Shared use of church buildings or is nothing sacred?

Ecclesiastical Law Journal

Volumn 6, Issue 31, 2002, Pages 306-317

  George, Charles ^a  

^a Diocese of Southwark   (United Kingdom)

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EID: 84905810468     PISSN: 0956618X     EISSN: 17518539     Source Type: Journal    
DOI: 10.1017/S0956618X00004701     Document Type: Article

References (96)

1. An edited version of a paper delivered as one of the Ecclesiastical Law Society's London Lectures on 12 September 2001.
2. Re St Mary-le-Bow, London [2001] 1 WLR 1507
3. R v Twiss(1869) LR 4 QB 407 at 413, 414.
4. Re St John's, Chelsea [1962] 2 All ER 850 at 853
5. [1962] 1 WLR 706 at 709, London Cons Ct.
6. Re St Mary the Virgin, Woodkirk [1969] 1 WLR 1807
7. sub nom Morlev Borough Council v Vicar and Churchwardens of St Mary the Virgin, Woodkirk [1969] 3 All ER 952, Ch Ct of York. The same test was applied where a right of way was sought over a churchyard, although the Chancellor recognised that the situations differed, because only in the former case would the land pass from the care and management of the incumbent
8. PCC: Re St Andrew's, North Weald Bassett [1987] 1 WLR 1503 at 1508, Chelmsford Cons Ct.
9. Re St Mary-le-Bow, London[2001] 1 WLR 1507 at 1511
10. Ecc LJ 164, London Cons Ct.
11. Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1513.
12. Re St Mary-le-Bow, London (1989) 8 Consistory and Commissary Court Cases no 14, London Cons Ct. This invaluable, bound collection is held only in Middle Temple Library, and I refer to it below as ‘CCCC.’ The post-1995 transcripts have not yet been bound, though they can be consulted in that library.
13. Briden and Hanson, Moore's Introduction to English Canon Law (3rd edn, 1992), p 86.
14. Re St Peter's, Stockton, Holy Trinity Churchyard (1986) 7 CCCC no 7, Durham Cons Ct.
15. By 1984, in respect of use of a consecrated cemetery, Newsom Ch was applying a slightly less stringent test than that of exceptional circumstances (‘only if there is some substantial reason for doing so, usually because some public advantage will follow’): Re Coleford Cemetery [1984] 1 WLR 1369 at 1371, Bath and Wells Cons Ct.
16. A substantial restriction on secular use of churches is the requirement for a licence rather than a lease. Normally such licences are for five to ten years, although in the case of an un-consecrated church curtilage a 99-year licence was granted in 1970: Re St Peter's, Bushey Heath (1970) 1 CCCC no 14, St Albans Cons Ct.
17. Re Whixall Old Burial Ground [2001] 2 All ER 348
18. [2001] 1 WLR 995, Lichfield Cons Ct.
19. Re St Ann's, Kew [1977] Fam 12
20. [1976] 1 All ER 461, Southwark Cons Ct.
21. Cameron Ch has referred to ‘those of my generation who were brought up in an era when there was a different attitude to what was a proper use of a church building’: Re Emmanuel, Northwood (1998) 15 June, 5 Ecc LJ 213
22. 17 CCCC no 19, p 50, London Cons Ct.
23. Re St Mark's, Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct.
24. This has judicial support: Re St John the Baptist, Beeslon (1998) 12 March, 17 CCCC no 10, p 2
25. Southwell Cons Ct, where Shand Ch said that ‘Nobody these days would seriously argue that proper toilet facilities are anything but appropriate in such a place of worship’; Re St John the Baptist, Great Kissington (1993) 3 Ecc LJ 121, Gloucester Cons Ct.
26. Re St John the Evangelist, Blackheath (1998) 5 Ecc LJ 217
27. 17 CCCC no 26, p 11
28. Southwark Cons Ct. For the importance of refreshments in attracting and welcoming people to services, see Re St Mary's, Kings Worthy (1998) 5 Ecc LJ 133
29. 17 CCCC no 8, Winchester Cons Ct
30. Re St Peter, Pedmore (1998) 17 CCCC no 29, para 46, Worcester Cons Ct. A coffee bar in the corner of a church has been held to be necessary for mission, quoting Bishop Michael Marshall on the incarnational implications of the fusion of what might superficially be regarded as the ‘sacred’ and the ‘secular’
