Consistory Courts exercise the powers granted to the Church of England, as the established church,  to police its own planning controls.  Through their faculty jurisdiction the Consistory Courts provide a system of control to ensure that Anglican churches and other ecclesiastical property such as churchyards and burial grounds meet certain criteria.  Hence a faculty must be issued before any changes can be made to a church or church  property, even to the extent of cutting down a tree in a churchyard, or before any chattels of the church such as a painting or silverware can be disposed of.

There are times however when the secular and the ecclesiastical merge and a Consistory Court is asked to make a decision which has nothing to do with ecclesiastical matters.  Such an occasion arose when the Royal Borough of Kensington and Chelsea wished to instal a sculpture in Dovehouse Green, Chelsea, a public garden managed by the borough as an open space.

The installation was intended to mark the centenary of the birth of the sculptor Sir Eduardo Paolozzi (1924 to 2005) a highly regarded British artist who had substantial connections with the area, having lived and worked in Dovehouse Street.

The sculpture by Sir Eduardo was over nine feet high and was of the head and shoulders of Oscar Wilde, lying on its side, with an inscription relating to Oscar Wilde on the reverse.  It was to be placed on a plinth at the southern end of Dovehouse Green on the King’s Road side.  The public would be allowed to climb on the base of the sculpture.

The funding, maintenance and insurance for the project were to be met by the Borough Council, which regarded the project as the enhancement of open space by giving the public the opportunity to access and interact with artwork in an open space.

Why this court?

Why, you may ask, was that a matter for an ecclesiastical court?  The answer is that Dovehouse Green was consecrated ground, having been consecrated in 1736 as the burial ground of the local parish church, Saint Luke’s, Chelsea. In 1882 a mortuary was constructed and the remaining ground was laid out as a garden for the recreational use of inmates of the adjoining workhouse.  After war damage in the second World War the garden was developed with a small part open to the public and in 1977 it was named “Dovehouse Green” and re-landscaped for the Silver Jubilee of Queen Elizabeth II.

Because of its history, the installation required planning permission from the secular authorities as well as a faculty from the Consistory Court, although Dovehouse Garden is a public garden and not visibly attached to a church.

The ecclesiastical and secular nature of the project was reflected by the fact that the petitioners for the faculty were the Rector of St Luke’s Chelsea, the Reverend Brian Leathard, and the Senior Project Manager of the Kensington and Chelsea Borough Council, Sarah Brion.

A singular objector

When public notice of the proposed installation was published, one person, who identified himself only as “B”, objected.  B declined to join the proceedings as a party opponent but requested that his objections be taken into account by the Consistory Court of the Diocese of London which heard the petition.  The Consistory Court acceded to B’s request, although the matters he raised were more akin to secular issues.

B objected to the sculpture in strong terms because, he said, it was aesthetically unacceptable as being artistic brutalism from an earlier age.  The Chancellor rejected that submission and said that, objectively , “Sir Eduardo’s work was both significant and recognised.”  Although his work would “doubtless divide opinion,” the Chancellor said, “the art of any era [had] often been received initially with less praise than [had] ultimately been bestowed upon it.”  This work would have its admirers and detractors, but it was clearly a substantial work by a highly regarded artist, and there was no basis for refusing it on aesthetic grounds, the Chancellor ruled.

B also objected to the sculpture on the ground that the moral character of the subject, Oscar Wilde, made its location on consecrated ground offensive.  The work of Oscar Wilde was essentially lightweight, B said, and of no real artistic significance.

The objection on the ground of Oscar Wilde’s moral character was, the Chancellor said, “grossly overstated.”  As to the quality of Wilde’s literary reputation, although it was the case that Wilde’s style of writing did not appeal to all tastes, the Chancellor pointed out that Wilde had had a very successful reputation as a playwright until his trials and convictions,  and in the more modern era had received acclaim both for his plays and his other published work.

It was not his “function to act as a literary critic,” the Chancellor said, but he was “satisfied that [Wilde’s] work is generally considered to be of much higher quality than is alleged by B.”  It was also “important to remember that the sculpture is being placed in Dovehouse Green primarily in recognition of Sir Eduardo rather than Wilde”.

B’s final objections related to criticisms of the Borough Council’s policies including budgetary ones.  The Chancellor refused to rule on those secular matters, which, he said  were not for the Consistory Court.  Spending decisions were relevant to an ecclesiastical court only  if they were matters relating to spending by a parochial church council which imperilled a church’s financial obligations.

The faculty was granted prior to the grant of planning permission, although normally planning permission should be sought first.

The judgment has been indexed as In re St Luke, Chelsea [2024] ECC Lon 3.

 

Shirani Herbert, Barrister, is a law reporter currently based in the UK Supreme Court.

 

Featured image shows the proposed sculpture, photograph © The Paolozzi Foundation, reproduced with permission.

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