Ecclesiastical court judgments – September

Review of the ecclesiastical court judgments during September 2017,

September’s consistory court judgments have addressed the areas listed below. Two petitions were sought by a single churchwarden within the church concerned: Re St. Michael & All Angels Ashton-on-Ribble was initiated during a vacancy and sought permission to remove a lectern, which in the churchwarden’s opinion was taking up space; and Re St. John Out Rawcliffe  in which the churchwarden assumed a new stained glass window could be installed on the basis of the DAC’s recommendation. In Re St. Leonard Ryton on Dunsmore, the Deputy Chancellor approved a memorial which did not conform to the Churchyard Regulations, and consideration was given to the use of Glass Reinforced Plastic (GRP) for replacement of rainwater goods in Re St John the Baptist, Saints Lawrence and Anne, Knowle

We have also included information on recent Cathedrals Fabric Commission Applications. Finally, there is an application for an permit from the Environment Agency and links to other posts relating to ecclesiastical law.


Reordering, extensions & other building works

Other building works, including re-roofing

Re St. John Out Rawcliffe [2017] ECC Bla 11 The organist at the Grade II church sought a faculty for the installation of a stained glass window in memory of her late husband:

“[9]. …The new window is intended for the easternmost space on the south side of the nave beside the organ, which will be likely to impede its visibility, but as the donor is the organist of the church, the proximity of the window to that position will doubtless be a comfort…”

The design was not consistent with the other stained glass in the church, and strangely, the Statement of Needs included “nothing about [the deceased] but contends the new window will stop draughts and keep heat in” [10]. The Chancellor observed that these “are apparently current problems, but do not need to be solved by the introduction of a stained glass window” [11]. The window was recommended in the DAC’s Notification of Advice, and the petitioner took this as conferring authority for the work, despite a clear statement on the document that it did not.

For  the introduction of an article of “special artistic interest” into a church, Rule 9.6 FJR 2015 requires the Chancellor to obtain the advice of the Church Buildings Council (‘CBC’), if it is not already available. The CBC was of the opinion that the proposed design [11] would not sit well with the other stained glass windows, which depicted single figures in a more traditional design.

The Chancellor’s initial view was he would have to consider the introduction of a memorial window in the same way as an application that for a memorial plaque; relying on the Court of Arches decision in Eartham, St Margaret [1991] WLR 1129, and the discussion in Mynors: Changing Churches Bloomsbury 2016 at paragaphs13.7.3 and 13.7.5, “the individual in question would need to have made some outstanding contribution to the life of the church, the community or the nation, before the privilege of being allowed a memorial could be permitted” [17].

Although it was not possible to satisfy the Eartham test, the Chancellor concluded that the overall impact of the information provided justified approval of the application in this regard. It appeared to him “there is something unattractively elitist about the test, whatever its undoubted merits in limiting the number of applications for memorials, and that the vast number of Christian people who live out their lives quietly and faithfully are being devalued as a consequence”. He remained doubtful that there should be the same approach to a window in memory of another, and a memorial plaque or tablet, in the way Chancellor Mynors suggests. It seemed appropriate that the deceased was commemorated as proposed [19-20].

A faculty was granted, although the Chancellor noted the need for future applicants to “up their game” to address the deficiencies in the application that were identified by the CBC, with reference to its Guidance Note: New glass for your church which includes reference to further its guidance Commissioning new art for churches.  [Link to judgment] [Back] [Top]

Re St John the Baptist, Saints Lawrence and Anne, Knowle [2017] ECC Bir 1

The long time-line of this petition was outlined in paragraph 3 (a) to (t): in 2009, stolen lead rainwater goods on the north side of the church were replaced with similar materials, which in turn were stolen in 2011 form the Grade I church; in 2012, in view of water ingress and damage to internal walls, the church sought approval for the immediate installation of GRP rainwater goods. The Diocesan Advisory Committee and English Heritage were unhappy about the use of GRP on a Grade I church; in July 2012 the Deputy Chancellor granted a temporary licence for GRP rainwater goods, subject to conditions. GRP rainwater goods were installed and the Church subsequently applied for a confirmatory faculty [4].

