Recent Consistory Court Judgments – Reordering

Recent consistory court judgments are normally included within our weekly round-up.  However, in view of the number of these in addition to some earlier decisions and directions, we have summarized those relating to reordering in this stand-alone post. The remainder will be covered at a later date.

Re St Peter & St Paul Wadhurst [2014] Chichester Cons Ct, Mark Hill Ch.

The petition for the reordering of St Peter and St Paul, Wadhurst, contained few controversial elements and sought: the removal of pews and pew platforms at the back of the nave and in the north aisle and the construction of a new floor at the same level as existing aisles; installation of a kitchen at the back of the north aisle; introduction of new cupboards in the north transept; introduction of new chairs; improvements to the heating system. The existing layout is shown in the Church Guide. However, since Section C of the petition indicated that part of the east wall of the vestry was to be demolished (even though that aspect of the work is not the subject of the petition), the Chancellor was faced with a scheme which the diocesan registry had treated as one involving the partial demolition of a church.  Were it to be treated as such, section 17 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 would be engaged, and this would necessitate extensive consultation and additional procedural requirements.

Although he was satisfied that the proposed alterations could not be so classified, more detailed consideration was given since the registrar had requested general guidance for future petitions within the diocese. In the present case the Court of the Arches judgement in Re St Alkmund, Duffield [2013] Fam 158 was applied, the necessary criteria were satisfied and the was petition granted subject to certain conditions.

With regard to future petitions, noting the House of Lords’ decision on in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168, which considered demolition rather than “partial demolition” in a secular planning context, the Chancellor cited with approval Re St James’ Chapel, Callow End [2001] 1 WLR 835, Worcester Cons Ct, which dealt with section 17 of the 1991 Measure. However, he noted that the future Church of England (Miscellaneous Provisions) Measure [1] will insert

“a new section 17 into the 1991 Measure. Section 17(3)(a), in its revised version, [which] will permit the granting of a faculty for the demolition of part of a church if the consistory court is satisfied that ‘the demolition is necessary for the purpose of the repair or alteration of the church or the reconstruction of the part to be demolished’”; and

 section 17(5) of the revised section will provide a helpful definition as follows

“For the purposes of this section, ‘partial demolition’ and cognate expressions-

(a) mean removal of such part of a church as would, in the opinion of the court, significantly affect its external appearance, and

(b) do not include the destruction or removal of minor or ancillary structures forming part of the building”.

Re St Dunstan Edge Hill [2014] Liverpool Cons Ct, Sir Mark Hedley Ch.

This short judgement relates to “a substantial re-ordering of a significant listed building, [Grade II* listed]”, for which there is a general presumption against any change which might affect significantly the character of the building.  The proposed changes are: “to take up and relocate the font; to introduce a new altar and Ambo; to remove and dispose of the existing nave altar and Lady Chapel altar; to install additional lighting; to remove and dispose of seven high-level metal halide light fittings; to box in the electrical services in the baptistery.”

Although the church was originally built to accommodate a congregation in excess of 800, the present congregation rarely exceeds 25. The proposed re-ordering is driven by a major rethink of the liturgical needs and priorities of the church and congregation; the liturgical impetus is based on the communal worship of a pilgrim people as distinct from a liturgical performance put on for the benefit of a passive congregation, i.e. it is intended that the congregation should move from font to ambo to altar during the course of the Eucharistic liturgy.

The Chancellor determined that the proposed works would affect the character and significance of the building, but was satisfied that, in conjunction with the proposed liturgical development, the effect of the works would be to enhance that character and significance. The proposed works are uncontentious in the parish and have the support of English Heritage, the applicants having agreed to one matter sought by English Heritage.

Re St Margaret Old Catton [2013] Norwich Cons Ct, Ruth Arlow Ch.

The petition concerned the re-ordering scheme within this Grade II* listed parish church, which involves: the removal of some Victorian pews; the replacement of the porch doors and the provision of a movable nave altar and communion rails;  improved disabled access; and the provision of “the sort of facilities expected by a modern congregation, such as a disabled toilet, kitchenette facilities and an area for welcoming visitors and providing fellowship and refreshments after services”. The Diocesan Advisory Committee had recommended the proposed works and English Heritage was also supportive of the scheme. The Church Buildings Council has been consulted, and deferred to the advice of the DAC.

The sticking-point for the Victorian Society and the Society for the Protection of Ancient Buildings was the removal of some of the pews and alterations to the fabric and fittings of the 19th century. It was generally agreed that the church was densely-pewed (or even over-pewed) as indicated here  [2].

