Sheffield Consistory Court: McClean Ch, April 2001

A faculty was sought for a major re-ordering of a Grade II listed church dating from 1834. In the course of his judgement the chancellor set out his understanding of the legal principles involved in coming to a decision in such a case. The proctor for the petitioners maintained that the Bishopsgate questions are guidelines only, and that the law as to the criteria to be applied in considering proposed changes to listed churches is in a 'fluid state'. The chancellor did not agree and pointed to a number of recent cases that showed that courts of first instance and appellate courts were 'loyally applying ... the Bishopsgate questions' as adopted by the Court of Arches in Re St Luke the Evangelist, Maidstone [1995] Fam 1, [1995] 1 All ER 321, and Re St Mary the Virgin, Sherborne [1996] Fam 63, [1996] 3 All ER 769. He considered himself 'bound, morally if not in the strictest of theory, by what was said in the Sherborne judgment'. He also rejected the contention that a chancellor was bound to have regard to the role of a church as a local centre of worship and mission, adopting the analysis of the Court of Arches in the Maidstone judgment at pages 6G-7E. The chancellor was not attracted by the notion of a fourth Bishopsgate question as suggested by Mynors Ch in Re Holy Cross, Pershore (2000) 6 Ecc LJ 86, and considered the Bishopsgate questions an adequate framework which allowed all relevant matters to be considered on the facts. He commented, 'I do not think it would be helpful to develop a Bishopsgate catechism and so impose an unduly prescriptive framework on the balancing process chancellors must perform'. The decision to grant the faculty was, therefore, made by resolving the Bishopsgate questions, balancing the need for re-ordering to facilitate the worship and mission of the church with the concerns of English Heritage and the CCC who had objected to some of the proposals. This resulted in the granting of a faculty for most, but not all, of the petitioners' proposals.

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(2001) 6 Ecc LJ 172