31. Re St Mark, Woodthorpe (1998) 5 Ecc LJ 132
32. 17 CCCC no 5, p 2, Southwell Cons Ct
33. but see Boydell Ch's opinion that the serving of coffee might prove no more than ‘a passing fashion’: Re St Helen, Abingdon (1986) 1 Ecc LJ (1,2) 37, Oxford Cons Ct.
34. Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1511
35. Re St Nicholas's, Guildford(1985) 6 CCCC no 25, Guildford Cons Ct.
36. Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.
37. He also referred to day centres and nursery schools in Re St Mark's, Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct.
38. In Attorney-General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford [1976] AC 363 at 377
39. [1975] 2 All ER 337 at 345, HL, construing the then scope of the ecclesiastical exemption from listed building control, Lord Cross of Chelsea said that ‘“ecclesiastical purposes” is a vague phrase’, because it is capable of both a wide and a narrow meaning.
40. The House of Lords left the meaning open, whereas the Court of Appeal ([1975] QB41, [1974] 3 All ER 273) favoured a narrow interpretation
41. Campbell v Paddington Parishioners and Inhabitants (1852) 2 Rob Eccl 558, London Cons Ct, a decision of Dr Lushington, sitting as Chancellor.
42. R v Twiss (1869) LR 4 QB 407 at 413.
43. But a faculty for a church school on consecrated land was granted in Corke v Rainger and Higgs [1912] P 69, Ct of Arches.
44. Re Christ Church, North Brixton (1990) 9 CCCC no 31, Southwark Cons Ct.The Cafe Van Gogh now operates in a corner of the church and about 50 per cent of the interior of the church is devoted to second-hand retailing.
45. Re St Nicholas's, Guildford (1985)6 CCCC no 25, Guildford Cons Ct.
46. A day-time cafe operates in Robert Potter's newly created crypt beneath St Nicholas, Sevenoaks, in the Diocese of Rochester.
47. Re St Mary-le-Bow, London (1989) 8 CCCC no 14, London Cons Ct.
48. The faculty is referred to in Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5, Lands Trib. The range of goods sold in 1987 is listed at 6.
49. I am grateful to the Registrar of the Diocese of London for this example and that of St James, Norlands, referred to below. The first such licence of which I am aware is the unopposed faculty granted by Ashworth Ch in 1954 to use the basement of a London church for the commercial storage of papers, criticised in Re St John's, Chelsea [1962] 2 All ER 850 at 857
50. [1962] 1 WLR 706 at 715, London Cons Ct.
51. In Re St John's, Chelsea, at 857 and at 714, the Deputy Chancellor held that the jurisdiction to authorise secular uses was narrowly confined, but twenty years later the approach of Newsom Ch was less strict.
52. Re St Botolph Without Aldgate (1988) 8 CCCC no 6, London Cons Ct.
53. Re St Mark's, Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct.
54. The precedent was set by Boydell Ch, who permitted a mast on a church tower for the benefit of aircraft: Re St James’, Bishampton [1961] 2 All ER 1
55. [1961] 1 WLR 257, Worcester Cons Ct.
56. Re All Saints’, Harborough Magna [1992] 4 All ER 948 at 950
57. [1992] 1 WLR 1235 at 1237, Coventry Cons Ct.
58. See Re St Mary the Virgin, Woodkirk [1969] 1 WLR 1807
59. sub nom Morley Borough Council v Vicar and Churchwardens of St Mary the Virgin, Woodkirk [1969] 3 All ER 952,Ch Ct of York.
60. R v Twiss (1869) LR 4 QB 407 at 413.
61. Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.
62. Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1514
63. Re St Ann's, Kew [1977] Fam 12
64. [1976] 1 All ER 461, Southwark Cons Ct.
65. Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.
66. Report of the Archbishops’ Council on Rural Areas (1990), cited in Re Whixall Old Burial Ground[2001] 2 All ER 348
