Consistory court evidence or “Call My Bluff”: Episode 2

The second of two posts on information submitted as evidence to consistory courts

In the first of our posts, we considered the role of the PCC in the preparation and presentation of information to be submitted to the court; also the importance of consistency both in relation to the petition and more broadly to its previous policies and decisions. The following discussion considers issues beyond the immediate sphere of the incumbent and PCC, and the courts’ approach to expert witnesses, the amenity societies, public petitions and others deemed to have an interest in the proceedings. 

“Expert” witnesses

We considered the role of expert witnesses in our recent post Charlie Gard: the wider implicationswith particular reference to Dr Hirano, who was independently instructed by Charlie’s parents. Whilst the context was different, the criteria relating to a witnesses’ expertise are pertinent to the present discussion: [i] the person submitting the evidence must have the necessary expertise, which Dr Hirano apparently had; and [ii] the evidence he/she submits must have direct relevance to the issue under consideration by the court, on which Francis J was not convinced. The latter was based, in part, on the untried nature of the proposed techniques, but also on the lack of involvement of Dr Hirano with the legal and medical developments of the case until quite late in the proceedings.

With regard the necessary expertise, the courts are likely to probe into the alleged expert’s actual knowledge. The case Re St Leonard Watlington [2016] ECC Oxf 3 concerned the unexciting issue of replacing of five cast iron downpipes and associated hoppers on a Grade II* listed church with rainwater goods manufactured in high density polyethylene (HDPE). The proposed replacement was based upon a document produced by Mr Raymond Jackson, a member of the PCC fabric committee “and a Chartered Engineer”. Whilst the court accepted that Mr Jackson had a “professional, scientific background”, it was unable to attach a great deal of weight to his evidence since he did not say that this particular subject was within his area of expertise [33]. [The CEng qualification encompasses a wide range of engineering disciplines].

In Re Halifax Minster [2016] ECC Lee 6, an uncontroversial petition “to regularise a regrettable mistake [on illegal disposal of kneelers]” was “strenuously resisted on…fanciful grounds” by Mrs Mary Crossley in her letter of objection in which she included the legal Opinion of Dr Andrew Buck. He asserted “I am unable to find legislation which would allow a faculty to be granted retrospectively” on which the Chancellor commented “[he] seems to be unaware that the confirmatory faculty is a familiar creature of ecclesiastical law”. Chancellor Hill describes the legal Opinion as:

“[11]. …a curious document making reference to Hillsborough, Alan Turing, and Oliver Cromwell, as well as referring to Euodia and Syntyche. It asserts that if the incumbent had not acted so hastily the present impasse would not have come about. It recommends that Mrs Crossley should pass the Opinion to the vicar and churchwardens, and suggests that reconciliation will follow”

He found that there was nothing in Dr Buck’s Opinion that constituted a ground for opposing the grant of a confirmatory faculty, and it seemed to conclude by asserting (incorrectly) that applying for a faculty is unnecessary.

Part 1 of this post commented on the inclusion by a PCC of evidence from independent arboricultural consultants that was fatal to its case, Re St John the Baptist Knaresborough [2017] ECC Lee 4. However, the petitioners subsequently submitted a report from a tree expert employed by the borough council, which indicated that the tree was basically sound, showed “excellent signs of vitality”, and a Quantified Tree Risk Assessment had suggested that risk was at a tolerable level. Acceptance of the views of one expert against those of another is problematic for a court where it has itself has no particular qualification in the issue in question. In this case, it appears that the results of the Quantified Tree Risk Assessment provided supportive assurance in the conclusions of the council’s expert.

In some cases, expert opinion is required post facto, as in Re St. John the Baptist Boldre [2017] ECC Win 1. The petitioner challenged the decision (and consequent action) that it was not possible to bury her mother in a grave adjoining that of her father, since this would harm the roots of a nearby tree [4]; these were visible when the grave was opened up for burial.  She subsequently sought advice from the Local Planning Authority and an arboriculturist, both of whom were in agreement that it would be possible to dig an adjacent grave without harm to the tree [5]. Although the initial objection had been overruled, it was nevertheless necessary for the consistory court assess whether there were “exceptional circumstances” to warrant the exhumation, and for the Local Authority to approve the severing of the tree roots.

