh the risk of damage to any potential wall paintings of historic value and any future problems with the structure of the existing plasterwork [10].

Bearing in mind the gravity of the proposed application in terms of the potential destruction of the wall painting, the Chancellor directed that the amenity bodies were consulted: the Church Buildings Council (CBC) [12] to [14]; Historic England [15] and [17]; and the Society for the Protection of Ancient Buildings (SPAB) [17]. The Petitioners’ summary of these responses stated [19]:

“The responses from SPAB, CBC and HE reject both Options A and B. In one form or another they propose that we leave the impermeable Zinsser paint on the walls and paint over it with limewash. If, optimistically, this was to work it would achieve the decorative outcome we ultimately require. However.
• It would leave in place a non-breathable paint layer that at any time in the future is likely to flake off, leaving us in a similar situation as today but with no further recourse to financial support to rectify.
• If the Zinsser paint cannot be removed due to risk of destruction of any underlying layers, then by definition any undiscovered wall paintings, if there are any, are effectively lost for ever anyway.
• The Consistory Court judgment and Restoration Order instructs the PCC to remove the Zinsser paint and yet both HE and CBC recommend that we should not do that. What would be the legal position for the PCC?
• The Consistory Court judgment clearly instructs that only costs to remove the Zinsser paint and repaint the walls with limewash can be attributed to [the architect] and his insurers. SPAB, CBC & HE all propose significant other works which the PCC would need to pay for (with possible support from grant money if obtainable) which in the current financial situation is impossible”.

The PCC’s unanimous support for ‘Option B’ was matched by support from the DAC [20]. Gau Ch. then applied the test set out in the ‘Duffield’ judgment. With regard to the wall paintings, he made a site visit with the DAC Secretary and the Diocesan Registrar [22] following which he set out in detail what the expert report concluded about the different aspects of the wall paintings : the medieval plaster and paint; the post-reformation plaster and paint; “fragments of red”; late paint layers; conservation and Zinsser removal; Zinsser [23].

The Chancellor noted that the expert report was helpful and scholarly, and commented:

“[24]. …The clear difficulties which involve making informed conclusions about what is hidden are exacerbated by the fact that many of the wall paintings themselves have been painted on plaster which is fragile, parts of which may, over the centuries, have been replaced or repaired. Some of the paintings themselves may have also been subject to deliberate damage during the reformation. They are all also covered by many layers of different paints. It is impossible to know if any of those layers have protected or damaged any of the paintings… .

[25]. In my Judgment the expert evidence is that there are some wall paintings which may be of good quality, but much of the wall paintings are or may be damaged beyond economic restoration. Many of the wall paintings will be damaged by the removal of the Zinsser paint. In those circumstances the ‘Duffield’ test is much trickier.

[…]

[28]. Either proposal will cause some harm to the historic fabric but there are too many uncertainties for me to be able to say whether either will cause harm to the significance of the church as a building of special architectural or historic interest. ‘Historical interest’ by definitions is not the same as ‘special historic interest’.

[29]. Whilst I am grateful to the amenity bodies for their very thoughtful responses, I fear that the proposed solution of painting over the Zinsser paint … will only stack up problems for the parish further down the line at a time when they will be expected to pay for the restoration out of parish funds. I reject those proposals in those circumstances”.

Gau Ch. expressed his judgment that:

• ‘Option A’ may cause some harm, albeit unquantifiable to some paints which may be of historic interest, but may also be so badly damaged as to be of only very limited interest [30];
• ‘Option B’ as proposed by the petitioners will cause some harm, sadly unquantifiable, to the historic interest of the church, but it is not sufficient for me to reject it [31];
• Option B which is superficially unattractive will not cause harm to the Church as a building of special architectural or historical interest (emphasis added*) [32].

[* this comment within the judgment refers to para [28] ] . 

He stated:

“[33]. If I am wrong, my view is that the resulting public benefit from approving ‘Option B’ (including matters such as liturgical freedom, pastoral well-being, opportunities for mission and putting the church to viable uses that are consistent with its role as a place of worship and mission) outweighs the harm that will be caused. The alternatives would mean that the church would be effectively unusable for years in the future”,

and concluded:

[34]. I therefore grant the petition to remove the Zinsser paint from the walls, and also the plaster beneath it and then to apply new render to the walls followed by a suitable number of coats of limewash to the fresh wall surface”.

Footnote

This post is based upon reported judgments of the respective Chancellors. It does not purport to give legal or technical advice, or a technical analysis of the issues discussed.