Further Consistory Court Judgments: Memorials, Fittings & Chattels, and Rights to Light

Recently notified consistory court judgments are normally included within our weekly round-up, but in view of the number arising, we summarized those relating to reordering in an earlier stand-alone post, and will review separately the important judgement Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches. The remaining judgements are summarized below.

Memorials

Re St. Andrew Fairlight [2014] Chichester Const Ct, Mark Hill Ch.

This short judgement concerned a request for an “open book” design of memorial”, in memory of the petitioner’s brother, which would match an existing memorial in memory of his mother. This type is not permitted under the Diocesan churchyard regulations, and neither the incumbent nor the PCC have the authority to permit its use.  The DAC was divided on the issue, other than in its agreement that a flower container should not be incorporated in the memorial.  The evidence presented to the court yielded no justification for departing from the prohibition on “open book” memorials, but in view of the exceptional pastoral case made by the petitioner, the Chancellor made an exception to the general rule and granted the petition, subject to conditions.

Re Icklesham All Saints and St. Nicholas [2014] Chichester Const Ct, Mark Hill Ch.

This brief judgement concerned a memorial to a six weeks old infant. The artwork on proposed design, including an infant lying in a crib, several stars, and doves bearing olive branches, did not come within the type normally permitted in consecrated churchyards, but “[i]n the tragic and exceptional circumstances of [the] case” the Chancellor stated that he “had no hesitation in the petition.”

Fittings and Sale of chattels

Re St. Cyriac Lacock [2013] Bristol Const Ct, Justin Gau Ch.

This was a further order in respect of a Faculty authorising the sale of a 15th century silver medieval chalice known as the Lacock Cup to the British Museum, Re St. Cyriac Lacock [2012] Bristol Const Ct, Justin Gau Ch. Amendments were made to this earlier faculty to provide for the sale to the British Museum and Wiltshire Heritage Museum jointly, and the enlargement of objects of the trusts applicable to the proceeds of sale.

Re St. Mary & St. Nicholas Lavant [2014] Chichester Const Ct, Mark Hill Ch.

The church of St Mary and St Nicholas, Lavant is Grade I listed dating from the twelfth or thirteenth, and a confirmatory petition was sought for the mounting of picture by a local artist depicting the baptism of Christ in a modern local setting, mounted on the west wall of the church proximate to the font. The imagery and symbolism in the picture is described in paragraph 3, and readers can view the painting themselves hereThe painting had been commissioned from a local artist and installed without a faculty by a previous rector. On the advice of the Archdeacon the picture was taken down and a retrospective faculty sought following a vote of the PCC.

The petitioners stated that “the vast majority of [its] parishioners have become emotionally attached to the painting and have received inspiration from it. As with any work of art it is not unanimously accepted and it is true that some people would rather it was not re-hung.”  There was one objection to the proposed faculty; the DAC did not recommend hanging the picture within the church on account of its size and style; and the Church Buildings Council was also less than enthusiastic, suggesting that it was hung for a 5 year period, and then the position reassessed.

The Chancellor noted that the removal of unlawful furnishings too required a faculty, although he was prepared to overlook this point. The issue before the court was: had the application been made prospectively, would it have been granted.  Where artistic, aesthetic and spiritual concerns are raised, the court must rely upon expert opinion, and on the evidence before the Chancellor, the petitioners failed to discharge the burden of proof in relation to the grant of a faculty. He stated

“Whilst there may well be a significant majority on the PCC and in the worshipping congregation more generally in favour of the picture, the objections on the grounds of size, aesthetics, and suitability for its proposed position in this Grade I church made by [the objector], by the DAC, and a little less harshly, by the CBC all militate against the faculty. The petitioners have failed to satisfy me that the visual intrusion of this unashamedly modern image into this fine historic church can be justified.”

Confirmatory Faculty refused. Phew.

Rights to light (and air)

Re St. Matthew Camberwell [2014] Southwark Const Ct, Philip Petchey Ch.

The Vicar of St Giles with St Matthew, Camberwell petitioned for a faculty for the Southwark Diocesan Board of Finance to sign a deed of release, whereby the Board of Finance would release the rights of light enjoyed by St Matthew’s Church, Camberwell to the extent necessary to permit a housing development by Notting Hill Ownership Limited.

