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Ecclesiastical Case Reports
Re Emmanuel Church, Bentley
(Court of Arches: Cameron, Dean; Bursell and Briden Chs, November 2005)
Telecommunications masts - risk to health
This was an appeal from a decision of Shand Ch (2005) 8 Ecc LJ 235, who had refused a faculty for the installation of mobile telephone aerials on the outside and inside of a church tower on the basis that the strong local opposition to the installation would be to undermine the prime objective of the mission and worship of the church. The appellant, QS4 Limited, had not been given a chance to comment on the issues in relation to local feeling and argued that the Archbishops' Council's model licence 'Best Practice Commitments' would be complied with. The Court criticised the decision of the chancellor in his analysis of St Luke the Evangelist Maidstone [1995] Fam 1. The Court concluded that the appellant had satisfied the best practice commitment in relation to the aesthetics of the project by adopting the recommended alterations suggested by the DAC. The Court criticised the behaviour of the appellant's agents in terms of 'local consultation' and advised that, in future, advertisements in local newspapers were to be commended. The Court criticised the DAC and Registrar for failing adequately to give public notice of the application for the faculty. The Court approved the use of properly proved petitions but criticised the chancellor for failing to consider ordering a fresh display of public notice for objection to cure the breach of Faculty Jurisdiction Rules. The Court criticised the further breaches of the rules in terms of the failure to obtain the objectors' agreement in writing to proceeding by way of written representations and drew attention to the procedural alternatives open to a chancellor under the Faculty Jurisdiction Rules, and further criticised the chancellor's decision to take into account a letter from an objector who had not been given the option whether she wished her objections to be taken into account or not. The court agreed with the appellant's submission that the chancellor had misdirected himself in law in relation to section 1 of the Care of the Churches and
Ecclesiastical Jurisiction Measure 1991 and accordingly misdirected himself by attaching disproportionate weight to the 'subjective perception of hazard' on the part of the objectors. The Court rejected the submission by the appellant that the concept of 'material consideration' (for example the question of unjustified local concern) should be incorporated into the deliberations of the Consistory Court by analogy with planning law. The court concluded that the chancellor had misdirected himself by giving undue weight to the 'depth of feeling locally'. The Court concluded that clause 6 of the licence agreed by the Archbishops' Council sufficiently answered the objectors concerns over safety. The Court concluded that the flawed consultation process had engendered a lack of trust between the objectors and petitioners, so that the objections were directed towards the companies rather than the church itself. The court set aside the chancellor's decision and allowed the appeal.
[JG]
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