Bath and Wells Consistory Court: Briden Ch, September 2000

In July 1988 a faculty was granted for the installation of a stained glass window to commemorate Orchard Portman school, an independent co-educational school existing in the village between 1920 and 1977. In March 2000 the Old Portmanian Association and School Memorial Trust offered to supply flowers on a monthly basis to be displayed inside the church at the window. The PCC accepted the offer but suggested, due to limited manpower, that a flower display should be delivered three times a year to an agreed venue to be picked up by one of the churchwardens. The secretary of the Old Portmanian Association declined the offer and asserted the Association had a right of access to the church for the purpose of displaying floral tributes and demanded keys for the purpose. The chancellor, on perusing the papers, decided that to save time and costs he should invite the secretary of the society to apply for a further order under the original faculty. The chancellor dealt with the matter as a preliminary issue, determining on an ex parte basis whether the secretary had any prospect of obtaining the relief which he sought. The issue was the subsistence (if any) of the rights asserted in persons other than the minister and those (such as churchwardens) who require access to the church to discharge their legal duties. In the absence of such rights it would be inappropriate for the consistory court to compel churches to be opened on demand for the pleasure or convenience of individuals or groups. The PCC, acting under the provisions of the Parochial Church Councils (Powers) Measure 1956 must decide when (save at times of divine worship) the church may be left unlocked having regard to risks of vandalism and theft. The secretary sought to contend that there was a private right enjoyed by himself and the association members in relation to the window. The Chancellor reviewed the decision of Leigh v Taylor [1902] AC 157 concluding that, upon installation, the window became annexed to the freehold of the church. He considered the submission that the principles of Roman Law assisted the secretary unsustainable and rejected the submission that the special common law rule concerning monuments to deceased persons set out in St Andrew's Thornhaugh [1976] Fam 230 applied since the window in question commemorates the school. The assertion that the window remained in some way owned by the association, on legal analysis, did not bear scrutiny. Whilst is doubtless serves as a focus for recollection and prayer, this cannot in itself be translated into any form of right recognised by law. The application was therefore dismissed.

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(2001) 6 Ecc LJ 87-88