Bath Abbey pews: refusal of permission to appeal

The Arches Court’s refusal of the Victorian Society appeal on the removal of pews in Bath Abbey is notable, not with regard to any points of law raised but on the visual impact this will have within the church, for which:

“in the hierarchy of the Victorian furnishings, [the consistory court could] see that there is a deliberate ranking of the pews within the interior of the Abbey, that give a significance to the way all the pews act as a single entity, having been designed and fitted as a set piece”.

Replacement of the pews in Bath Abbey is a major component of its Footprint Project, a £19.3 million programme of capital works and interpretation which will provide innovative and sustainable solutions to the community’s needs. The pews were designed by the renowned architect Sir George Gilbert Scott and are an almost complete set, unusual for churches of this size. This has echoes of Re Holy Trinity Hull [2017] ECC Yor 1 in which the Victorian Society objected, unsuccessfully, to the proposed removal from the nave of “one of the most magnificent and extensive suites of Victorian church seating in the country”.

Re Bath Abbey [2018] EACC 1

Following the consistory court hearing Re: The Church of Saint Peter and Saint Paul, Bath (Bath Abbey) [2017] ECC B&Wl on which we posted here, the chancellor allowed, subject to conditions, a petition for the removal of the nave pews and their replacement by chairs of a particular design, notwithstanding the objection of the Victorian Society as party opponent. Permission to appeal was refused by the chancellor, but the Victorian Society subsequently renewed its application for permission to appeal to the Court of Arches.

The Dean gave directions under rule 23.4(2)(a) of the Faculty Jurisdiction Rules 2015 for the purpose of determining the application on consideration of written representations, and in reaching his determination had regard to the Victorian Society’s Grounds of Appeal (“the Grounds”) and Reasons in Support of the renewed application (“the Reasons”), to the petitioners’ Response to Grounds of Appeal (“the Response”), and to the Victorian Society’s Reply thereto (“the Reply”) [2]. He noted:

“The factual background was very fully set out in the judgment itself, and [was not] supplied with, nor considered it appropriate or necessary to obtain, either the “Evidence Bundle” or the closing submissions of the parties (though reference was made to these in both the Grounds and the Response)” [2].

In the Reasons, the Victorian Society summarises its criticisms of the judgment under six headings, and the Dean followed the approach taken in the Response that:

“these are advanced as the VS’s ‘best’ points”, whilst bearing in mind the claim in the Reply that “the Victorian Society will (presumably if the matter comes to a substantive hearing) comment on the Petitioners’ omission to deal in their Response with many points relied upon by the Victorian Society in its Grounds and Reasons” [5].

The court’s analysis of these six headings (plus a seventh) is summarized below:

(1) Alleged bias: The Dean “share[d] the view expressed in para 3 of the Response that the chancellor’s judgment, both on this aspect and taken as a whole, was “scrupulously fair and balanced”, and [did] not consider that there is the slightest chance of an appeal succeeding on the ground of bias” [6].

(2) Approach to the status and value of the pews: “The difficulty for the Victorian Society is that, as is admitted in the Reasons, the chancellor accepted (para 49) that the nave pews were unique in that they are ‘the best set of their type attributable to Scott’…His conclusions, if seeming perverse to the Victorian Society, fall far short of perversity as understood by lawyers” [7].

“[8]. The nub of the complaint is the chancellor’s finding (para 51) that “the significance of the nave pews, put in the context of the perpendicular interior of the Abbey, is moderate”…There was no error of law in the chancellor’s conclusion, though others could rationally have concluded that the harm was more serious, as the Victorian Society contended…In this context I deliberately ignore the observation of the chancellor in refusing permission to appeal that his conclusion under the fifth Duffield question would have been the same, even had he found the harm to be serious, rather than moderate”.

(3) and (4) Conclusion on public benefit: It was alleged that the chancellor’s conclusion on public benefit was confused and not clear; that he failed to analyse the various heads of justification individually; and that if he had done so, “he would have perceived that each amounts to almost nothing, even if it actually exists”. However, the Dean stated:

“[9]. …There is no confusion, lack of clarity or irrationality, nor is the chancellor properly to be criticised for having addressed the petitioners’ justification in the way he did, concisely, albeit in two different sections of his judgment. There was no failure to address the Duffield questions “in the right order”…”

(5) Erroneous approach to the fifth Duffield Question

The allegation is that the chancellor: “did no more than pay lip service to the requirement of the fifth Duffield Question, which requires not a simple balance between the actual harm and the perceived future social benefit, but a strong presumption against the harm being allowed. On this point, the Dean considered that:

“[10]. …This ground is entirely hopeless for two reasons. First, it assumes that the benefits were “trivial and illusory”, whereas the chancellor found them to constitute “a formidable combination” (para 61)… Second, the chancellor expressly referred (para 63) to “the listing of Bath Abbey and the strong presumption against change”, as matters “properly brought into account…”.

(6) Failure to consider the Victorian Society’s alternative

The Dean commented “This allegation is entirely without merit. I need merely set out para 59 of the judgment…”

“[11]. …I am at a loss to see how it could be argued that the chancellor failed to give any consideration to the matter. Moreover, in respect of the chancellor’s phrase “isolated block of pews”, that description is not to be challenged as “an error of law”, merely because “three-quarters of the nave pews would have remained”.

(7) Other matters

Of the “fusillade of alleged errors of fact and law…contained in paras 3-10 of the Grounds, some only of which were specifically relied upon in the Reasons, without any being formally abandoned”, the only issue requiring further comment related to the chancellor’s holding (para 35 of the judgment) that:

“Mr Rich [the lead architect of the Abbey Footprint project], has given satisfactory evidence that the future risk of erosion [to the ledger-stones] may be addressed by a combination of strategies including the placement of vulnerable stones in protected areas, the careful levelling of the floor and the creation of appropriate visitor routes”.

The dean commented:

“Even assuming that, in the overall assessment which had to be made in this case, the possibility of some damage to the Georgian ledger stones…was an issue of more than relatively minor importance, the chancellor’s careful wording “satisfactory evidence”/ “may be addressed” falls some way short of a finding that there would be no damage whatsoever to them. Accordingly the alleged error of fact does not appear to have been made.

Overall conclusion

“[13]. …In several recent cases the Victorian Society has successfully identified errors of law in first-instance faculty decision-making (Penshurst and Shipton Bellinger, both cited above); and in Re St Botolph’s, Longthorpe [2017] EACC 4 it was granted permission to appeal, although the proceedings resulted in a consent order.

But in the present instance, whilst its initial objection was entirely understandable and the issues deserved the close scrutiny which a consistory court hearing involves (and did involve in this case), I am satisfied that its application for permission to appeal does not meet the test of having a real prospect of success. Nor do I consider that the undoubted importance of Bath Abbey (or any other matter) is such as to provide “some other compelling reason why the appeal should be heard”, nor does the Victorian Society so contend”.

Cite this article as: David Pocklington, "Bath Abbey pews: refusal of permission to appeal" in Law & Religion UK, 20 March 2018, http://www.lawandreligionuk.com/2018/03/20/bath-abbey-pews-refusal-of-permission-to-appeal/

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