Another area in which petitioners frequently seek the advice of experts is in relation to the use of church buildings for the transmission of telecommunications, on which we have posted two summaries: Wi-Fi in churches – health effects, courts’ jurisdiction and locus standi, (150108), and Wi-Fi in churches – evidence, system security and commercial considerations, (150113). The recent case of Re St. James Kidbrooke of which we summarized the progress herehere, here and hereAt the consistory court hearing Re St James Kidbrooke [2016] ECC Swk 13, the Chancellor stated:

““… in the light of In re Bentley Emmanuel Church, Bentley it will be seen that, because Miss Lyrae [the party opponent] did not call expert evidence, her basic case – that a faculty should not issue because of the risk to health – was doomed to failure. This is because once it has been established that the installation will be operated in accordance with the ICNIRP guidelines, the basis for refusing a faculty without the benefit of expert evidence to support that refusal does not arise. It is clear in this case that the installation will be so operated”.

Some of those objecting to telecommunications installations in churches state that they are hypersensitive to  electro-magnetic fields, i.e. “electro-hypersensitive”. However, this is a condition which is not recognized by mainstream medicine and tends to be self-reported; it is therefore difficult for party opponents to produce evidence acceptable to the courts, or indeed expert witnesses as in Re St James Kidbrooke. In Re All Saints Sharrington [2014] Norwich Cons Ct, Ruth Arlow Ch.,  the objections focused on the health risks to a specific person: here the evidential value of a letter from the consultant neurologist was “very limited”, principally because it was so heavily edited and “at no point in either of the medical reports is any diagnosis provided or any medical opinion expressed which evidences any link between the complainant’s symptoms and the type and strength of electromagnetic radiation produced by WiFi masts”, [See footnote [1] to the post on this judgment]

Public petitions and supporting evidence

Public petitions

It is not uncommon for those who object to a petition to organize a public petition. The courts’ approach to such documents is summarized by Chancellor Ruth Arlow in Re All Saints Filby [2014] Norwich Cons Ct, Ruth Arlow Ch.  where she noted:

“…in my view, public petitions can rarely, if ever, hold great evidential value before this Court. Public petitions will usually, at best, demonstrate no more than a general sense of public concern or dissatisfaction to the Court”.

An example of the latter was referred to by the court in Re Holy Trinity Kimberley [2016] ECC S&N 1

“[46]…These proposals are very widely supported by both the church and the wider community, although opposed by a few strong voices. The community petition with 200 signatures evidences this and the letter from Mr Lambton provides a particular example…”

Acting Chancellor Jacqueline Humphreys refuted the allegation that the petition was misleading, and stated:

“[56]. …It reads “Holy Trinity Refurbishment Project: We the undersigned support the project to refurbish Holy Trinity Church and provide better community facilities11• There is an opportunity to indicate if the person signing is a current user of the church hall. It is clear that this petition refers to the whole project of selling the church hall and transferring the community facilities to the church. This is particularly if taken in the context of the widely available leaflets and the long term display of the plans.

The consistory court is not the intended recipient of this petition. It was not referred to in any of the petitioner’s paperwork, and was only mentioned in passing in evidence. I infer that the intended audience for this petition is the local planning authority in respect of the planning permission application for the development of the site of the church hall…”.

Other evidential requirements

A summary of the courts’ evidential requirements is given in Chancellor’s conclusions to Re All Saints Postwick.

“The consistory court, like any other court, can only come to conclusions on evidence and proof. The views of others, however genuinely held, which do not take the matter under consideration beyond the bounds of the realm of anxious possibility only, can never be substituted for evidence and proof which is positive in nature and capable of evaluation.

In this case the views and reports produced by the Objectors from many different sources were not available for cross examination or evaluation … The Court concluded that it preferred that of the live evidence of experts in their field, whose testimony the Court was able to examine and evaluate, and went on to accept.”

This was echoed in was highlighted in Re St Peter and St Paul’s Church, Chingford, [2007] Fam 67 where the court noted:

“[20]. [The Respondent] applied for permission to introduce a large number of extracts from documents and various articles from journals and newspapers. This Court pointed out that newspaper cuttings are not acceptable by themselves as evidence in an ecclesiastical court, nor are extracts from publications which are unsupported by oral evidence. Save in respect of two official public documents, his application was refused.”

Locus standi

Rule 10.1 of the Faculty Jurisdiction Rules 2015 is quite prescriptive in its definition of an “interested person” who “may object to the grant of a faculty in respect of all or some of the works or other proposals to which a petition”. Nevertheless, the list includes:

“10.1 (1)(h) any other person or body appearing to the chancellor to have a sufficient interest in the subject matter of the petition”, and

“10.1 (3) If any question arises as to whether a person is an interested party it is to be determined by the chancellor”.