67. [2001] 1 WLR 995, Lichfield Cons Ct.
68. Shand Ch has said that ‘the distinction between “secular” and “sacred” is often impossible to maintain practically or theologically’: Re St Paul, Carlton-in-the-Willows (1997) April, 16 CCCC no 7, p 3, Southwell Cons Ct, considering a proposed re-ordering to include community facilities.
69. Re St John's, Chelsea[1962] 2 All ER 850 at 853
70. [1962] 1 WLR 706 at 709, London Cons Ct.
71. Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1514, 1516
72. Examples from the Indian sub-continent are the Hindu temple at Madurai (an astonishing mixture of the sacred and the secular) and the Mosque at Ajmer which incorporates educational, hospital and soup-kitchen facilities. Both are very considerable complexes. An extreme (and atypical) instance would be the Mosques at Lahore, where, according to Adnan Ali, a gay Muslim, ‘you would go just to cruise and meet people because they were such social places’ (Guardian, 30 August 2001, emphasis added).
73. Simon Jenkins, England's Thousand Best Churches, pp xxxii-xxxiii (‘A parish church is a church open to all. A church shut except for services is a private meeting house of a sect’). The phrase ‘ring-fence space for prayer’ comes from an editorial on attempts made by English cathedrals to promote tourism.
74. (Church Times, 24 August 2001).
75. In Re St Paul, Carlton-in-the-Willows (1997) 16 CCCC no 7, Southwell Cons Ct, Bishop Michael Marshall's Free to Worship (revised edn, 1996) pp 177ndash;181 was quoted: ‘by incorporating secular uses the church building could play a significant role in the community, bridging in some way the gap between the sacred and the secular… convert[ing] a problem building into a glorious opportunity for service and growth’.
76. Our Countryside: The Future-A Fair Deal for Rural England (2000), Cm 4909.
77. Church Times, 24 August 2001, reporting an arson attack on this inner city church and community centre. The vicar has kindly supplied me with a sketch plan, showing that the building has a sanctuary separated off by sliding screens from the main hall, the latter of which is used both for worship and for a variety of other activities including use by youth clubs; there are also numerous ancillary rooms. In the Diocese of Southwark, St Saviour, Peckham, remains wholly within the faculty jurisdiction, although the greater part of the church building was converted in the early 1980s into the Coplestone Centre, offering advice and community facilities.
78. Local Government Finance Act 1988, s 51, Sch 5, para 11(1).
79. Local Government Finance Act, Sch 5, para 11(2)
80. substituted by the Local Government Finance Act 1992, s 104, Sch 10, Pt I, para 3.
81. Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council[1988] RA 1 at 10, Lands Trib.
82. Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5,6, Lands Trib.
83. The company was held not to be the agent or alter ego of the PCC: p 10.
84. Ryde on Rating D[617]-D[627].
85. Morley (Valuation Officer) v SPCK [1959–1960] 6 Ryde's Rating Cases 391 at 397.
86. Works which affect only the interior of a building do not require planning permission: Town and Country Planning Act 1990, s 55(2)(a)(i).
87. Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.
88. Emma Hotels v Secretary of State for the Environment (1980) 41 P & CR 255, CA.
89. Town and Country Planning (Use Classes) Order 1987, SI 1987/764, art 3, Sch D, Class D1.
90. Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5, Lands Trib.
91. Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.
92. Attorney-General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford[1975] QB 41 at 50
93. [1974] 3 All ER 273 at 277, CA.
94. The decision was reversed on other grounds: [1976] AC 363
95. [1975] 2 All ER 337, HL.
96. ‘The Community Use of Churches’ (2000) 5 Ecc LJ 348 at 349.