Great Malvern - 2 possible points of law.

Chris Frye Chris at
Thu Jun 4 21:35:47 BST 2009

Following the recent  letters in the RW coming out of Worcestershire with
respect to Great Malvern, I have been left trying to think through some of
the issues involved.   Therefore, I have looked again at the Consistory
Court judgement with as critical a view as I can muster. I had in mind the
question asked some time ago on this list - what is wrong with the


There are two points that strike me as questionable. It might be of interest
that both relate to "application of the Law" rather than "the facts of the
case". Whether they could be used as a basis for appeal I don't know - it
would be better to ask a lawyer that question!


Please forgive me if these points have been raised before and I have missed
them. I have read Chris Pickford's RW article, the Church Times piece and
relevant messages on this list since March.


Perhaps those with a better knowledge of the various legal issues might care
to comment...and apologies for the length of the posting, I can't say it in
much less!



1.       Listed Building Act 1990.


Para 36-37. Charles Mynors here considers a phrase taken from the Court of
Arches, the full version of which can be found at para 28. The full sentence
reads: "Where a church is listed, there is a strong presumption against
change which would adversely affect its character as a building of special
architectural or historic interest." He then goes on to state that he is
"mindful" of the Listed Building Act 1990 that says that the decision maker
is to have special regard to "the desirability of preserving the building or
its setting or any features of special architectural or historic interest
which it possesses". It is pointed out that this act would apply in the
absence of the ecclesiastical exemption; presumably then it does not apply
(or not all of it) in the presence of the ecclesiastical exemption. 


Although both of the key phrases above address "architectural and historic
interest", it will be obvious that there is a clear difference in meaning
and scope between them. The former applies to "character as a building"; the
latter applies to a "building or its setting or any features".


Para 57. In summarising the legal position, it is now explicitly stated that
"building, features and setting" are to be taken into account. 


Paras 118-123. It is clear from para 118 that "features" have been
introduced into the consideration. Even if the wording here is not an exact
quote from the Listed Building Act 1990, there is a clear separation of the
consideration into two elements - one taken from the Court of Arches and one
taken from the Listed Building Act 1990. There is a repeated reference to
the bellframe as a "feature" in the following paragraphs 119 to 123. The
whole thrust of this section is to address the "feature" and then
extrapolate from the feature to the "character of the building".


My question can be stated as follows. Is it correct that in delivering a
Consistory Court judgement the Chancellor should be "mindful" of the Listed
Building Act 1990, and apply an approach to his reasoned conclusions that
seems to be so obviously drawn from that act?


Just to build on this point further, if I am reading it right the Planning
(Listed Buildings and Conservation Areas) Act 1990 actually states at
section 16 (under the heading Listed Building Consent) "In considering
whether to grant listed building consent for any works the local planning
authority or the Secretary of State shall have special regard to the
desirability of preserving the building or its setting or any features of
special architectural or historic interest which it possesses." There is no
mention of "decision makers". And further on Section 60 of the same act
covers the ecclesiastical exemption. Again, perhaps I am misunderstanding
something but is it not the point of the exemption that the Listed Building
Consent is not required? How then could a set of conditions that apply to
the Listed Building Consent process be brought into the faculty process? 



2.       The Views of Regular Worshippers


Para 56. In summarising the legal position, Charles Mynors states that
"Where there is disagreement the views of the regular worshippers are to be
given particular weight."


Para 118 to 137. In drawing up the reasoned conclusions, there does not
appear to be any attempt to consider the views of regular worshippers
(excepting the briefest mention of the ringers in para 136). This is in
spite of the fact that the case for the petitioners (para 72 to 90) gives
ample evidence for doing so. 


My question is as follows. Is it not a serious omission to have excluded the
views of regular worshippers in the reasoned conclusions?



Chris Frye



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