Re St. Swithin's, Norwich
| Jurisdiction | England & Wales |
| Date | 1959 |
| Year | 1959 |
| Court | Consistory Court |
Ecclesiastical Law - Faculty - Lease - Faculty to rector to grant option to take lease - Jurisdiction of consistory court. - Charity - Land held on trust for - Powers of trustees - Incumbent of living - Church vested in him - Whether he has Settled Land Act powers - Court with jurisdiction to approve grant of lease - Application for faculty to consistory court -
A faculty was sought to enable the rector, in whom the freehold of a church was vested, to grant to a bank an option to take a lease of the church:—
Held, (1) that section 29 (1) of the Settled Land Act, 1925,F1 did not apply to consecrated buildings and land such as churches and churchyards, vested in an incumbent for the duration of his incumbency (post, p. 994).
(2) That the consistory court was not a court of competent jurisdiction within the meaning of section 29 of the Charitable Trusts Amendment Act, 1855,F2 capable of approving the grant by the rector as trustee of the option; accordingly, the court could not entertain the application (post, p. 995).
PETITION for a faculty.
The rector and churchwardens of the parish of St. Swithin, jointly with Westminster Bank Ltd., petitioned for a faculty enabling the rector, in whom the freehold of the church was vested, to grant to the bank an option to take a lease of the church. The petition was unopposed.
W. S. Wigglesworth for the petitioners.
The cases cited in argument are referred to in the judgment.
June 22. J. H. ELLISON Ch. read the following judgment: This faculty suit is promoted by the rector and churchwardens of the parish of St. Swithin in the city and diocese of Norwich, together with the Westminster Bank Ltd., to whom, for the sake of brevity, I shall hereafter refer to as “the bank.” By their joint petition, dated November 28, 1958, they pray this court to decree a licence and faculty enabling the rector, in whom the freehold is vested, to grant to the bank an option exercisable on short notice at any time during the 10 years commencing Christmas, 1957, to take a lease of the church for a period of seven years, but determinable by the bank at the end of the first three or five years if they wish, at an annual rent of £225, the bank paying rates and being responsible for internal repairs and otherwise subject to the terms and conditions of a draft lease filed with the petition. The bank would only wish to exercise the option if certain special events arose. In return, the bank propose to pay the rector the annual sum of £75 until the option is exercised or determined, and the arrangement gives them the right to determine by six months' notice after the first three years. Furthermore, the bank would renew the present antiquated electrical installation in accordance with an approved scheme.
I am much indebted to counsel for his assistance in a difficult and somewhat unusual case.
The facts proved by the rector, the Reverend Arthur Richard Freeman, and by Frank Mortimer, a churchwarden, in so far as they relate to the present situation, are briefly these. Since 1871 the benefice has been united with that of St. Margaret's. The union was effected under the
I also understand that during the war years and for some time afterwards the church was used for the storage of goods by a certain commercial manufacturing company, the bishop having originally approved this under powers conferred by the Clergy (National Emergency Precautions) Measure, 1939, and the regulations made thereunder dated September 3, 1939.
As regards the proposed user of the church by the bank, at an early stage Mr. Wigglesworth made an application that the court should hear his observations and that part of the evidence in camera, on the grounds that questions of the national interest were involved which it would be undesirable to discuss in public. In my judgment, that was the proper course to be taken in the special circumstances. It would, therefore, be inappropriate for me to touch on those matters in detail in this judgment. Suffice it to say that if this court has a jurisdiction, this is a case where I should exercise my discretion in favour of granting the faculty sought. In saying this, no one should think that I am laying down a general proposition that a consecrated building when pastorally redundant may be used...
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