Southwark Consistory Court: George Ch, September 1998
In addressing the 'Bishopsgate Questions' in relation to a major re-ordering, the chancellor was referred to the apparent conflict between the approach of the Court of Arches (Re St Mary the Virgin, Sherborne [1996] Fam 63, [1996] 3 All ER 769) and that of the Court of Ecclesiastical Causes Reserved (Re St Stephen, Walbrook [1987] Fam 146, [1987] 2 All ER 578), as noted in Re St Chad, Romiley (1997) 4 Ecc LJ 769, per Lomas Ch. Commenting on the historic evolution of departmental guidance concerning listed buildings, the remarks of Gray Ch in Re St Barnabas, Duhvich [1994] Fam 124 at 129-132, and various definitions to be found in civil and planning jurisprudence, the chancellor concluded that he interprets 'necessity' and 'necessary' in the Bishopsgate context as 'something less than essential, but more than merely desirable or convenient; in other words something that is requisite or reasonably necessary." As to costs, the petitioners were ordered, as is usual when a faculty is granted, to pay the prescribed court fees. Although the practice is not to make an order for inter panes costs (see Re St Mary the Virgin, Sherborne [1996] Fam 63 at 70, [1996] 3 All ER 769 at 775, Ct of Arches), and although provision is made for the payment of the archdeacon's costs by the diocesan board of finance (see the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 16(4)), the court has jurisdiction to order a party to pay some or all of the costs incurred by the archdeacon (see Re St Mary's, Barton-on-Humber [1987] Fam 41 at 57, [1987] 2 All ER 861 at 878, Cons Ct; Re St Stephen, Walbrook [1987] Fam 146 at 158, [1986] 2 All ER 705 at 715, Cons Ct; and Re St Matthew's, Wimbledon [1985] 3 All ER 670 at 673, Cons Ct). Since here the evidence of an expert called by those acting for the archdeacon and the questioning of the petitioners' witnesses had worked overall to the benefit of the petitioners in improving the detail of the scheme for the long-term benefit of the parish, the appropriate course was to order the petitioners to pay half of the costs of the acting archdeacon.
(1999) 5 Ecc LJ 217
