[Bell Historians] Great Malvern - 2 possible points of law.

[Chris Frye]

My thanks to Peter Rivet for his input, which I have read carefully and will
take into account. It has certainly made me think...

 

>Peter Rivet wrote: 

>"...the same rules apply to faculty applications as to applications for
Listed Building Consent."  

I'm not sure that I can accept this statement as a generality and applying
in all circumstances eg are local planning authorities bound by decisions of
the Court of Arches? Does the CofE faculty system have to conform with the
requirements of the Listed Building Act 1990 sections 7 to 9 regarding
Listed Building Consent? (See
http://www.opsi.gov.uk/acts/acts1990/ukpga_19900009_en_1 - sections 7-9 and
60)

 

>"...Section 8 of PPG15 deals with ecclesiastic exemption."  

The mention of PPG15 is useful  (see PPG15 at:
http://www.communities.gov.uk/documents/planningandbuilding/pdf/142838.pdf).
Charles Mynors knows about PPG15 because he quotes it in para. 50 of the
Judgement ( See the Judgement at:
http://www.ringingworld.co.uk/pdf/Malvern_Priory_Judgment.pdf ). PPG15
states (at section 8.4 point 4) that when operating under the Ecclesiastical
Exemption "the decision-making body should be required... to take into
account... the desirability of preserving historic church buildings and the
importance of protecting features of architectural merit and historic
interest". So why at paras 36,37 of the Judgement did Charles Mynors not
refer to it? Why did he choose to refer to The Listed Building Act 1990
section 16.2 and force himself to try to accommodate the Ecclesiastical
Exemption? My guess is that PPG15 is actually just "guidance" and not "Law"
as such. Is it not correct that the case in hand requires a decision based
upon the Law, rather than on advice from a Government department? If this is
correct, then PPG15 might not be admissible but The Listed Building Act 1990
could be used, provided that the section referred to is applicable. (In this
context Charles Mynors goes on to discuss some further "advice" documents in
section 50 to 54 of the Judgement, although these are of little consequence
to what follows. I'm not sure why he put them in. Perhaps his local
government background compelled him? Perhaps he just lifted them from one of
his books?)

 

It might help to add the following 2 points to the earlier posting:

 

(i) In para 36 of his Judgement Charles Mynors is quite careful about how
much of The Listed Building Act 1990 Section 16.2 that he quotes. He omits
to mention that 16.2 starts by saying: "In considering whether to grant
listed building consent...". He also omits the part that states quite
clearly that this clause only requires  "the local planning authority or the
Secretary of State" to do something. Instead he brings  in the wording that
the action is for "decision makers" - an altogether broader term in the
context in which it is used. Now I do not know where the phrase "decision
makers" came from nor what legal validity it may have, but if we look back
at the quote from PPG15 above, we see that "decision-making body" is used
there. Could PPG15 be the source? I don't know.  (And yes, I have checked
sections 336 and 1 of the Town and Country Planning Act 1990 where the
interpretation of "local planning authority" is given; it does not seem to
cover Chancellors or "decision makers".) 

 

(ii) In the final analysis, the whole point of a "judgement" is that it is
something that "comes out of the head" of a judge after bringing all of his
or her legal skill and knowledge of the Law to bear on the evidence
presented. If during the formation of that judgement the judge was "mindful"
of something that Parliament has stated should not apply, can we trust that
he has performed his task properly? 

 

>...operational needs of the congregation.  This is to make sure that the
building remains viable as a place of worship.  It's usually seen as
referring to issues involving the retention of pews and altar rails.

As may be, but if the Law is correctly stated at para 56 of the Judgement,
then the conclusions do not seem to take it into account. 

 

The issue here seems to be all about "the views of regular worshippers". I
would argue as follows. It is clear that pews, screens, altar rails, seats,
heating, organs etc. are the usual things under discussion. The common
factor between all of these is that they in some way relate to the regular
worshippers via their senses: sight, hearing, touch, smell and taste. (Yes,
think about it - all 5 might come into a high church communion.) Now while
the regular worshippers at Great Malvern finish their breakfasts or park
their cars on a Sunday morning, what is the first sense by which the church
reaches out to them? Yes of course it's "hearing" via the sound of bells
ringing out as they have done since 1350 and probably before. Is it not
arguable that their views on the matter should be given particular weight?


 

As before, I can't claim that this is going to lead anywhere, but I would be
interested to know whether there is any validity in these points. I'm happy
to take responses off-list if it's more comfortable.

 

Chris Frye. 

 

 

 

           
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