Scottish Court of Session Decisions

This was an appeal to the Lord Ordinary on Teind Causes under the Ecclesiastical Buildings and Glebes Act 1868.

In September 1883 the appellant, the Rev. C. MacEchern, minister of the Gaelic Church, Inverness (who had received from an architect a report stating that the church was in a dangerous and unhealthy state), presented a petition to the Presbytery of Inverness praying for a visitation of that church, and for a finding by the Presbytery as to its condition, and that thereafter the Presbytery appoint the necessary repairs and alterations to be made by the heritors. The petition stated that the seats and woodwork generally were ruinous, insufficient and uncomfortable, and in part unsafe, that the plaster of the roof threatened to fall, that the church was damp and unhealthy owing to part of it at the southern

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end and western side being below the level of the graveyard; that the vestry was thereby rendered practically useless; that in consequence the church floor would need to be raised; and that the heating arrangements were unsatisfactory and even dangerous.

The Presbytery instructed a report to be made by a man of skill, and one was returned stating that the walls were in a dangerous state, that the roof was so decayed and out of repair that it would not resist a severe strain, such as a heavy snowfall, that the gallery timbers were decayed, bent, and unfit for the weight they had to carry, that the wood of the windows and pews was decayed, and that the latter were inconvenient and uncomfortable; that the ventilation was defective, and the church damp and uncomfortable.

The heritors obtained a report from an architect, who was of opinion that certain repairs were required, the cost of which if substantially executed he estimated at £350 to £380.

This report was laid before the Presbytery on behalf of the heritors. Meantime there had been a visitation by a committee of the Presbytery appointed to visit and inspect the church and report upon its state. They, in consequence of what they saw at their visitation, and of the reports of men of skill, reported to the Presbytery that the church was ruinous and dangerous and unsafe, and that the present building was incapable of being repaired so as to be rendered safe and suitable.

A new committee of Presbytery was appointed on 4th March 1884 to confer with the minister of the parish and the committee of heritors with the view of bringing about an amicable and satisfactory arrangement.

On 1st July 1884, in pursuance of a recommendation by this committee, the Presbytery instructed Mr Lawrie, architect, to report on the condition of the fabric of the church.

Mr Lawrie reported that it was in considerable disrepair but not ruinous, nor, except the main ceiling, dangerous. He reported that repairs and improvements were needed, which (exclusive of a new heating apparatus which he also recommended) would cost £800 to £900.

At a subsequent meeting of Presbytery there was laid before the Presbytery a minute of the heritors' committee stating that while considering that many of the things recommended by Mr Lawrie did not fall within the legal obligation they were resolved to adhere to a resolution come to at a joint meeting of the committees of the heritors and presbytery—viz., that the church be substantially repaired at the sight and to the satisfaction of Mr Lawrie. Consideration of the matter was adjourned.

Thereafter the Presbytery on 4th November 1884 renewed consideration of the matter and a motion was made to “Find, on taking a conjunct view of said reports, that said church is in a ruinous and dangerous condition, and unsafe for the attendance of parishioners on Divine service, and that it is incapable of being repaired so as to be rendered safe and suitable for the purpose; further, that the present site of the church is unsuitable and improper; that the church must necessarily be removed to a more suitable and convenient situation; and therefore decern and ordain the said church to be taken down, and a new church of modern design to be built for the said united parishes of Inverness and Bona, capable of affording accommodation for 1200 sittings; to design and set apart a piece of ground in a convenient situation and of proper dimensions and quality as a site for the church; to ascertain the value of the said piece of ground, and to ordain the persons in possession to remove therefrom, and agreeably to such plans as may be approved of by the Presbytery; and appoint the petitioner, or the heritors of the parish, to procure the necessary plans, specifications, and estimates, in order to the rebuilding of said church in a proper and central situation, and to lay the same before the Presbytery at a meeting to be held by them here upon Tuesday the 2nd December next, with certification.” This motion was carried.

The heritors appealed to the Sheriff-Substitute under the Ecclesiastical Buildings and Glebes (Scotland) Act 1868, craving him to stay the proceedings before the Presbytery and dispose of the same himself.

The Sheriff-Substitute ( Blair), before answer, remitted to Mr Maitland, architect, to visit and inspect the church, and having regard to the previous reports of men of skill above referred to, to report (1) “whether the church be capable of repair, and at what expense; (2) At what expense a new church can be built sufficient to accommodate the same number of persons as the old church, minus the value of the materials of the old church capable of being sold or usefully employed in building the new one, and further, to report any point or points touching the alteration or repair of the church or the building of the new one that may appear to be proper to be kept in view, or that either party shall suggest as material to the issue.”

Mr Maitland reported that the church was quite capable of repair, but that it required extensive repairs in the interior, including a new floor, new seating, and a new gallery. To improve ventilation he recommended also certain alterations on the ground surrounding the walls.

He estimated the cast at £1060, not including a new heating arrangement, it being undecided whether heritors are bound to provide such.

As regards the second question remitted to him, he reported that a new church such as was suggested in that question, and on the same site, would cost £2500.

The Sheriff-Substitute interdicted the proceedings complained of, and found that the church was capable of being repaired so that it could be made a safe and serviceable church, and that the heritors were bound to repair it. He further ordained them to give in plans, specifications, &c., for its repair.

“ Note—It is always a question of circumstances whether a church is capable of being repaired, or whether it must be taken down and rebuilt. When the old church admits of proper repair, the Court never sanctions a new one. On the other hand, when the fabric has become ruinous, or can only be repaired at a cost equal or nearly equal to the expense of rebuilding, the Court refuses to allow a repair. The Court is generally guided as to this by the report of skilled persons, and when a report is deliberately resorted to and obtained in this way, it is the evidence on the subject reported on, and unless good objections can be substantiated against it, it must be taken as the verdict of the proper

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tribunal for the ascertaining of the facts forming the subject of the remit. ( Bertram, &c. v. Presbytery of Lanark, 20th July 1864, 2 Macph. 1406).

Mr Maitland reports that the repairs necessary to render the present building safe and serviceable will cost £1060, leaving out of account the introduction of a new system of heating by hot-water pipes, which may, perhaps, be superfluous, and that the expense of a new church of the same character and accommodation as the old one would cost £2500, after making allowance for the old materials capable of being sold or usefully employed in building a new one. It thus appears that the expense of repairing is £190 less than one-half of the cost of rebuilding. In these circumstances this case must be ruled by the case of Murray v. Presbytery of Glasgow, 11th December 1833, 12 S. 196, and the heritors held not bound to rebuild. See also Gordon v. Gordon, 21st January 1846, 16 Jur. 595.”

The Rev. Mr MacEchern appealed to the Lord Ordinary on Teind Causes.