The planning authority, SPAB and the Church Buildings Council objected to GRP, and positions of the petitioners, the DAC and the heritage bodies are listed in paragraphs 7 to 9. All are agreed that it is inappropriate in the circumstances that the rainwater goods should be replaced using lead. In addition to the guidance in Re St. Alkmund, Duffield [2013] Fam 158 on whether the installation of GRP rainwater goods (and their continuation) would affect the special character of the church, the Chancellor looked for help in decisions made by Chancellors in other Diocese. He noted that there are a number of decisions in relation to GRP, but all of them appeared to be dealing with the question of replacement of a lead roof with a GRP roof. However, he paid particular attention to the judgment in Re All Saints Leamington Hastings [2014] Stephen Eyre Ch. (Coventry) in which included a detailed analysis of previous decisions and particularly that of Mynors Ch. in Re St John the Baptist, Bromsgrove (2012) 14 ELJ 319. However, it was possible to distinguish between the two cases as in Re St John the Baptist, Bromsgrove, the replacement material on the roof was not visible and the Chancellor did not consider a range of replacement materials [10].

[Note: In Re St. Leonard Watlington [2016] ECC Oxf 3, a Faculty was refused for replacement of five cast iron downpipes &c with high density polyethylene (HDPE) on a Grade II* listed church. Historic England, CBC and DAC each rejected the petitioners’ case on the benefits and durability of HDPE. The issue of durability is common to both cases; in the instant case, the uniformity of the patina developed on GRP was raised by the Planning Inspector].

The Chancellor concluded [12] that it was not necessary that the rainwater goods should be of lead. However: metal (be it cast iron or stainless steel) will have a longer life expectancy than GRP and is a preferable alternative to GRP; the suitability of GRP is still being assessed and the views of the Heritage Bodies as to the appropriateness or otherwise of it as a material in listed buildings may be under review and may change [13]; notwithstanding the patina of the GRP rainwater goods presently installed, their limited extent had not affected the external appearance of the building, in planning terms, to a material degree [14]; the risk of theft of cast iron or stainless steel rainwater goods is low and that no incident of theft of these materials occurred in the Diocese of Birmingham in the 7 years prior to their advice being given [15];  the presence of the GRP goods does not at the present time adversely affect the appearance of the Church, given the fact that there are at least three other materials used on the building [16].

The Chancellor granted an interim faculty, allowing the GRP rainwater goods to remain for a further 5 years, after which they should be replaced with metal, if the general advice of the heritage bodies has not changed by the end of that period. [Link to judgment] [Back] [Top]

[2016 Judgments] [2015 Judgments] [2014 Judgments]


Church Treasures/Sale of Paintings &c/Loans

Re St. Michael & All Angels Ashton-on-Ribble [2017] ECC Bla 10* Chancellor John Bullimore refused to grant a faculty for the removal of a wooden lectern; the petition was brought by (the sole?) churchwarden during a vacancy, and was based upon the rationale that in his view, it was unlikely to be used again, and was taking up space. The Chancellor noted:

“[2]. Unfortunately, the inscription (the most interesting aspect of the lectern[1]), or even the name of the deceased (the Rev John Park Haslam), was not mentioned on the Public Notice, otherwise it might have aroused some greater attention”.

The inscription stated that it had been given by a significant benefactor of the church in memory of her brother, who was a priest, but who had spent no part of his ministry in the parish. The Chancellor commented:

“[7].  All this [i.e. the background to the lectern] may be of no interest to [the churchwarden] or the congregation of St Michael’s but it does show there is some (perhaps limited), historical interest in the item, and it has obviously had a long connection with the church when it will have been in regular use, and it has some artistic merit as well. All very tedious if you find no interest in local history!

Although an enquiry was made of the Victorian Society, (which elicited no reply), this is because [the churchwarden] thought [incorrectly] the lectern appeared Victorian….

[8]. Historic England declined to offer any comments when consulted”.

The Chancellor considered whether the lectern could be regarded as a “church treasure”, and whilst not necessarily an item of special historic or artistic interest, he did not think that could simply be asserted or assumed; he therefore asked that the Church Buildings Council consider the question and offer any advice it thinks fit [10,11]. He agreed with the CBC Building Officer’s view that the lectern’s ‘”level of significance…….. is below the grade of ‘church treasure’ but is nevertheless of interest” [italicization in original; also infra]; he further commented:

“[12]…not every item that it is proposed should be removed from a church, is to be reckoned a ‘church treasure’, a category not defined in Wootton or elsewhere. Chancellor Hill QC has made this distinction in a number of cases, for example, in Flockton, St James the Great [2016] ECC Lee 4. I am of the view therefore that there is no need for any hearing in this case”.

