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Published online by Cambridge University Press: 31 July 2008
It may soon be possible, courtesy Cameron Ch as she then was, not only to lunch (as many already do) but also to dine at the crypt restaurant below St Mary-le-Bow, and to enjoy beer, cider or wine with your meal. That is a thoroughly secular use of part of a church; and it is something which would not have been permitted until relatively recent times. To Cock burn CJ in 1869 there was a self-evident distinction between ‘purposes purely secular’ and ‘those of an ecclesiastical character’, and ‘nothing short of an Act of Parliament can authorise the conversion of consecrated ground to secular purposes’. In one of his early judgments, sitting as Deputy-Chancellor, George Newsom QC declined to allow the use of consecrated land for an NCP car park, referring to consecration as ‘this special status [which] has been a striking privilege of the Church of England. It is no part of the duty of this court to seek to whittle it away’. The aim of this Paper is to explore the erosion of the divide between ‘secular’ and ‘ecclesiastical’ purposes, and to suggest that it offers a novel role for the Church both in the countryside and in towns and cities. I also touch briefly on some of the problems of rating, planning and listed building law which arise.
2 Re St Mary-le-Bow, London [2001] 1 WLR 1507, 6 Ecc LJ 164, London Cons Ct.Google Scholar
3 Cathedrals, of course, led the way in respect of facilities such as shops and restaurants.Google Scholar
4 R v Twiss (1869) LR 4 QB 407 at 413, 414.Google Scholar
5 Re St John's Chelsea [1962] 2 All ER 850 at 853, [1962] 1 WLR 706 at 709, London Cons Ct.Google Scholar
6 Re St Mary the Virgin, Woodkirk [1969] 1 WLR 1807 sub nom Morley Borough Council v Vicar and Churchwardens of St Mary the Virgin, Woodkirk [1969] 3 All ER 952, Ch Ct of York. The same test was applied where a right of way was sought over a churchyard, although the Chancellor recognised that the situations differed, because only in the former case would the land pass from the care and management of the incumbent and PCC: Re St Andrew's North Weald Bassett [1987] 1 WLR 1503 at 1508, Chelmsford Cons Ct.Google Scholar
7 Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1513, 6 Ecc LJ 164, London Cons Ct.Google Scholar
8 Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1511.Google Scholar
9 Re St Mary-le-Bow, London (1989) 8 Consistory and Commissary Court Cases no 14, London Cons Ct. This invaluable, bound collection is held only in Middle Temple Library, and I refer to it below as ‘CCCC’ The post-1995 transcripts have not yet been bound, though they can be consulted in that library.Google Scholar
10 Briden and Hanson, Moore', Introduction to English Canon Law (3rd edn, 1992), p 86Google Scholar
11 Re St Peter's, Stockton, Holy Trinity Churchyard (1986) 7 CCCC no 7, Durham Cons Ct.Google Scholar
12 By 1984, in respect of use of a consecrated cemetery, Newsom Ch was applying a slightly less stringent test than that of exceptional circumstances (‘ only if there is some substantial reason for doing so, usually because some public advantage will follow’): Re Coleford Cemetery [1984] 1 WLR 1369 at 1371 Bath and Wells Cons Ct.Google Scholar
13 A substantial restriction on secular use of churches is the requirement for a licence rather than a lease. Normally such licences are for five to ten years, although in the case of an unconsecrated church curtilage a 99-year licence was granted in 1970: Re St Peter's, Bushey Heath (1970) 1 CCCC no 14, St Albans Cons Ct.Google Scholar
14 Re Whixall Old Burial Ground [2001] 2 All ER 348, [2001rsqb; 1 WLR 995. Lichfield Cons Ct.Google Scholar
15 Re St Ann's Kew [1977] Fam 12, [1976] 1 All ER 461, Southwark Cons Ct. Cameron Ch has referred to ‘those of my generation who were brought up in an era when there was a different attitude to what was a proper use of a church building’: Re Emmanuel, Northwood (1998) 15 June, 5 Ecc LJ213, 17 CCCC no 19, p 50, London Cons Ct.Google Scholar
16 Re St Mark's Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct.Google Scholar
17 This has judicial support: Re St John the Baptist Beeston (1998) 12 March 17 CCCC no 10, p 2, Southwell Cons Ct, where Shand Ch said that ‘Nobody these days would seriously argue that proper toilet facilities are anything but appropriate in such a place of worship’;Google ScholarRe St. John the Baptist, Great Kissington (1993) 3 Ecc LJ 121, Gloucester Cons Ct.Google Scholar
