Review of the ecclesiastical court judgments during April 2020

Thirteen consistory court judgments were circulated in April, and the seven featured in this first part of the round-up all relate to Reordering, extensions & other building works and the installation of two heraldic banners. The second part reviews the remaining six judgments which concern Organs, Exhumation and Churchyards and burials. The second part also includes reviews of CDM Decisions, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law. The latter have included longer analysis of a number of this month’s consistory court cases, including: Re St Mary the Virgin North Aston and Re All Saints Hesketh with Becconsall, a joint post on petitions seeking the installation of new stained glass; Re St. Mary Bampton Proper on the restoration of an historic organ; and Re St. Mary the Virgin Redcliffe which was reviewed last month, and Re St. Mary Chithurst. from earlier in the year.

Reordering, extensions & other building works

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

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Reordering and alternative uses

Re Alvaston St. Michael & All Angels [2020] ECC Der 3 The petitioners sought  a faculty in respect of various items of reordering, on which Chancellor Bullimore commented: “the chief difficulty presented by the petition lies not in relation to the proposals it contains, but in the effect of other permissions that have been given” [1]. The issues were summarized [emphasis added]:

“[18]. …the church interior has been effectively re-ordered over a period of several years, since the new heating was put in under faculty in 2016, without a clear, final and timely resolution of the condition in the ‘heating’ faculty, or the conditions under the Archdeacon’s Licence for temporary re-ordering, granted in October 2015 for a limited period of 15 months.

The fixed pews have been removed, with a handful now relocated in different positions. There has been a levelling of almost the whole floor area so as to cover the pew platforms with T&G boarding and so do away with changing levels and trip hazards, (caused mainly by the pew platforms), together with the making good of the defective floor surface. Carpet has been introduced over almost the entire area and the chairs brought into use.

[19]. It is against that background that I am asked to approve the permanent removal of almost all the pews from the nave and aisles, and the retention of the green chairs. These significant changes have been effected by a series of limited steps without the normal stages for a permanent and radical re-ordering, DAC advice carefully complied with, and perhaps most significantly, Public Notices which would enable parishioners to indicate any objections, or resolution of the objections registered by Historic England or other amenity bodies.

However exactly this state of affairs has come about, it is concerning, not least because it appears, whatever the reality may be, that the normal procedures and constraints for implementing such changes, have been at least circumvented.”

The Chancellor noted the chaotic progress of these developments and unaccountable delays [20], Historic England’s comments in the unsuitability of the chairs [26, 27], and his disquiet at the way the parish had reached its present state, by the steps that have been taken, albeit with approvals sought and given at various stages, [29]. He detected two/three separate areas where things could and should have been dealt with differently:

• Licences for Temporary Re-ordering are intended only for approval of temporary and minor works [30];
• He had great difficulty in accepting that the Licence related to works that were both temporary and minor. Stripping out the remaining pews, was a major project, and standing back, could it convincingly be portrayed as temporary? [31];
• The most concerning issue was that consents to the List B requests in respect of boarding over the whole floor (as well as other joinery works), and carpeting the nave, the side aisles and chancel, were given when the condition in the ‘heating’ faculty, and the requirements under the Licence, had not been complied with at all [32].

Nevertheless, the Chancellor concluded, saying:

“[37]. However there is no point seeking to disguise my own view of the matter. Despite the strong views of the DAC adviser, and the wholesale failure to follow the CBC guidance, I have to say the appearance of the chairs …  is, perhaps somewhat unexpectedly, very pleasing…There are a number of potential layouts illustrated on plans of the interior, but this merely confirms that the use of the chairs can be changed as desired, which is hardly a surprise.

