Assessing “modest harm” in secular and ecclesiastical courts

Judgment on merits of telecoms installation raised issue of applying Duffield criteria for “modest harm”, later resolved by Court of Arches in appeal on Victorian font

The judgment Re St Anne Wandsworth  [2015] Southwark Const Ct, Philip Petchey Ch. concerned the installation of telecommunications equipment within the bell chamber of this Grade II* listed church. The court assessed that the proposed works would result in only “modest harm”, and the chancellor assessed this against the criteria in Re St Alkmund, Duffield [2013] Fam 158, “the Duffield questions”. The application of these was reviewed in the context of three recent judgments in the secular courts, and it was suggested that it might be necessary for them to be revisited by the Court of Arches. However, in its consideration of Re St. Peter Shipton Bellinger [2015], an appeal from the Consistory Court of Winchester, the Court of Arches subsequently concluded that no revision of these guidelines was necessary.

This post considers the three main aspects: Health and other IT issues; Aesthetic implications; and the Assessment of modest harm, first in relation to the judgment in St Anne, Wandsworth; then it reviews the findings of the Court of Arches in Re St. Peter Shipton Bellinger [2015] with regard to the “Duffield questions“.


Re St Anne Wandsworth [2015] Southwark Const Ct, Philip Petchey Ch

Background

A petition by the vicar and churchwardens of St Anne, Wandsworth, and NET Coverage Solutions Ltd, (“NET”), sought permission for: (i) the installation of seven antennae and a 300mm transmission dish within the bell chamber of the church tower; and (ii) authority for the incumbent to enter an agreement for a term of 20 years with NET to permit the installation and operation of the equipment permitted. The main issues before the court were addressed in the Statement of Need: the commercial issues concerning the agreement with NET; visual and other impacts of the installation in the “pepper pot” tower; reputational issues associated with the installation of telecommunication equipment. The chancellor noted “it is … not unusual for churches to permit telecommunications equipment to be installed in their buildings, although not all choose to do so”, [4].  

Health and other IT issues

Government and other national bodies have made relevant statements on these and related issues:

  • Code of Best Practice: Mobile Development in England, [2013]. This was developed by a working party of the telecoms industry, DCLG, DCMS, Defra, English Heritage, National Parks England, and Planning Officers Society. [St Anne’s considered as “amber” under its “traffic light” assessment scheme];
  • National Planning Policy Framework, paragraph 42.  “Advance high quality communications infrastructure is essential for sustainable economic growth. The development of high-speed broadband technology and other communications networks also plays a vital role in enhancing the provisions of local community facilities and services.” ;
  • National Planning Policy Framework, paragraph 46. “Local planning authorities must determine applications on planning grounds. They should not … question the need for the telecommunications system, or determine health safeguards if the proposal meets International Commission Guidelines for public exposure.”
  • International Commission Guidelines. When these were considered by the ecclesiastical courts in In re St Margaret, Hawes and Holy Trinity, Knaresborough, [2003] 1 WLR 2568, the chancellor stated:

“… in the absence of compelling evidence of a real risk to human health as a result of transmitting radio waves up to the levels set by the UK Government in their adoption of ICNIRP [International Commission on Non-Ionizing Radiation Protection], guidelines, it wold be wrong to adopt lower guidelines for a base station just because it happens to come under the jurisdiction of the consistory court in addition to planning requirements.”

The  statement in In re St Margaret, Hawes and Holy Trinity, Knaresborough was expressly approved of by the Court of Arches in In re Emmanuel Church, Bentley, [2006] Fam 39, para. 50, which added:

  • This applies with equal force to the suggestion that a faculty should be refused because of concern (however genuine) about the possibility of a health risk which cannot be substantiated any way by evidence”

The proposed installation at St Anne’s would meet the ICNIRP guidelines. Nevertheless, an objection to the scheme for St Anne’s came from two parishioners, who referred the Chancellor to the views of Dr Keith Baxendale, a retired neurophysiologist; his petition to the Scottish Parliament for “a review of health issues and planning guidance in respect of telecommunications masts” was turned down as ministers could find “no compelling evidence” that they represent a health risk. Although the St Anne’s CofE Primary School was just outside the 250m limit specified by the CoP, the Chancellor directed that the Head Teacher and Vice-Chair of Governors be cited under rule 8.2 Faculty Jurisdiction Rules; however, he was not afforded the courtesy of a response to the citation.

The court noted that with regard to safety: none of the existing installations tested since 2001 had exceeded 0.005% of the specified radiation limit, [23]; and the licence agreement included a number of clauses specific to the operation and monitoring of emissions, [24]. In fact, the protection so given would be better than that for equipment erected under the secular scheme, [25]. With regard to the potential transmission of pornographic and objectionable material, an issue not otherwise raised, the Chancellor cited In re St Peter and St Paul’s Church, Chingford, [2007] Fam 67, and was satisfied that the licence agreement included the provision of appropriate safeguards, [27]. [Top]

Aesthetic implications

The DAC, local planning authority and the Georgian Group had all examined the proposals and found them unobjectionable. However, the DAC advice indicated that the works would have some effect on the Grade II* building and English Heritage suggested that, to a degree, this would be harmful. Nevertheless, the aesthetic aspects of the proposed installation remained a consideration when balancing the potential harm and benefit, [28]. With the “pepper pot” style of the church tower, it was possible to see daylight through both levels of the tower, and the installation of the proposed antennae and transmission dish would obstruct such views as there are through the lower level of the tower, [i.e. given building developments and a protected tree in the churchyard], [28-30]. [Top]

Assessment of modest harm in Re Wandsworth St Anne

The petition was considered against the “Duffield questions”[1], and with regard to Question 1 [i.e. whether the proposal would result harm to the significance of the church as a building of special architectural or historic interest], the answer was in the affirmative, although the harm would be modest and would only affect part of the church, [36]. He noted that the benefit that flows from the proposals would principal be a financial one, which at the present time would involve no cost to the church. There would also be “local benefits from improved mobile and internet reception and the benefit to the national economy(?)”, [37].