18 Re St John the Evangelist, Blackheath (1998) 5 Ecc LJ217, 17 CCCC no 26, p 11, Southwark Cons Ct.Google Scholar For the importance of refreshments in attracting and welcoming people to services, see Re St Mary's, Kings Worthy (1998) 5 Ecc LJ 133, 17 CCCC no 8, Winchester Cons Ct; and Re St Peter, Pedmore (1998) 17 CCCC no 29, para 46, Worcester Cons Ct. A coffee bar in the corner of a church has been held to be necessary for mission. quoting Bishop Michael Marshall on the incarnational implications of the fusion of what might superficially be regarded as the ‘sacred’ and the ‘secular’: Re St Mark, Woodthorpe (1998) 5 Ecc LJ 132, 17 CCCC no 5, p 2, Southwell Cons Ct;Google Scholar but see Boydell Ch's opinion that the serving of coffee might prove no more than ‘ a passing fashion’: Re St Helen, Abingdon (1986) 1 Ecc LJ (1,2) 37, Oxford Cons Ct.Google Scholar
19 Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1511, 6 Ecc LJ 164, London Cons Ct.Google Scholar
20 Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
21 Re St Nicholas's, Guildford (1985 6 CCCC no 25, Guildford Cons Ct. He also referred to day centres and nursey schools in Re St Mark's, Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct.Google Scholar
22 In Attorney-General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford [1976] AC 363 at 377, [1975] 2 All ER 337 at 345, HL, construing the then scope of the ecclesiastical exemption from listed building control, Lord Cross of Chelsea said that ‘“ecclesiastical purposes” is a vague phrase’, because it is capable of both a wide and a narrow meaning. The House of Lords left the meaning open, whereas the Court of Appeal ([1975] QB41, [1974] 3 All ER 273) favoured a narrow interpretation, excluding ‘purposes loosely connected with Christian worship’ (per Stephenson LJ at 52 and at 278), and excluding church bazaars, jumble sales and coffee parties, and even some meetings which began with a prayer (per Lord Denning MR at 49,50 and at 277).Google Scholar
23 Campbell v Paddington Parishioners and Inhabitants (1852) 2 Rob Eccl 558, London Cons Ct, a decision of Dr Lushington sitting as Chancellor.Google Scholar
24 R v Twiss (1869) LR 4 QB 407 at 413. But a faculty for a church school on consecrated land was granted in Corke v Rainger and Higgs [1912] P 69, Ct of Arches.Google Scholar
25 Re Christ Church, North Brixton (1990) 9 CCCC no 31, Southwark Cons Ct. The Café Van Gogh now operates in a corner of the church and about 50 per cent of the interior of the church is devoted to second-hand retailing.Google Scholar
26 Re St Nicholas's Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
27 A day-time café operates in Robert Potter's newly created crypt beneath St Nicholas, Sevenoaks, in the Diocese of Rochester.Google Scholar
28 Re St Mary-le-Bow, London (1989) 8 CCCC no 14, London Cons Ct).Google Scholar
29 The faculty is referred to in Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5, Lands Trib. The range of goods sold in 1987 is listed at 6.Google Scholar
30 I am grateful to the Registrar of the Diocese of London for this example and that of St James, Norlands, referred to below. The first such licence of which I am aware is the unopposed faculty granted by Ashworth Ch in 1954 to use the basement of a London church for the commercial storage of papers, criticised in Re St John's, Chelsea [1962] 2 All ER 850 at 857, [1962] 1 WLR 706 at 715, London Cons Ct. In Re St John's, Chelsea, at 857 and at 714, the Deputy Chancellor held that the jurisdiction to authorise secular uses was narrowly confined, but twenty years later the approach of Newsom Ch was less strict.Google Scholar
31 Re St Botolph Without Aldgate (1988) 8 CCCC no 6, London Cons Ct.Google Scholar
32 Re St Mark's, Biggin Hill (1991) 10 CCCC no 8, Rochester Cons Ct. The precedent was set by Boydell Ch, who permitted a mast on a church tower for the benefit of aircraft: Re St Jame's, Bishampton [1961] 2 All ER I, [1961] 1 WLR 257, Worcester Cons Ct.Google Scholar
33 Re All Saints', Harborough Magna [1992] 4 All ER 948 at 950, [1992] 1 WLR 1235 at 1237, Coventry Cons Ct. See Re St Mary the Virgin, Woodkirk [1969] 1 WLR 1807, sub nom Morley Borough Council v Vicar and Churchwardens of St Mary the Virgin, Woodkirk [1969] 3 All ER 952, Ch Ct of York.Google Scholar
34 R v Twiss (1869) LR 4 QB 407 at 413.Google Scholar
35 Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
36 On 9 September 2001 I granted a further five-year extension of the licence, terminable at the end of each year by either party giving not less than six months' notice in writing.Google Scholar
37 Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1514, 6 Ecc LJ 164, London Cons Ct.Google Scholar
