In a guest post, Shirani Herbert, Legal Correspondent of the Church Times, reviews the unfortunate sequence of events in Re St Bartholomew Bristol [2024] ECC Bri 1

Carrying out building work unlawfully and then applying for retrospective permission is always risky, whether in the ecclesiastical courts or under the secular planning laws. If permission is refused it may result in the work having to be demolished at great expense and inconvenience.

The issue arose in the Consistory Court of Bristol when Chancellor Justin Gau was faced with a petition seeking a confirmatory faculty in respect of work carried out unlawfully at the church of St Bartholomew Bristol, an unlisted church built in 1894.

The unlawful work consisted of the destruction in 2017 and 2018 of an area described as either a “porch screen”, a “vestibule” or a “draught lobby”, and the removal of a pair of wooden doors and their replacement by the installation of a pair of glass-panelled doors between the main entrance porch and the body of the church.

The parish itself had a complex history, having been combined with two other churches in 1997. One of the other churches was later demolished. In October 2015 the boiler at St Bartholomew’s broke down and had still not been repaired by 2017 when a petition to reorder the church was granted. At some time during that reordering the porch was unlawfully destroyed and the wooden doors removed.

Since then the congregation of St Bartholomew’s had moved into the former Horfield Baptist Church and was seeking an order under the Mission and Pastoral Measure 2011 legally to close St Bartholomew’s for worship.

The Chancellor commenced his judgment with the words that “to say that the events of this application are unfortunate would be an understatement.” The petitioners had given “the appearance, deliberately or not, of being unwilling to assist” him the Chancellor remarked, but had subsequently co-operated and been “wise enough” to engage the services of Jacqueline Humphreys, a barrister, and had elected Jane Auld, a retired barrister with ecclesiastical law experience as a new churchwarden to deal with the petition.

As the Chancellor felt he “was not being given adequate assistance by the petitioners,” he asked for written statements from the “appropriate parties” who consisted of the project manager of the church, the priest in charge and the team vicar of other parishes in the area and other individuals who appeared to be “directly concerned with the unlawful behaviour” such as the former churchwarden and the contractor. However, the Chancellor said he found the “collective amnesia from all involved in this behaviour … little short of incredible.”

The fact that the petitioners failed to either inform senior staff at the diocese, or the Registry, of events relating to the removal of the vestibule pointed “towards a deliberate flouting of the faculty jurisdiction and the deliberate destruction of the lobby and the removal of the doors to give an attractive Victorian building what the petitioners felt was a more ‘contemporary feel’.” [19]

The Chancellor drew attention to the Church of England’s “privileged position in being able, broadly, to police its own planning controls.” That was, he said, “a cherished right but, as with all rights comes great responsibilities.” It was not as if the Church of England did not do all it could to assist parishes, and this diocese, in particular, was “blessed with an excellent DAC, well informed and helpful Archdeacons and an extremely able and experienced Registry, any of whom could have assisted the petitioners.” [21]

At the hearing on 18 December 2023 Ms Auld apologised on behalf of the petitioners and gave assurances that there were now staff and proper procedures in place for all further developments. She pointed out that asking the petitioners to rebuild the draught lobby would be impossible and stated that the new incongruous doors should be retained and not replaced with the original doors as the original wooden doors would be a health and safety hazard. [23]

The Chancellor noted in passing that the original wooden doors “were not a health and safety hazard when the draught lobby was in place”.

Ms Humphreys submitted in regard to the Re St Alkmund, Duffield [2013] Fam 158 questions that the unlawful actions had caused little or no harm to the significance of the building as one of special architectural or historical interest. [26]

She asserted, in reliance on Re St Peter & St Paul Aston Rowant [2019] ECC Oxf 3, that “it would not be possible to obtain substantially the same benefit from other works causing less harm to the character and special significance of the church building.” She submitted that that was “because it was necessary to have glass doors for safety and the opening up of the entranceway would not have been achieved if the vestibule remained in place.” [27]

Alternatively, she submitted that since the draught lobby had been destroyed it would not be possible to make the restoration order. In support of that submission, she cited other cases where a marble font had been destroyed or there had been unlawful exhumation of cremated remains. [29]

The Chancellor disagreed. He said that were he to agree, “a troubling precedent could be created in this diocese simply to destroy items without the benefit of a faculty.” [30]

Ms Humphreys went on to submit that on the unique facts of this case, namely that the original building was no longer used for worship, it would be disproportionate to make an order. [31]

Her final submission was that the Chancellor could impose a time-limited permission for the works until such time as the church was used for public worship of the Church of England. If the church were to be sold away from the Church of England the building would cease to be subject to the faculty jurisdiction. [32]

The Chancellor’s concern about that submission was that it might be interpreted as a stumbling block to the return of the building for use for Church of England public worship and might be seen to inhibit the mission of the church. [32]

The Chancellor also disagreed with Ms Humphreys’s analysis of the Duffield questions and inclined towards the view of the Victorian Society that the unlawful removal of the lobby had caused St Bartholomew’s to be unlistable. But bearing in mind that the church was unlisted when the unlawful behaviour took place, the Chancellor was “just persuaded that the harm caused was not so serious … that a confirmatory faculty” should not be issued. He also accepted Ms Humphreys’s submission about the disproportionate nature of refusing the confirmatory faculty in this unique situation. [33]

The confirmatory faculty was granted for the removal of the draught lobby and the removal of the original doors on condition that the doors were stored safely so that whoever took the original building had the opportunity to restore them. [35]

The petitioners were ordered to pay the costs of the petition, including the correspondence costs of the Registry involving a large number of emails to the Chancellor.

Cite this article as: Shirani Herbert, “An unfortunate sequence of events: Re St Bartholomew Bristol”, 21 May 2023, https://lawandreligionuk.com/2024/05/21/an-unfortunate-sequence-of-events-re-st-bartholomew-bristol/.