In the recent case of Re St. Nicholas Great Kimble [2017] ECC Oxf 3, two individuals submitted letters of objection to the reordering, but they did not meet the definition of “interested person” in rule 10.1(a) or (b), and their letter was not taken into account;  although both had relations buried in the churchyard, neither any longer lived in the parish or has their name on the electoral roll.

A more complex issue faced Chancellor in Re All Saints Postwick [2011] Norwich Cons Ct, Paul Downes Ch: objections were registered against the installation of an IT facility by a number of different individuals and also by a charity, ElectroSensitivity UK, an organisation devoted to protecting the interests of those who describe themselves as sufferers of electro-sensitivity. The Chancellor stated [emphasis added]:

“Only one of the persons registering dissent in person was a parishioner of the church, but the remaining objectors could not be said to have any specific interest in the application. Each had submitted a ‘general interest’ in the effect of electro-sensitivity on the population as a whole, but not in relation to any church in the Diocese, including the present one, nor indeed any church in the country in general.

It is likely that there will be further similar applications relating to other churches in this Diocese, and whilst this cannot be said to be in any way a representative action, since not all the other applicants are in common agreement, or indeed as yet known to the Court, nevertheless the Court took the view that the matters to be decided would be reflected to a greater or lesser extent in a number of different situations. It would be convenient, therefore, in spite of there being some doubt about the legality of the ‘interest’ of those objecting, to treat their objections ‘de bene esse‘, as having possible relevance beyond the scope of the present application.”

Amenity Societies

The evidence provided by the national amenity societies is an important component in the determination of the impact of proposed amendments to a church. This was emphasized by the  Arches Court of Canterbury in In re St Peter, Shipton Bellinger [2016] Fam 193 [at 37]

“Faculties involving alterations to listed churches require particular attention from chancellors because listing is proof, save in the most exceptional cases and then only upon compelling expert evidence, that the building is of national importance”,

and at paragraph 34,

“ … on ordinary common law principles the weight given to an objection may be increased by the status and expertise of the body making the objection …. This does not mean, of course, that in every case an objection from a body such as the Victorian society will prevail …. But it does mean that a statutory amenity society’s objections should never be simply brushed aside.”

See, too, In re St Mary the Great and St Michael, Cambridge [2017] ECC Ely 1 at [21]. The same consideration applies to the views of Historic England, the Church Buildings Council and the local planning authority.

Nevertheless, such advice can be problematic when an assessment is delivered based upon the agenda (i.e. aims and objectives) of the society concerned rather than on their professional opinion. This was clearly stated by Chancellor John Gallagher in Re St John the Baptist, Penshurst [2014] Rochester Const Ct., in which he was critical of the “highly partisan” evidence given by the expert witness for the Victorian Society, of whom he stated [emphasis added]:

“[30]. …it was clear from the thrust of his evidence, and the manner in which it was given, that he had no interest in the wants or needs of the church. Effectively, the only consideration for him was the preservation of the [Bodley and Garner] chancel screen…“[c]ourts these days expect and require experts to be free of bias and to be unaffected by the effect upon their clients of the exigencies of litigation. This, I regret, could not be said of [the Victorian Society witness]“.

Most churches have undergone many changes during their existence, and it is important for the amenity societies to consider any changes holistically with this in mind. The fabric of St Michael Cumnor almost entirely mediaeval with various phases of work to the current structure beginning in the 12th century and ending in the 15th century; other than the porch, (and the font) there were no material alterations to the church in the Victorian period, Re St. Michael Cumnor [2016] ECC Oxf 4. On the objection raised by the Victorian Society concerning the extension and alteration of the porch (added 1857-8), the Chancellor commented:

“[29]. …the points advanced by the Victorian Society are almost entirely subjective. The statement that it is “a handsome addition to the main façade” which “elegantly marks out the entrance to the building” is really no more than an assertion, and one that is readily contestable. There is no evidence that the porch is the work of a Victorian architect of any note; nor is there anything else about its provenance which contributes to the church’s historic significance. And it is not suggested that the porch is of particular interest from an architectural point of view…”

[…]

32. I accept that the Victorian Society has particular expertise which it can helpfully bring to bear in assessing the impact of proposals on listed buildings which are Victorian or which have significant Victorian features. But in the present case I do not find the views expressed by the Society carry much weight. The preponderance of opinion from the bodies which are charged with the preservation of built heritage is contrary to that of the Society. While a preponderance of opinion can be wrong, there is nothing in the Society’s representations in this particular case – which…amount only to a subjective view of the value of the porch – to call that preponderance of opinion into question”.

