Recent consistory court judgments: reordering, extensions and building works

Re St John the Baptist Burford [2014] Oxford Cons Ct, Alexander McGregor Ch

The vicar, one of the churchwardens and the chairman of the PCC’s fabric committee petitioned the court for a faculty to authorise works associated with the extension of the church hall, (Warwick Hall), including: removal of two trees; relocation of memorials; removal and rebuilding gate post; alterations to churchyard wall; resurfacing of path. They subsequently applied to amend the petition to omit “alterations to churchyard wall” from the Schedule of works or proposals.  This was significant since a number of the objections to the scheme related to changes to the wall: the petitioners contended that although they still wished to carry out the works to the wall, these are not subject to the jurisdiction of the court: it is not situated on land that forms part of the churchyard or other curtilage of the church, but on land that belongs exclusively to the parochial church council as the owners of Warwick Hall.

The Chancellor confirmed [at para. 35] that:

“Unconsecrated land situated wholly outside the boundary of a churchyard (and not otherwise within the curtilage of a church – see section 7(1) of the Faculty Jurisdiction Measure 1964) is not within the jurisdiction of the consistory court even if it is a church body such as a parochial church council who owns the land in question and who intends to carry out works on that land[1]. Accordingly, if the boundary wall is situated wholly or partly within the churchyard, the wall (or at least part of it) is subject to the faculty jurisdiction. If it is situated wholly outside the churchyard it is not subject to the faculty jurisdiction.

He considered the evidence relating to the location of the boundary, [paras. 39 to 64], and held: the boundary wall is not within this court’s jurisdiction and that the works that the Petitioners propose to carry out to it do not require the authority of a faculty; allowed Petitioners’ application to omit “alterations to churchyard wall” from the Petition; and observed that the issues raised by the Parties Opponent set out in paras. 22 to 25 above fall away, [paras. 62 to 64].

With regard to the remaining matters[2], the Chancellor stated that the test to be applied was not that laid down in Re St. Alkmund Duffield [2001] (which applied to listed buildings) but the test set out by Lord Penzance in Peek v Trower [1881], viz.

 “All presumption is to be made in favour of things as they stand.  If you and others propose to alter them, the burden is cast upon you to shew that you will make things better than they are – that the church will be more convenient, more fit for the accommodation of the parishioners who worship there, more suitable, more appropriate, or more adequate to its purpose than it was before; and if you cannot shew this to the court, at least shew the court that a majority of those for whose worship the church exists desires the alterations which you propose.”

The Chancellor considered: the application of the test [paras. 84 to 91]; aspects relating to planning permission, [paras 92 to 95]; issues associated with the grand of a Licence, [paras 96 to 99]; and the possibility of restriction on the use of the hall, [paras. 100 and 101]. In summary, he was satisfied that the Petitioners had discharged the burden on them, as set out in Peek v Trower, to establish that they should be permitted to make the proposed changes to the churchyard and that there are no other factors which should result in the court declining to exercise its discretion in their favour.  Faculty granted, subject to conditions.

Re St Mary the Virgin South Hayling [2014] Portsmouth Cons Ct, Philip Waller Ch

The churchwardens of St Mary the Virgin, South Hayling sought a Faculty for the construction of an octagonal extension to the North side of the church and for related works. The construction of the extension would extend over the site of several graves which are currently marked with headstones and kerbsets, and the petition included a request for a Faculty for the removal of the headstones and kerbsets concerned, subject to relocation or the provision of substitute memorials. The families of some of those interred at the site of the proposed extension were understandably concerned about the proposed works and expressed their opposition to the plans.  Although the petition was formally unopposed, in view of the nature and impact of the proposed works and letters of opposition which had been received, the Chancellor concluded that it was appropriate for his decision and reasons to be set out in a formal judgment.

Options for relocation and for replacement of the memorials had been discussed with those concerned and the architect advised that with the building methods proposed the excavations will not reach the depth of any of the coffins beneath the site of the extension, even in the case of a double depth grave.  Care would be taken to ensure that no disturbance will take place.  The option of exhumation and re-interment was offered and is not dependent on remains being found or disturbed.

The church is Grade II* listed dating from the 13th –14th centuries and includes significant internal restoration, especially in the late 19th century.  Where external repairs have been necessary, efforts have been made to retain the essentially mediaeval appearance of the exterior.  The proposed extension is the second phase of a redevelopment project and has been planned to provide a meeting area, vestry facilities, refreshment area and toilet facilities on the north side of the church adjoining and accessed through the north door.

The Chancellor considered that the petitioners had established a clear need for the proposed extension and the facilities which it will provide. The facilities available in the church building and its immediate surrounds are wholly inadequate for the current and likely future use of the church: the needs of the clergy, congregation and others using the building cannot be met by the existing facilities either on the site of the church or in the hall across the road. The extension would be a significant addition to the exterior of the building, but he was satisfied that the size and design of the new building is in keeping with the existing building and the exterior appearance.

Whilst it was a matter of regret that established grave sites and markers will be affected by the erection of the new building, the Chancellor reached the conclusion that the proposed extension is necessary if the mission and functioning of the church is to be maintained and develop: the benefits for the church and for all who use it outweigh the adverse impact on the grave sites. He concluded that the petition should be granted and that a Faculty should issue in the terms sought. However, it is important that the feelings of the families affected are respected and steps should continue to be taken to offer suitable alternatives to them and to minimise the impact on the graves concerned, and the Faculty was subject to the following conditions:

  • the opportunity for exhumation and re-interment of the remains of any person interred beneath the site of the proposed extension should be offered to the close family of any such person; and
  • should any human remains be disturbed they are to be reverently and discreetly re-interred.