In 2009, Notting Hill Ownership Limited obtained planning permission for a substantial housing development on Coldharbour Lane which “wrapped around” two sides of the church, and “had a (comparatively modest) effect on the natural light available to the church.” In conjunction with its lawyers and a specialist “rights to light” consultancy, the church reached an agreement with Notting Hill Ownership Limited subject to a payment of £20,000 to “the Church”, in this case identified as the South London Church Fund and Southwark Diocesan Board of Finance.  The issue for the court was to how this agreement might to be put into effect.  The question arises as to whether the South London Church Fund and Southwark Diocesan Board of Finance is the appropriate church body’ to enter the deed; and, if it is not, whether any adjustments will have to be made to the deed (apart from the substitution of a different party) to reflect that fact.

With regard to the “right to light”, the Chancellor stated, [para. 8],

“There is no natural right to light. What there can be in appropriate circumstances is an easement of light to a building.  If an easement of light exists, it may be actionable in a neighbour to interfere with it. Thus the background to the agreement in the present case is that the church does enjoy an easement of light with which the development is going to interfere; and that “the Church” is prepared to permit that interference upon payment of a slim of money.

and in terms of the relevant legislation,

“[t]he freehold of a consecrated church vests in the incumbent for the time being.  His ownership is, however, subject to this peculiarity: the incumbent cannot alienate or create an interest in the land without the authority of an Act of Parliament or a Measure of Synod,”

and by virtue of the common law position, [para. 9], the incumbent has no power to grant a deed of release of an easement of light attached to the church, the freehold
of which is vested in him.  However, the Chancellor indicated that he had not encountered any express authority on this point: section 8 (2) Mission and Pastoral Measure 2011 was inapplicable in this case; and likewise section 9 Church Property (Miscellaneous Provisions) Measure 1960 (power to take or grant easements) since this applies to property vested in the incumbent as property of the benefice, and the church and churchyard does not form part of such property.

Consequently, the Chancellor reasoned [paras. 12 & 13]

“if an incumbent does not generally have a power to alienate a church vested in him or derogate from his ownership of the legal interest in the church by granting an easement, he does not have power to grant a derogation from an easement which the church and/or churchyard enjoys whether by way of a right of way or an easement of light.”

and citing Re St Peter’s, Bushey Heath, St Alban’s Const Ct, Newsom QC Ch

“[t]he inability of an incumbent to grant a legal interest in the church or churchyard does not, in practice, cause a problem: rather than grant an easement, the incumbent grants a licence under the authority of a faculty.

He continued,

“Recent practice in this Diocese (and, I believe, in other dioceses) has been for a faculty to authorise the grant of a licence by the incumbent. This is something which occurs comparatively often, the authorisation of telecommunications equipment in connection with the mobile phone network proceeding in this way.

It seems to me that the authorisation of a derogation of a right to light may proceed in the same way: the incumbent licensing the construction on land adjoining the church of a building which will obstruct the light to the church.

The current agreement is, of course, not in the form of such a licence. Accordingly, by this judgment I will simply indicate that I would be minded to authorise the grant of such a licence when presented to me.

Footnote

The “rights to light” was the subject of a Law Commission consultation in 2013 as part of a project which seeks to ascertain whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land[1].

Rights to air

At paragraph 6, Re St. Matthew Camberwell , the Chancellor stated

“ . . . . there is a reference [in the draft agreement to enter a deed of release] in clause 2.1 (ii) to rights of air. I can see from the (electronic) travelling draft of which I have a copy that this is a late insertion, and probably inserted out of an abundance of caution. It seems to me unlikely that any question of rights of air arise, and I would propose that such a reference be deleted in the final version of any deed that is entered into.”

Whilst it is unlikely that the Church was relying upon the legal maxim cuius est solum, eius est usque ad coelum to secure its channels of communications to the Almighty[2], it probably had in mind the tort of trespass when applied to the encroachment into air space of a building’s site tower cranes following Woollerton & Wilson Limited v Richard Costain Limited [1970] 1 WLR 411.  Such considerations might be pertinent to the construction phase(s) of a development which “wrapped around” two sides of a church.


 [1] Following the close of the consultation period, in discussion with Government the Law Commission will review how to take the project forward in the light of consultees’ responses. If the project proceeds to a final report with draft bill, it anticipates that publication will be in late 2014.

[2] . . . . . . and it is perhaps wise not to explore the relevance of “et ad inferos”.

3 thoughts on “Further Consistory Court Judgments: Memorials, Fittings & Chattels, and Rights to Light

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