The Worshipful Mark Hill QC expressed a similar opinion in Re Christ Church Upper Armley  [2017] ECC Lee 5 [at 24]. However, there are occasions on which there is less unanimity between the various amenity societies,  for example Re St Peter Welford-on-Avon [2016] ECC Glo 1. in which the Chancellor noted  [86] that there was “considerable divergence of opinion amongst modern experts, on whether or not the pews were reasonably ascribable to Sir George Gilbert Scott”. Five pages are devoted to the historical significance of the pews in the nave and aisles, and the possible involvement of Sir George Gilbert Scott [85 to 90], following which the Chancellor said:

“[90]. …although I agree that the pews probably date from around the time of the 1866 reordering, and are about 150 years old, I cannot conclude that they were designed by Sir George Gilbert Scott nor that they were made to a design specified by him. There is an alternative possibility that the current pews date from after the fire in 1884 and have no connection with Sir George Gilbert Scott. In either event, I am fully satisfied, on the balance of probability, that the designs ‘do not betray his hand’”.

He also noted that had two of the experts been aware of the information in the 1884 newspaper article [the Stratford upon Avon Herald dated the 19th December 1884, referred to at [85(2)] that the original plans ascribable to Scott were subsequently modified and carried out by others, “they would have been less dogmatic on attribution, if they had known about the apparently cheaper modified scheme” [91].

Church Buildings Council Guidance Notes

The Church Buildings Council (CBC) has published a wide range of valuable guidance on issues ranging from Accessibility to Working at Heights. A footnote in recently-issued CBC Guidance carries the statement [emphasis added]:

“This guidance is issued by the Church Buildings Council under section 55(1)(d) of the Dioceses, Mission and Pastoral Measure 2007. As it is statutory guidance, it must be considered with great care. The standards of good practice set out in the guidance should not be departed from unless the departure is justified by reasons that are spelled out clearly, logically and convincingly“.

In Pews vs Chairs: Application of CBC Guidance, and later in The last word on the “pews vs chairs” debate…, we addressed this footnote in relation to the binding nature of CBC guidance, following recent court considerations. Noting the distinction between guidance issued under statutory authority and that having statutory authority per se,  we concluded that there was little doubt the Guidance is “statutory guidance”, since it was produced under S55 1(d) Dioceses, Mission and Pastoral Measure 2007; however, it was unlikely to have the same binding effect as a statutory provision or a statutory instrument would have. CBC Guidance is “quasi-” or “soft-law, issued by a body which itself has statutory status to produce such documents as it deems are necessary, but which are themselves persuasive in nature rather than mandatory.

However, although there is no direct line of authority to Parliament/Synod within the Dioceses, Mission and Pastoral Measure 2007, under rule 9.6 Faculty Jurisdiction Rules 2015 there is a mandatory requirement for a Chancellor to seek the advice of the CBC on the proposals that fall within paragraph (1) and, in other cases, an optional provision under rule 9.7 whereby a chancellor may seek the advice of the CBC (via Form 12) on the specific issues on which he/she thinks that this would be of assistance.

The operation of CBC Guidance notes in practice was reviewed by Chancellor Bullimore In Re All Saints Higher Walton [2017] ECC Bla 9 in which he said [our emphasis]:

[18]. These three decisions [Re Holy Trinity Long Itchington [2016] ECC Cov 7, St Mary Magdalene, Ashton upon Mersey [2016] ECC Chr 1, and Re St Matthew Salford Priors [2016] ECC Cov 4] do demonstrate that the consistory courts have been ready to weigh the petitioners’ arguments against the content of the Guidance Note, and not simply treat it as a ‘trump card’. I fully accept that in individual cases, decisions will sometimes go one way and sometimes the other. [In relation to the Guidance on seating] The [Church Buildings Council]  also seems to accept that with its use of the phrase ‘generally advocates’ un-upholstered seating in the Guidance, (although it gives no indication what factors or circumstances may lead to the acceptance of the installation of upholstered furniture in a particular case)”.

Footnote

This post is based upon reported judgments and the assessment of the respective Chancellors &c; we would not presume to elaborate on these. Readers, however, may reach their own conclusions on the veracity or otherwise of the submissions presented in the above cases.

Cite this article as: David Pocklington, "Consistory court evidence or “Call My Bluff”: Episode 2" in Law & Religion UK, 7 September 2017, http://www.lawandreligionuk.com/2017/09/07/consistory-court-evidence-or-call-my-bluff-episode-2/

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