In approaching the Duffield questions the chancellor noted the Victorian Society’s concerns that there has been an inadequate assessment of the significance of the nave pew frontals, the clergy stall, and the south aisle pews, although this was countered by the opinion of English Heritage that described the pews as of “relatively unremarkable quality…individually” and as part of a “multiphase and somewhat incoherent furnishing scheme”. Nevertheless, she concluded that although the quality of the individual pews might not be high, the proposed works [i.e. the removal of a significant number of them] would result in harm to the significance of the church as a building of special architectural or historic interest, although this harm would not be significant.

The petitioners were deemed to have made out a clear and convincing justification for the proposed works “the limited harm which these proposals will cause to this church is clearly outweighed by the significant public benefit to be achieved.” Faculty granted.

Re Wymondham Abbey [2013] Norwich Cons Ct, Ruth Arlow Ch.

This Grade I church was originally a Benedictine priory (later an abbey) church established in 1107, and was transferred to the sole charge of the parish at the Dissolution [3]  .  What remains standing is but half of the original building, the eastern end of which was demolished in the 1530s.  Nevertheless the building is of international historic and architectural significance and plays an important role in the local community.  The proposed works detailed at paragraph 7 reflect a mix of community and church activities, and are substantially funded by a Heritage Lottery Fund grant in excess of £1.5 million.  Inevitably, such grants are made subject to certain conditions which tend to require community- and well as church-related benefits, although these are not detailed in the judgement.

The principal purpose of the proposed works is to “open up the church building” and create a flexible learning and interpretation centre (‘the Abbey Experience’), and details of the works are given in paragraph 8. There was little or no dispute about almost all of these proposals, and the only area of significant disagreement concerns the extension of the east end of the church: no concerns were raised regarding the extension to the north side which will have only a limited impact on the church’s aspect as it will largely be fitted within existing structures; however, Society for the Protection of Ancient Buildings, (SPAB), English Heritage, (EH), and the Church Buildings Council, (CBC), expressed concerns in the case for the larger proposed extension to the south side of the church which is “strikingly 21st century in appearance”, constructed of natural stone with a terne-coated [4] steel roof, [paras. 10 to 13].

In addressing the Duffield questions, the chancellor had regard to the fact that planning permission has already been granted by the local authority and although not bound by this decision, that decision must of relevance to her considerations, Re St Mary, White Waltham (No. 2) [2010] 3 WLR 1560 per Chancellor Bursell QC. In the instant case, she noted

“It is abundantly clear, from these as well as other documents, that the significance of the church comes in large part from the development of a range of historical architectural styles over the centuries. Given this unique combination of architectural variety on the grand scale which exists at Wymondham, it is proper to regard the proposed works as resulting in harm to the significance of the church as a building of special architectural or historic interest”, [para. 17],

and in relation to question 3, supported by the view of Chancellor George QC in Re St John the Evangelist, Blackheath (1998) Ecc LJ 217, said

“It is clear that the principal harm occasioned will be the aesthetic impact of the new extension on the building. It is not for me as chancellor to impose my own aesthetic sensibilities upon petitioners.”

With regard to the fourth question, there was general agreement on the needs of the parish in respect of the facilities and the issue was rather one of how these should be met. SPAB and EH had suggested alternative means of achieving these needs, although all three proposals [5] would have the effect of reducing or ‘closing-in’ to a greater or lesser degree the main body of the church, and if the structural limitations suggested by both the CBC and SPAB were to be imposed on the scale of this extension, the available space would be reduced by between one half and two thirds, [para. 24 and 25].  However, on the fifth Duffield question the chancellor concluded that “given its central role in the worshipping and civic life of Wymondham and its environs, the public benefit from the proposed works must be significant”.  Petition granted subject to conditions.

In addition to the normal considerations relating to reordering, two other more specific cases have been reported.

Discovery of remains during building works

Re St. Clement East Cheap [2013] London Cons Ct, Justin Gau Dep. Ch. 
The church of St Clement, East Cheap is undergoing a major redevelopment requiring the reordering of the interior to add offices to the church interior with a kitchen and lavatories, all to be accessible to the disabled. Human remains were uncovered during the excavations within the churchyard and shortly afterwards, further human remains were uncovered inside the church. On visual inspection, the Chancellor was satisfied that the remains from the churchyard “are human, they are disarticulated, extremely antique and, from their proximity to some early twentieth century drainage areas, appear to have been unlawfully shifted when those works took place.” Furthermore, he was “quite satisfied that there is no possibility of identifying whose remains they are and consequently there is no hope of contacting any descendants.”