The offer of alternative options for relocation or replacement of grave markers or memorials is provided for in the terms of the Faculty

Re St Thomas of Canterbury Mumby [2014] Lincoln Cons Ct, Mark Bishop Ch

Problems of draughts and the accumulation of leaves in the porch to the south door of the church form the basis of the Statement of Needs for the fitting of a non-reflective glass doors, set back from the front of the porch as required by the condition of planning permission, but nevertheless in front of the 13th century doorway.  However, these issues were secondary to the aesthetic merits of the porch, which had been the subject of enthusiastic comment of Pevsner and Tennyson, and were clearly set out in the English Heritage opinion of 19 December 2011:

“the very fine early 13th century inner doorway has shafted reveals, stiff leaf capitals, dog tooth decorative detailing and a richly moulded head. It is of a particularly high architectural and historic interest and makes a key contribution to the significance of the church. There are important views of the inner doorway from approaches to the south porch”.

The Chancellor set out the historical context in detail, [paras. 3 to 9], and stated his belief that:

“it is important to have in mind in deciding this application, the importance of this south facing door and therefore also the decorative motifs around it, to the many generations of the Christian people who will have come to this Church over many years to worship and pursue their secular business. Even today, as one walks up the pathway towards the south door, the design of the arcade around the door continues to focus the eye from a general view of the church and the surrounding churchyard, and narrows down our focus to a single point of clarity that takes us through the door and into the house of God in Mumby.”

The Chancellor review the petition under the criteria set out be the Court of Arches’ in Re Duffield: St Alkmund [2013] 2 WLR 854] and stated:

 “if glazed doors were erected in the porch, even in the position required by the planning permission, there would be serious harm to the significance of this church as a place of special architectural and historic interest. It is inevitable in my judgement that however ‘non-reflective’ the glass doors will be, there will be a significant reduction, and possibly an elimination, of any view of the decorative arcade above the doorway as people walk up the path into the church . . . any glazed doors in the porch will disrupt the significant southern elevation of the church as it is approached up the footpath. The link between the churchyard and the church through this doorway is an important part of the architectural and historic significance of the church, and this would be seriously harmed, if not lost altogether, if the glazed doors were erected.”

Having considered the needs which the Applicants are seeking to address, the Chancellor was not satisfied that their justification for the proposals outweighed the serious harm that would be done to this building by the erection of the glass doors. He was also not persuaded that the 13th century doorway needs any further protection than that which it currently receives from the 19th century porch.

He made no judgement about the alternatives put forward by English Heritage, except to recognise that a glass partition that extended too far into the nave would be disruptive to the current open and uncluttered feel of the nave, but suggested that further thought could be given to the practicalities of such options, such as those relating to funeral services.  However, there was no requirement adjudication on these alternatives.  Faculty refused.

Re All Saints Winterton [2014] Lincoln Const Ct, Bishop Ch

As part of an extensive reordering for which a faculty had been granted, (Faculty 3808), it was intended to move a medieval font to the current location of an Edwardian font in the church [3].  The octagonal 13th century font was assumed to have been discarded in the 1650s during the Commonwealth but had been in use since 1952. The Victorian Society objected to these proposals in general, and to the burial[4] of the Edwardian font in particular.  The Chancellor considered canonical and other provisions, none of which prevents there being more than font in a church, although guidance within the authorities differ: in Re St Barnabas Kensington 1991 Fam 1 Chancellor Newsom QC held that there was no objection to there being two fonts – a baptismal pool and a ‘conventional’ font for baptism by affusion for infants – although the contrary view was put forward in Re St Nicholas Gosforth 1998 1(5) Ecc LJ 4.  With regard to the liturgical norm that there should be only one font at which baptisms take place, an article by Bishop David Stancliffe was apposite[5].

The Chancellor indicated that a proposal might be worked up to place the Edwardian font in another location in the church, where it would not be used as a font but could ‘co-exist peacefully’ with the medieval font.  If this was not practical or desired, then new plans could be placed before him for the removal of the font from the church to store or to another church. As a consequence and using his powers under the paragraph 19.3 (1)(a) Faculty Jurisdiction Rules 2013, the Chancellor directed that in respect of Faculty 3808, that part of the Schedule which states “and Edwardian font to be buried within the church” shall be deleted from the Schedule of works authorised.


[1] Section 7(1) of the Faculty Jurisdiction Measure 1964

[2] i.e. the removal of two trees; relocation of memorials; removal and rebuilding of gate post; resurfacing of path.

[3] At the time of the Restoration, a new font was commissioned in 1663 and this font was used until 1903 when the Edwardian font was donated. The 17th century font was “given away”.

[4] Regarding the ritual burial of fonts, see: Douglas, Mark (2003): The archaeology of memory: an investigation into the links between collective memory and the architecture of the parish church in late medieval Yorkshire, Durham theses, Durham University. Available at Durham E-Theses Online: also Pounds, N. J. G. (1994) The Culture of the English People: Iron Age to the Industrial Revolution. Cambridge: Cambridge University Press.  However, neither was apparently considered by the court.

[5] D Stancliffe, Baptism and Fonts [1994] 3 Ecc LJ (14) 141-148.

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