38 Re St Ann's, Kew [1977] Fam 12, [1976] 1 All ER 461, Southwark Cons Ct.Google Scholar
39 Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
40 Report of the Archbishops' Council on Rural Areas (1990), cited in Re Whixall Old Burial Ground [2001] 2 All ER 348, [2001] 1 WLR 995, Lichfield Cons Ct.Google Scholar
41 Shand Ch has said that ‘the distinction between “secular” and “sacred” is often impossible to maintain practically or theologically’: Re St Paul, Carlton-in-the-Willows (1997) April, 16 CCCC no 7, p 3, Southwell Cons Ct, considering a proposed re-ordering to include community facilities.Google Scholar
42 Re St John's, Chelsea [1962] 2 All ER 850 at 853, [1962] 1 WLR 706 at 709, London Cons Ct.Google Scholar
43 Re St Mary-le-Bow, London [2001] 1 WLR 1507 at 1514, 1516, 6 Ecc LJ 164, London Cons Ct.Google Scholar
44 Examples from the Indian sub-continent are the Hindu temple at Madurai (an astonishing mixture of the sacred and the secular) and the Mosque at Ajmer which incorporates educational, hospital and soup-kitchen facilities. Both are very considerable complexes. An extreme (and atypical) instance would be the Mosques at Lahore, where, according to Adnan Ali, a gay Muslim, ‘you would go just to cruise and meet people because they were such social place' (Guardian, 30 08 2001, emphasis added).Google Scholar
45 Jenkins, Simon, England's Thousand Best Churches, pp xxxii–xxxiii (‘A parish church is a church open to all. A church shut except for services is a private meeting house of a sect’). The phrase ‘ring-fence space for prayer’ comes from an editorial on attempts made by English cathedrals to promote tourism (Church Times, 24 August 2001).Google Scholar
46 In Re St Paul, Carlton-in-the-Willows (1997) 16 CCCC no 7, Southwell Cons Ct, Bishop Michael Marshall's Free to Worship (revised edn, 1996) pp 177–181 was quoted: ‘by incorporating secular uses the church building could play a significant role in the community, bridging in some way the gap between the sacred and the secular… convert[ing] a problem building into a glorious opportunity for service and growth’.Google Scholar
47 Our Countryside: The Future—A Fair Deal for Rural England (2000), Cm 4909.Google Scholar
48 Church Times, 24 August 2001, reporting an arson attack on this inner city church and community centre. The vicar kindly supplied me with a sketch plan, showing that the building has a sanctuary separated off by sliding screens from the main hall, the latter of which is used both for worship and for variety of other activities including use by youth clubs; there are also numerous ancillary rooms. In the Diocese of Southwark, St Saviour, Peckham, remains wholly within the faculty jurisdiction, although the greater part of the church building was converted in the early 1980s into the Coplestone Centre, offering advice and community facilities.Google Scholar
49 Local Government Finace Act 1988, s 51, Sch 5, para 11 (1).Google Scholar
50 Ibid, Sch 5, para 11 (2) (substituted by the Local Government Finance Act 1992, s 104, Sch 10, Pt 1, para 3). ‘Office purposes’ is defined in the 1988 Act, Sch 5, para 11(3) (as so substituted).Google Scholar
51 Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 10, Lands Trib.Google Scholar
52 Glenwright (Valuation Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5, 6, Lands Trib. The company was held not to be the agent or alter ego of the PCC: p 10.Google Scholar
53 Ryde on Rating D[617]–D[627]. See also D[653]–D[700], where the same tentative view (‘appear to create rateability’) is expressed.Google Scholar
54 Morley (Valuation Officer) v SPCK [1959–1960] 6 Ryde's Rating Cases 391 at 397.Google Scholar
55 Works which affect only the interior of a building do not require planning permission: Town and Country Planning Act 1990, s 55(2)(a)(i).Google Scholar
56 Re St Nicholas's, Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
57 Emma Hotels v Secretary of State for the Environment (1980) 41 P &CR 255, CA.Google Scholar
58 Town and Country Planning (Use Classes) Order 1987, SI 1987/764, art 3, Sch D, Class D1.Google Scholar
59 Glenwright (Valution Officer) and Durham City Council v St Nicholas Parochial Church Council [1988] RA 1 at 5, Lands Trib.Google Scholar
60 Re St Nicholas's Guildford (1985) 6 CCCC no 25, Guildford Cons Ct.Google Scholar
61 Attorney-General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford [1975] QB 41 at 50, [1974] 3 ALL ER 273 at 277, CA. The decision was reversed on other grounds: [1976] AC 363, [1975] 2 All ER 337, HL.Google Scholar
62 ‘The Community Use of Churches’ (2000) 5 Ecc LJ 348 at 349.Google Scholar
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