[38]. In my view the advantages of the open and flexible space have been adequately demonstrated, and outweigh such limited benefit as the historic seating contributed… The interior was warm and inviting, and I am sure that the present layout will be of considerable benefit to this church in pursuing its mission within the local community. I grant the petition, and as there seems nothing left to do”

 [Re Alvaston St. Michael & All Angels [2020] ECC Der 3] [Back] [Top]

Other building works, including re-roofing

Re St. Paul Addlestone [2020] ECC Gui 1 The Parochial Church Council wished to install solar panels on the roof of the unlisted Victorian church in order to reduce its energy bills. The PCC expects to save about 18% on its energy bills (total savings are hoped to be about £1,000p.a.) in addition to championing the environmental benefits of green sustainable power within the local community [2]. Wey Valley Solar Co-operative will provide solar panel arrays on the church main south roof providing just over 10kW h;  these must be installed in March 2020 in order to attract government subsidies [the judgment is dated 2 March 2020]. There is no substantial cost to the church for the installation as it is funded through the tariffs and the lower electricity charge to the church.  Wey Valley Solar takes the financial risks and also undertakes the maintenance of the installation for 20 years. After this the panels become the property and responsibility of the church [3].

The PCC satisfied a number of DAC queries about the effectiveness of the overall project, the best arrangement of the panels on the roof and structural concerns. In order to address the aesthetic impact on the building the PCC chose frameless black panels to reduce their visual impact (lessening their visibility against the roof tiles). The design of the cable run from the invertor to the main board in the boiler room will follow the natural contours of the building where possible [4].

The planning authority advised that the equipment must be sited, so far as is practicable, to minimise the effect on the external appearance of the building and the amenity of the area; all black panels will match the existing colour of the church roof tiles. The planning authority required that when no longer needed, the equipment should be removed as soon as reasonably practicable. The other planning conditions for mounting are met. Wey Valley Solar are using a hook & rail mounting system which is MCS accredited and panels will not be within one metre of the external edge of the roof or a wall  [7].

The Deputy Chancellor was satisfied that “the visual impact of the solar panels will be relatively modest and can be accommodated without serious impact on the heritage value of the building”, and he granted a faculty [10]. [Re St. Paul Addlestone [2020] ECC Gui 1] [Back] [Top]

Re St. John the Baptist Capel [2020] ECC Gui 2 A parishioner objected to a proposal to introduce a new lighting scheme into the 13th century Grade II* church, but chose not to become a party opponent. The Chancellor observed:

“[6]. When the papers came before me in January 2020, I prepared a memorandum in which, amongst other things, I said that it was premature to grant the petition because insufficient time had elapsed to enable [the objector] to decide whether to become a party opponent or to have his letter of objection taken into account.

I was also concerned, and this is something of a general complaint, that when architectural plans are reduced to A4 size there are parts that are often unintelligible, particularly when notes written on the plans are reduced to a font size which cannot easily be read and which lose definition if an attempt is made to enlarge them on screen. I therefore considered that [the objector] should be given the opportunity to inspect a copy of the plans as originally prepared.”

The Chancellor considered the parishioner’s eight grounds of objection none of which provided a reason for refusing the grant of a faculty. [Re St. John the Baptist Capel [2020] ECC Gui 2] [Back] [Top]

Re St. Mary the Virgin North Aston [2020] ECC Oxf 3 The Rector of the parish sought authority to install a new, contemporary stained glass window, incorporating two small original late medieval glass eagles, in the east window of the south chapel in place of the existing clear glass window and to carry out repairs to the external stone reveals. A parishioner, now deceased, and his surviving family wished to donate the new window, and proposed the artist, whose theme the Tree of Life, had been chosen by the donor.

In response to the DAC’s initial reservations regarding the content and style of her original design, the artist revisited three specific areas with a view to producing a more spiritually robust and defined iconography [2]. Following its preliminary consideration, the DAC indicated that whilst it was amenable to the principle of the introduction of a stained glass window in the east window of the Lady Chapel, it had reservations about the content and the style [8]. Although the DAC did not consult the CBC, under rule 9.6 the CBC was  contacted by the Chancellor and it indicated that it was content to defer in this instance to the views of the DAC [9].

In response to the Public Notices, there was one party opponent, though several parishioners, including members of the Parochial Church Council, expressed their objections to the proposed design [10 to 13]; the sole Party Opponent objected to the installation on five grounds [13]. The merits of these objections were discussed by the parties and also the opinion of an expert architectural historian, Dr Steven Brindle, [14 to 17].

