The Victorian Society appealed against the judgment of the Chancellor of Winchester in which he granted a faculty for the replacement of the church's existing Victorian font with a new font of Purbeck stone. The church was Grade II listed, the font being included in the listing description. The Victorian Society, the only party opponent, indicated its willingness for the proceedings to be determined on consideration of written representations, as did the petitioners. The registry stated that the papers would be sent to the chancellor, who would decide whether an oral hearing would be required. The Victorian Society heard nothing further for several months until, on enquiry, the registry stated that the chancellor had reached his decision and that a judgment would be forthcoming. The Victorian Society obtained permission from the dean to appeal on three grounds:
i. Unfairness in the way in which the written representations procedure was applied;
ii. Unfairness in relation to a site visit by the chancellor;
iii. Errors of fact and law.
The appeal was allowed on grounds (i) and (iii). The chancellor had proceeded to determine the petition without having made an order for consideration on written representations or having given directions for that purpose, as envisaged by Part 3 of the Faculty Jurisdiction Rules 2013. As a result, the Victorian Society was unfairly deprived of the opportunity to make written representations. Also unfair was the failure of the court to disclose to the Victorian Society advice which had been received from the Church Buildings Council and on which the chancellor purported to rely. It was ‘elementary that … the chancellor must not take into account any written material which has not been made available to the parties'.
As to ground (iii), the chancellor erred in finding that the church was not a nationally important building. All listed buildings were by definition of national significance because national interest is a key element in listing. As a result, the chancellor ‘carried out a strikingly under-weighted balance in favour of the special character of listed buildings'. He also applied the Duffield guidelines in an erroneous manner, his approach to the first Duffield question being undermined by a failure to consider the list description. The chancellor's approach was additionally undermined by consideration of the proposal to replace the font in isolation from a proposed re-ordering of which it formed a part. That re-ordering would involve the removal of pews and the lowering of the nave floor. These matters were not contained in the petition nor were they the subject of any other petition. Accordingly, they should not have been treated as forming any justification for the removal of the Victorian font. Finally, there was ‘no trace in the critical part of the chancellor's judgment of the “strong presumption against proposals which will adversely affect the special character of a listed building”’. The presumption was critical for maintaining equivalence with listed building control (as required in relation to the ecclesiastical exemption). As to the appellants' ground (ii), there was no impropriety in a chancellor carrying out a site visit without the presence of the parties and without giving them notice of his visit.
The petition was remitted to the consistory court to be re-determined by the deputy chancellor. The Court of Arches drew attention to a number of matters. In order to be of assistance, a statement of significance must comply with the requirements of rule 3(3) of the 2013 Rules. Registry files must include internal communications between the registry and the chancellor as these may be relevant to an appeal. General guidance was given as to the operation of the written representations procedure. Any new information that a chancellor might come across on a site visit must be drawn to the attention of the parties with the opportunity for them to comment. The concept of ‘equivalence’ with the secular system of listed building control ‘is primarily concerned with procedure, and certainly not with substantive outcome’. The suggestion in Re All Saints with St Lawrence, Evesham (Worcester Consistory Court, 14 October 2015) that the Duffield guidelines needed alteration in the light of a recent judgment of the Court of Appeal was disapproved. [Alexander McGregor]