Significantly, the CBC indicated that it was previously asked in 2007 to consider the lectern when it was proposed for sale; it advised the lectern should be omitted from the list of items to be sold, stating “as a good furnishing that has a long association with the church, this should be retained. The Council recognised it was redundant in terms of use but deemed it to be a high quality item and of interest as a memorial” [13]. In his discussion of the facts, the Chancellor made three important observations [16]:

i) The parish apparently accepted the advice of CBC several years ago, and did not press for a sale. Nothing, as far as I can tell, has changed since then, so although that previous decision does not preclude an application for disposal now, there is no new factor to be considered.

ii) The lectern was given to St Michael’s over 90 years ago, and has been in the church since then. It must have been in regular use for many years, until practice changed, and it was no longer needed. Although Mr Haslam never served in the parish, the donor was a generous benefactor to the town and to this church. That seems to me to be the strongest connection, not with the man commemorated, but with the donor.

iii) I have no dimensions for the item, but being generous, it can hardly take up a square metre of space. Although it is said to be taking up room, its removal is not going to release a significant area for any other purpose.

He concluded that there is little to be gained by its disposal, and if it were to be taken out of the church at the moment, there is no indication that it would ever be linked up with a parish where Mr Haslam served during his ministry.  The Chancellor refused to grant a faculty, but with liberty to apply for re-consideration until 31st May 2018. This proviso placed the onus on the churchwarden to identify a relevant parish that would accept the lectern as a gift, and petition for a faculty. However, the Chancellor pointedly noted the he “would want to be assured that the parish priest and PCC would like to receive it; this is not something simply to be agreed with a warden, perhaps during a vacancy”. [Link to judgment] [Back] [Top]

[2016 Judgments] [2014 Judgments] [Top]


Churchyards and burials

Churchyard Regulations

Re St. Leonard Ryton on Dunsmore [2017] ECC Cov 2. The petitioner wished to introduce into the churchyard a polished dark grey granite memorial in the shape of a traditional Gypsy caravan. On the front would be a representation of the double doors of such a caravan with blank windows and the doors flanked on either side by the engraved representation of a lit hurricane lamp. An inscription would be placed on the left-hand door, with the right hand door capable of bearing a further inscription following a later interment in the grave. It was also proposed that on the reverse of the stone there would be a representation of the rear window of a Gypsy caravan, with curtains at the window and a suspended cage containing two songbirds visible through the window. It was also requested that below the window there should be etched a representation of a horse-drawn two-wheeled waggon. It was proposed that the etched designs and inscription should be silvered. The deceased had lived all his life in a traditional Gypsy caravan. The Deputy Chancellor approved the memorial, with the exception of the representation of a waggon on the reverse side. [Link to judgment] [Back] [Top]

[2016 Judgments] [2015 Judgments] [2014 Judgments]


Cathedrals Fabric Commission Applications

Determinations

The determinations made at the Commission meeting on 13 July 2017 were:

At the Commission meeting on 21 September 2017, the following new applications were considered:


Environmental Permit

Rector and PCC St Mary’s Church: environmental permit application, GL20 6EZ The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 from Rector and PCC St Mary’s Church. The application (No EPR/GB3692NY/A001) is for a Trench Arch system at St Mary’s Church for a discharge point at National grid reference SO 87609 37722.

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Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

General/Miscellaneous

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Navigation

Clicking on “top” will return the view to the groups in the main menu, above; Clicking on “back” will return the view to the sub-headings within each of these groups. [Clicking on the citation will link to the L&RUK summary of the case]. “Link to Judgment” is self-explanatory, and “Link to post” is used where there is a stand-alone post on the general issues raised in the judgment.

Citation of judgments

As from 1 January 2016, judgments in the ecclesiastical courts have been allocated a neutral citation number under the scheme described in Practice Note No 1 of 2016 and Practice Note No 2 of 2016. In addition, it was necessary to assign a neutral citation for the Diocese of Sodor and Man, here. The Diocese was deliberately excluded from the list of neutral citations in the earlier Practice Directions on citation because it is not part of England.

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Cite this article as: David Pocklington, "Ecclesiastical court judgments – September" in Law & Religion UK, 2 October 2017, http://www.lawandreligionuk.com/2017/10/02/ecclesiastical-court-judgments-september/

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