Since it was not possible to reinter remains in the closed churchyard, the Chancellor directed that all the remains be stored within the church until such convenient time as all the remains could be reinterred inside the church in the same area where the second set of human remains had been uncovered.  He was reassured by the entirely appropriate and respectful reactions of the workers on site, and directed that all the remains be stored within a cupboard within an office in the church, “a safe and reverent place for them”. During the interregnum, it is for the Area Dean as acting Priest in Charge to satisfy himself that the remains are being reverently stored and, if he has any concerns he is to contact the Registry.

Re St. Michael and All Angels Whitwell [2013] Norwich Const Ct, Ruth Arlow Ch.

The churchyard in the village of Reepham, Norfolk was once the site of the churches of three different parishes, although now only two church buildings remain intact serving the single joint parish that was formed in the 1930’s.  St Michael’s is no longer used for regular parish worship but is physically joined to St Mary’s Church and acts as a Church Community Hall, here.  It was refurbished in 2011 at cost in excess of £350,000 “to create an attractive and vibrant space available for the use of the town as well as the church and wider benefice”.

The petition seeks concerns the installation of secondary glazing in this Grade II* church in order to overcome two problems: difficulty in heating the building; and the level of noise emanating during community events, which has been a source of complaints from neighbouring properties.  After its initial objection, the DAC agreed to the proposed scheme of this ‘special case’ where the building now has a secular modern interior and is used regularly for secular activities and only occasionally as a place of worship.  English Heritage and the Society for the Protection of Ancient Buildings expressed similar reservations, [para 6], viz. the church is a high quality medieval ecclesiastical building of which the nave windows are possibly the most significant internal feature; the introduction of the secondary glazing would significantly detract from the appearance of the windows both in their own right and as part of the wider interior; and the works would involve the inappropriate introduction of modern material (plate glass) into the interior of the building on a scale so far not undertaken.  It was also suggested that insufficient effort had been made to demonstrate the effectiveness of the secondary glazing and there had been inadequate consideration of alternative solutions.

In applying Re St Alkmund, Duffield, the chancellor noted that the proposed work would result in significant harm to the significance of St Michael’s church as a building of special architectural or historic interest, of which the quality of the blind arcading in the nave windows, their size and their fine tracery are noteworthy. However, these were balanced against: the current nature of the building; its infrequent use for regular worship; and its role as community resource, which nonetheless must “pay its way”.

The chancellor concluded that the petitioners had discharged the burden of showing a clear and convincing justification for carrying out the proposals, and the petition was granted subject to conditions.

Other reordering cases on which we have reported include:

Re All Hallows Allerton [2013] Liverpool Const Ct, Sir Mark Hedley Ch: removal of the pews; the covering of the floors; the installation of screens and projectors; proposals in respect of the sound system; and the introduction of a votive candle stand; reported here;

Re All Saints Thornage [2013] Norwich Const Ct, Ruth Arlow Ch: conversion of the existing vestry into a “toilet and tea-point”, together with the provision of vestry facilities within the base of the tower; reported here.

Re St. Stephen Selly Park (1) [2013] Birmingham Cons Ct (Mark Powell Ch); and Re St. Stephen Selly Park (2) [2013] Birmingham Cons Ct (Mark Powell Ch).  The petitioners sought to demolish a parish room extension on the north side of the church, replacing it with a new parish centre extension linked to the west end of with a new glass foyer; reported here.

Re St. Peter Prestbury [2013] Chester Const Ct, David Turner Ch: “church vs civic authorities & assorted complainants” and village politics. Petitioners sought authority to build an extension at the north east corner of the church, for level access works and to provide new paths to the churchyard; reported here.

Re Christ Church Eccleston [2013] Liverpool Const Ct Sir Mark Hedley Ch: Controversial aspects of this successful petition for reordering were the partial removal or shortening of pews and the installation of under-floor heating; reported here.


[1] The draft Measure was being considered the week of the consistory court judgement, and the draft is available as GS 1866.

[2] This photograph is for the benefit of the reader and did not comprise part of the proceedings.

[3] Readers might wish to view the entry on the excellent Norfolk Churches web site, and the Abbey’s own pages, particularly those on “the Abbey Experience”.

[4] An alloy coating that was historically made of lead and tin used to cover steel, in the ratio of 20% tin and 80% lead, although, lead has been replaced with the zinc and is used in the ratio of 50% tin and 50% zinc.

[5] Two from SPAB and one from EH, paras. 22 and 23.[3]

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