Chester Consistory Court: Lomas Ch. April 1997

The incumbent and churchwardens sought a faculty for a substantial extension to the church and a major internal re-ordering. The church was grade II listed and planning permission had been granted. The Chancellor drew attention to the difference of approach of the Court of Ecclesiastical Causes Reserved and that of the Court of Arches as to whether or not necessity for change was a pre-requisite to the granting of a faculty relating to a listed building. He cited Re St Mary's, Banburv [1987] Fam 136, [1987] 1 All ER 247, and contrasted it with Re St Stephen, Walbrook [1987] Fam 146, [1987] 2 All ER 578, which was critical of the 'clearly proved necessity' test propounded in St Marx's by the Dean of the Arches. The Chancellor reviewed Re All Saints, Melbourn[\992] 2 All ER 786, [1990] 1 WLR 833, Re St Luke the Evangelist, Maidstone [1995] Fam 1, [1995] 1 All ER 321; Re St Mary the Virgin. Sherborne [1996] Fam 63, [1996] 3 All ER 769; and the unreported judgement of Cameron Ch. in Re St Helen's Bishopsgate (26th November 1993; 3 Ecc LJ 256). He stated; "Regardless of whether the Court of Ecclesiastical Causes Reserved is binding on the Court of Arches and the Chancery Court of York it must be observed that both courts were in the instant cases acting in the faculty jurisdiction and considering the exercise of that jurisdiction in the context of listed buildings. Is a Chancellor therefore to apply one standard in relation to a matter before him which might possibly be appealed to the Court of Arches or the Chancery Court of York and another in a case which might be appealed to the Court of Ecclesiastical Causes Reserved? That appears to me to be untenable, undesirable and if I may be permitted to say so in this context, an unnecessary situation. "In my judgment I must exercise my discretion as best I can, taking into account: first, the architectural importance of the building as evidenced by its listing and appreciating that Parliament has relied upon Chancellors to ensure that such a building is protected; secondly, that I must have regard to and take into account the aesthetic quality of its interior and fitments and furnishings; thirdly, the liturgical requirements of those using the building; and fourthly, the interests of the worshipping commuity as a whole and together with the interests of the community at large, including therein future generations; for we are but trustees of this building, always when considering and taking into account those factors, bearing in mind that the church is for use in the service of God. Those considerations will assist me to guard against mere passing fashion. I then have to decide whether or not the faculty should be granted in whole or in part or whether it should be refused. If I reach the conclusion that a faculty should be granted, then it can be said that it ought to be granted having regard to the pastoral well being of this Parish and to enable the service of God the better to be rendered in this Parish.' The Chancellor proceeded to determine the petition.

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(1997) 4 Ecc LJ769-770