In balancing this harm against the financial and other benefits to the church and the neighbourhood, and noting that there was still a strong presumption against even modest harm, the Chancellor referred to three recent cases in the secular courts: East Northamptonshire DC v SCLG [2014] EWCA Civ 137; [2014] 1 P&CR 357; R (o.a.o. The Forge Field Society v Sevenoaks District Council and West Kent Housing Association [2014] EWHC 1895 (Admin); and Ecotricity (Next Generation) v Secretary of State for Communities and Local Government, [2015] EWHC 801 (Admin) (High Ct).  

The Chancellor observed that although these cases had arisen within the secular jurisdiction, they had relevance in the ecclesiastical context, and reconciled the difficulty of applying the strong presumption against harm in respect of harm that is modest, he stated, [45],

“45. … the correct way to approach the matter is to reflect that although the strong presumption remains proportionately of equal weight whether the harm be modest or severe, its quantum is much less when applied to modest harm. The benefits on the other hand, are of a fixed quantum. Accordingly the strong presumption is more easily outweighed by the same amount of benefit where the harm is modest … in the present case … the modest harm is properly outweighed by the strong benefits”

It was noted [46] the in In Re All Saints, Evesham, Worcester Const Ct, Fookes Dep Ch had suggested obiter that the Duffield guidance might need to be revisited in the light of the secular authorities, and the Court of Arches would soon have an opportunity to do so, [i.e. Re St. Peter Shipton Bellinger [2015], considered below]. [Top]

Judgment, Re Wandsworth St Anne

The Chancellor directed that a faculty should issue on the basis of the guidance in Duffield. In accordance with the advice of the DAC, this made was conditional on the antennae being painted black, and (in accordance with the planning permission) should be protected by black pigeon netting. [Top]


Re St Peter Shipton Bellinger [2015] Court of Arches

This is summarized on the Ecclesiastical Law Association web site as:

“This was an appeal by the Victorian Society against the judgment of the Chancellor of Winchester Diocese of 12 March 2015, granting a faculty to replace the existing, Victorian font in the church with a new font made of Purbeck stone … The Court decided that the Chancellor had erred and acted unfairly in his purported application of the written representations procedure, and that his judgment on the merits was flawed by several errors of law. Accordingly, the Court ordered that both his judgment and the resulting faculty be set aside.”

In fact, the Court of Arches stated [4], “As the following factual summary indicates, in the handling and determination of this case at every level almost everything that could go wrong did go wrong.” Irrespective of this, and of the fate of this “handsome fixture” (according to the Victorian Society) reviewed here, the Court addressed the suggestions of the deputy chancellor in in In the matter of All Saints with St Lawrence, Evesham (unreported, 14 October 2015) paras that the Duffield guidelines needed alteration to reflect the interpretation in East Northamptonshire, [43]. The Court prefaced its comments with the statement

“[40]. There is a final matter which we need to mention. Its resolution is not a matter which affects the outcome of this appeal, nor is it likely to be critical to any re-determination.”

After reviewing South Lakeland District Council v Secretary of State for the Environment [1992] and East Northamptonshire DC v SCLG [2014], the Court stated:

“[46]. Accordingly, even if section 16(2) of the LBA [the Planning (Listed Buildings and Conservation Areas) Act 1990] were directly applicable to the exercise of the faculty jurisdiction (which it is not), there would be no need to change the wording of the Duffield guidelines. Further elaboration of Question 1 and 3 is not needed. Nor do we see any merit or need to incorporate material from Question 5 into Question 1, as suggested by the deputy chancellor. Duffield guideline 2 properly reflects, in the context of the faculty jurisdiction, the final quoted sentence from Lord Bridge’s judgment in Lakeland, set out in para 45 above.

[47]. So far as the need alleged by the deputy chancellor to modify Question 3 and 4 “to reflect that it is a statutory requirement that particular weight should be given to the desirability of avoiding harm to the listed building”, we consider that the so-called statutory requirement arises not at Questions 3 or 4, but rather in Question 5, and is already met by the express reference in Question 5 to “a strong presumption against proposals which will adversely affect the special character of a listed building”, which, as we have just explained, arises precisely because “the desirability of preserving the character or appearance of the area is a consideration of “considerable importance and weight””


Comment

Other recent cases in which the application of the Duffield guidelines has been applied include Re St. John Knypersley [2015] Lichfield Const. Ct, Stephen Eyre Ch. and  Re St. Andrew Shifnal [2015] Lichfield Const. Ct, Stephen Eyre Ch. both of which were reviewed here. However the recent judgment of the Court of Arches states unequivocally the there is no present requirement to revisit the Duffield guidelines.

[Top]


[1] “For those chancellors who would be assisted by a new framework or guidelines”, in paragraph 87 of Re St Alkmund, Duffield [2013] Fam 158, the Arches Court suggests an approach based upon asking five questions and subsequent considerations of the issues uses the same numbering of these questions. Although the judgment in Re St Anne, Wandsworth includes these five questions, it refers to them differently, e.g. paragraph 33 (3) being referred to as “question 3”, not Duffield question 1. For consistency, this post uses the numbering in Duffield, which in most cases has an equivalence of “n – 2” to the judgment in Re St Anne. ]

Cite this article as: David Pocklington, "Assessing “modest harm” in secular and ecclesiastical courts" in Law & Religion UK, 9 December 2015, http://www.lawandreligionuk.com/2015/12/09/assessing-modest-harm-in-secular-and-ecclesiastical-courts/

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