The Chancellor, The Worshipful David Hodge QC, considered the proper approach in relation to the questions in Re St Alkmund, Duffield [2013] Fam 158 at paragraph 87 (as affirmed and clarified by that Court’s later decisions in the cases of Re St John the Baptist, Penshurst [2015] 17 Ecc LJ 393 at paragraph 22 and Re St Peter, Shipton Bellinger [2016] Fam 193 at paragraph 39 [18].

Recent case law authorities provided only limited assistance. The Cases considered were: Re St. Gregory Offchurch [2000] Coventry Const Ct, Gage Ch., [21]; Re St Mary, Longstock [2006] 1 WLR 259, [22]; and Re St. John, Out Rawcliffe [2017] ECC Bla 11, [23]. The court noted that both Offchurch and Longstock were decided prior to the decision of the Court of Arches in the leading case of Re St Alkmund, Duffield [2013] Fam 158 “and they must therefore be read subject to the effect of that decision. The authorities cited seem … to emphasise: (1) the reluctance of Consistory Courts to get drawn into disputes about the fine detail of the design of stained glass windows, (2) the importance of giving due consideration to the views of the PCC and of the DAC and other consultative bodies; and also (3) the importance of the appearance of the proposed window in itself, and its effect on the appearance, and significance, of the church as a whole [24].

Whilst the court was satisfied that the PCC (by a majority) has given its support to the installation [26], it entertained concerns about the process by which that decision was reached [27]. Against the factual background, in its consideration of the Duffield questions the court noted that there was no other contemporary stained glass within the church; and against the observation of Canon Elliott that “It is surely right that each age adds something to the fabric of their place of worship” it stated that this is subject to the proviso that the addition must be a worthy addition to the fabric of the church [29].

In conclusion, the Chancellor refused to grant a faculty; he was not satisfied that a convincing case had been made for the particular design in the particular location, such as to overcome the normal presumption against change. He was also concerned that the design of the window, if introduced, would be resented by a significant minority of the worshipping community. [A photograph of the proposed window is included at the end of the judgment]. [Re St. Mary the Virgin North Aston [2020] ECC Oxf 3] [Post] [Back] [Top]

Re All Saints Hesketh with Becconsall [2020] ECC Bla 1 The proposal was to install a new stained glass window in an existing three-light window in the south wall of the unlisted 20th century church in memory of a former parishioner. The Church Buildings Council did not favour the design for several reasons. The Deputy Chancellor himself did not favour the design, but nevertheless granted a faculty. The church was unlisted, the design had been unanimously approved by the Parochial Church Council, and there had been no objections. On the question as to the circumstances in which a memorial should be allowed in church, the Deputy Chancellor quoted Re St. Mary Longstock [2006] 1 W.L.R. 259 and Re St. John Out Rawcliffe [2017] ECC Bla 11 as “authority for the proposition that the … test of exceptionality, which applies to the introduction of a memorial into a church, does not apply where what is sought to be introduced into a church is an object, such as a stained glass window, which should adorn and beautify the church, and comprise part of its fabric, even though it may also commemorate a particular individual.” In his concluding remarks, Deputy Chancellor Hodge said:

“[19]. On the evidence in this case, the court is concerned that some, albeit moderate, harm may be caused to the significance of this fine, albeit unlisted, Austin & Paley church by the installation of this proposed design of stained glass window….However, despite these real concerns, after much anxious, and prayerful, consideration, and not without some hesitation, the court has concluded that it would not be right to characterise the installation of this particular design of stained glass window as harmful to the church…The court is also satisfied – even if only just – that a clear and sufficient justification for carrying out the proposal to install this particular proposed design of stained glass window has been demonstrated.

The proposed window has received the unanimous support of the full PCC, and no objections have been received to the public notices within the prescribed period… The court does not consider that the PCC (and the donor of the window) should be prevented from implementing a design which is acceptable to the DAC simply because it does not meet the court’s own more exacting standards of design and taste (even though these may be shared by the CBC).

With some hesitation, the court is satisfied that it is reasonably necessary and requisite, as a matter of pastoral well-being, and for the living out of the Christian gospel, for the church to be allowed to receive this generous donation in accordance with the wishes of its PCC, even if the design can be characterised as bland and failing to provide the sort of strong and vigorous contribution to the appearance of the church building that such a donation should be”.

