Chichester Consistory Court: Hill Ch, October 2001

The petitioners sought a faculty for the removal of a marble bust from the church and its replacement with a good quality resin replica. The DAC supported the petition. The bust was unsecured save by its own weight and rested on a casket as part of a funerary monument. The parish was concerned for the security of the bust, it having been attributed to Rysbrack and valued at £100,000. The original proposal to sell the bust was amended when Lord Dartmouth, whom the PCC conceded was the owner as descendent of the person commemorated, offered to house the bust in his London home. It was to be displayed with family portraits, and reasonable access to be granted to interested members of the public. English Heritage, the Council for the Care of Churches and the Georgian Group were parties opponent to the petition, although the Georgian Group took no part in the hearing. They opposed the substitution of the replica, preferring the use of a stainless steel dowel as a means of fixing the original bust to the casket, thereby minimising the perceived risk of theft. Lord Dartmouth was implacably opposed to the drilling and doweling of the bust. The chancellor found that the bust was an integral part of 'a scheme of decoration' within the church and as such was a fixture rather than a mere chattel. See Elitestone v Morris [1997] 1 WLR 687, HL. Having reviewed the evidence, including that of four experts, he applied the Bishopsgate questions and found no case of 'necessity' made out, either on the ground of finance or of security. He rejected the argument that Lord Dartmouth, as owner, could do what he wished with his monument. He declined to follow Re St Mary and St Nicholas, Wilton (1999) 5 Ecc LJ 211. The chancellor took the following into consideration:

(i) the resin replica bust would discolour over time, unlike the marble original;
(ii) there was 'virtually no risk' of damage to the bust or casket when drilling it for the purpose of doweling;
(iii) an item as weighty and bulky as the bust was unlikely to be stolen;
(iv) the CCC commends the practice of insuring items such as the bust for their modern replacement value as opposed to antiquarian value;
(v) the disposal of the bust would do nothing to improve parish finances;
(vi) risk of theft could be reduced considerably by doweling.

Although this was sufficient to dispose of the petition, the chancellor nevertheless considered the remaining Bishopsgate questions. He concluded that the removal of the original would adversely affect the church. He observed that the fact that the replica could not be identified as such by the naked eye from the doorway of the church did not mean that the substitution would not alter the character of the church. He noted that 'character' was not necessarily the same as 'appearance'. The petition was refused. The chancellor gave leave to the petitioners, should they wish, to amend the petition to seek permission for the drilling of the bust or its fixture by adhesive, observing that such could take place without the consent of the owner, section 3 of the Faculty Jurisdiction Measure 1964 not applying in this instance as Lord Dartmouth was willing to remove only the bust and not the entire monument.

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(2002) 6 Ecc LJ 291-292