Phillips v Minister of Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PEARSON,LORD JUSTICE DIPLOCK |
| Judgment Date | 12 May 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0512-3 |
| Court | Court of Appeal |
| Date | 12 May 1964 |
[1964] EWCA Civ J0512-3
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Roskill
The Master Of The Rolls (Lord Denning)
Lord Justice Pearson and
Lord Justice Diplock
MR R. E. MEGARRY, Q. C. and MR D. H. McMULLEN (instructed by Messrs Markby, Stewart & Wadesons) appeared as Counsel for the Appellant.
MR NIGEL BRIDGE (instructed by the Solicitor, Ministry of Housing and Local Government) appeared as Counsel for the first Respondent.
MR JOHN DAVIES (instructed by the Solicitor, London County Council) appeared as Counsel for the second Respondents.
This case raises a short point under the Town and Country Planning Act. Under Section 30 a local planning authority can make a special order to preserve a building which they consider to be of special architectural or historic interest. They can restrain its demolition, alteration or extension except under certain safeguards. The London County Council, supported by the Minister, seek to make such an order in regard to No. 6, Gower Street. That is one of a very fine row of houses which are of great architectural merit. The houses as a whole are no doubt properly the subject of a building preservation order. But this one, No. 6, is the Rectory of St. George's, Bloomsbury; and the Church Authorities draw attention to Section 30, sub-section (2), which says that a building preservation order shall not be made in respect of "an ecclesiastical building which is for the time being used for ecclesiastical purposes". They say that this house. No. 6 Gower Street, being the Rectory of the parish, falls within that exception and that no such order can be made which includes it.
There is no definition in this Act of what is an "ecclesiastical building". There was no definition in the original Act from which this derives, the Ancient Monuments Act of 1913. What is the proper test for the Court to apply? It seems to me that a building, in order to be an ecclesiastical building, must be owned by the Ecclesiastical Authorities. It must be owned by them as freehold or as leasehold. In addition, it must, I think, have some further ecclesiastical attribute. Let me take some illustrations. Any church which is open for public religious worship is obviously an ecclesiastical building. So also is a vestry or a chapter house. Equally I should have thought a theological college. So also a bishop's palace, In such cases, in addition to ownership by the Ecclesiastical Authorities, there is also a further attribute showing that it has an ecclesiastical quality.
Now what about a rectory? A rectory of the Church of England has for centuries been recognised to have special attributes connected with the church. It is vested in the incumbent for the time being as a corporation sole. It is a house set apart, not merely as his residence, but so as to be used by him for his spiritual, pastoral and parochial duties. He cannot leave it except with the consent of the bishop; and if he falls to reside in it, the bishop can order hint to go back; and any occupier can be expelled to make room for him. In the case of the Bishop of Gloucester v. Cunnington, 1943, 1 King's Bench, p. 101, this Court held that, by reason of the special attributes attaching to a rectory or a parsonage, such houses did not come within the Rent Restriction Act. Furthermore, within the last forty years the Ecclesiastical Authorities of the Church of England, under the Dilapidations Measure, which dates back to 1923, do exercise control over any repairs, alterations, or demolition of parsonage houses. In these circumstances it is quite plain to my mind that a rectory or a parsonage house of the Church of England has special attributes, more than mere ownership, which show it to be an "ecclesiastical building".
Mr Bridge was almost forced to concede that the words "ecclesiastical building", analysed strictly, would cover a rectory, Most of his argument was devoted to going back to the original Act of 1913 and arguing that, as a dwelling house was excluded from being an ecclesiastical building under that Act, therefore a dwelling house should be excluded from being an ecclesiastical building under this Act. It seems to me that this argument on the 1913 Act should not prevail. There was no definition of "ecclesiastical building" there. The exception of a dwelling house only applied to particular sections of that Act. There is no basis for his general assertion that dwelling houses were excluded.
Once a rectory is found to be an ecclesiasticalbuilding, the rest follows. It is plainly "being used for the time being for ecclesiastical purposes". It is the centre of all the spiritual and pastoral activities of the rector in regard to the parish. I think that it comes within the exception.
I would, therefore, say that this rectory cannot be made the subject of a building preservation order and I would allow the appeal.
I agree, and I will add a few words only because we are differing from the decision of the learned Judge.
The question to be decided arises under Section 30 (1) and (2) of the Town and Country Planning Act 1962. The provision in sub-section (2) is that "a building preservation order shall not be made in respect of an ecclesiastical building which is for the time being used for ecclesiastical purposes". The question here is whether the rectory, No. 6 Gower Street, used as the rectory of St. George's, is "an ecclesiastical building which is for the time being used for ecclesiastical purposes". It is used by the Rector of St. George's as his own house and also in the way that a rectory is normally used for the purposes of the parish duties of a rector. I would agree that it may be sufficient to satisfy the words "ecclesiastical building" in this particular context here, to say that it is a building owned by the church or by some church authority. But I am not convinced of that and I think it is better to go on to enquire what are the other factors which may point to the conclusion that this is an ecclesiastical building. First of all, it is a rectory, and a rectory as such, indeed any personage house, is owned by the incumbent as a corporation sole for the benefit of himself and his successors.
The second point is that it is provided by the church as a resident for the incumbent, the rector or vicar, in order that he may reside in a convenient house within the parish for the better performance of his parochial duties. It is wellknown in fact that a rector or vicar has to use his...
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Attorney General ex rel. Bedfordshire County Council v Howard United Reformed Church Trustees. Bedford
...10 The first question is whether the Howard church is an "ecclesiastical building". We considered those words in Phillip's Case (1965) 1 Q.B. 156. To satisfy these words the building must be owned by the ecclesiastical authorities - as freehold or lease hold - and it must have some other ec......