[A photograph of the proposed window is included at the end of the judgment]. [Re All Saints Hesketh with Becconsall [2020] ECC Bla 1] [Post] [Back] [Top]

Re Christchurch Dore [2020] ECC She 1 In September 2018, the Archdeacon issued a temporary licence for reordering, to allow the removal of two pews (to be retained in safe storage) and the reversal of a third pew, to provide a children’s corner on the north side of the church. Three parishioners gave written objections, but did not become parties opponent.

Against the background of a forthcoming petition for a general reordering, including removal of the pews, the Chancellor granted a faculty for the temporary arrangement authorised by the Archdeacon to continue until the forthcoming petition was determined. At that point the Chancellor could decide whether the present arrangement should continue or be reversed. [Re Christchurch Dore [2020] ECC She 1] [Back] [Top]

Church Treasures/Sale of Paintings &c/Loans

Re Holy Trinity Bledlow [2020] ECC Oxf 4 The 7th Baron Lord Carrington sought to install two heraldic banners belonging to his late father, the 6th Baron Carrington (1919-2018), a patron of the church; these would be at the west end of the nave of this Grade I church, facing each other on either side of the west nave arch, and supported by black wrought-iron poles about 6.5m metres high, attached to the walls by brackets. The banner as a Knight Commander of the Most Distinguished Order of St Michael and St George (KCMG) dates back to about 1958 and was previously displayed at St Paul’s Cathedral, London; that as a Knight Companion of the Most Noble Order of the Garter (KG) dates back to about 1985 and was previously displayed at St George’s Chapel, Windsor [1].

The faculty application had the full support of the PCC; no objections were received in response to the public notices, and the DAC did not consider that the proposal was likely to affect the character of the church as a building of special architectural or historic interest. The DAC’s principal reason for not positively recommending the petition for approval was said to be that the banners are [“non-ecclesiastical”] which would be likely to be imposing in the west end of the church; it did not consider the banners to have a pleasing design in keeping with the church interior. In response to the CBC’s comments concerning possible damage to medieval plaster, the parish stated that it was confident that there were no remains of wall painting or medieval plaster in this area of the church [4].

Since the banners are to be hung in the church to commemorate the late Lord Carrington, the court has to consider whether the requirement of exceptionality relating to the character or service of the person to be commemorated that would apply in the case of the erection of a monument or memorial plaque applies also in the case of the present faculty application. This was considered in the pre-Duffield case Re St Mary, Longstock [2006] 1 WLR 259 and in Re St. John Out Rawcliffe [2017] ECC Bla 11. The Chancellor noted:

“[10]. … The decisions in Longstock and Out Rawcliffe are authority for the proposition that the Eartham test of exceptionality, [Eartham, St Margaret [1981] WLR 1129], which applies to the introduction of a memorial into a church, does not apply where what is sought to be introduced into a church is an object, such as a stained glass window…A heraldic banner is in something of a hybrid category …

… the court considers that the appropriate test to be applied to an application to introduce a heraldic banner into a church building (as a pre-condition to addressing the Duffield questions) is whether, during their lifetime, the former holder of the banner has made an outstanding contribution to the life of the church, the local community or the nation and (if the latter) that they had enjoyed a sufficiently close connection to the church or the local community”.

As the late Lord Carrington had had a distinguished political career and made an outstanding contribution to the life of the nation, had lived in the village and was a patron of the church, the Chancellor decided that there were sufficiently good reasons to overcome the ordinary presumption against change to a church building and he therefore granted a faculty ; the petitioner (or the PCC) is to satisfy officers of the DAC that no fragments of medieval or Reformation wall paintings or fragments of medieval plaster will be affected by the hanging of the banners (with power to refer the matter back to the court in the event of any disagreement) [13].

Footnote:

The web site of St George’s Windsor explains: “The banners of living Knights of the Garter hang in the Quire of St George’s Chapel but those of deceased Knights are, following presentation at the High Altar in the Chapel, displayed publicly or kept privately depending on family wishes”. The entry for Lord Carrington (#965) indicates that his banner was “returned to the family”.  [With thanks to Jacob Gifford Head for the information] 

[Re Holy Trinity Bledlow [2020] ECC Oxf 4] [Back] [Top]

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