Consistory courts catch-up, December ’14

This post includes links to, and brief summaries of, recent consistory court judgments concerning exhumation, reordering of churches and a range of other topics. In addition, there is a summary of earlier posts relating to specific aspects of the faculty jurisdiction .

Reordering, extensions and other building works

Re All Saints Cottenham [2013] Ely Cons Ct, Anthony Leonard Ch. Following a consideration of the principles in Re St. Alkmund Duffield, a faculty was granted for a range of works required for the reordering of the church, with the exception of the removal of pews west of the cross aisle (other than those next to a proposed ramp).

In view of the fact that this was first Consistory Court to be held in Ely Diocese “for a great many years”, and because the Bishop encouraged all the parishes to explore how the space within a Church can best be adapted to encourage its wider use the Chancellor was invited to provide some general guidance as to applications for Faculties to reconfigure the interior of Churches. This general guidance is contained as a Postscript to the Judgment. 

Re St Cuthbert Amble [2014] Newcastle Cons Ct, Euan Duff Ch. Permission was sought for a confirmatory faculty following an Archdeacon’s licence: this had permitted temporary reordering to create the opportunity for the Parish to experiment with the more creative and welcoming use of the space created, as part of a 2012 Mission Action initiative. Comprehensive consultation on the proposals indicated wide agreement on the potential of such changes to continue to enhance the ministry of the Church in Amble. The Chancellor found that it wholly appropriate to grant the faculty sought, and whilst not doubting the sincerity of the lone objector’s views, equally had no doubt that these concerns were misplaced and that the proposed works were appropriate and beneficial.

Re St Mary Lenham [2014] Canterbury Cons Ct, Morag Ellis Comm. Gen. Whilst the substance of the petition was to relocate the 15th century font and remove a single pew at the rear of the nave, the Commissary General expressed concerns at the continued use of a mobile font. A faculty was granted for moving the font, and whilst the use of the mobile font was not precluded, discussion with the Archdeacon was recommended: the liturgical rationale for the easterly position of the 15th century font would be destroyed by the use of a mobile font for many baptisms, and such a practice “would also detract from the heritage significance of this beautiful mediaeval object.”

Re All Saints Filby [2014] Norwich Cons Ct, Ruth Arlow Ch. Reordering of a Grade II* listed church to facilitate the attraction of new generation of worshippers. Proceeds from 2013 sale of church hall, deemed uneconomic to repair, were to be applied to adapting church building for its use in mission and outreach. Objections were received from the Victorian Society concerning the removal of pews from the north and south aisles, and from a public petition in the village, the latter containing significant inaccuracies. The Chancellor noted: “ . . in my view, public petitions can rarely, if ever, hold great evidential value before this Court. Public petitions will usually, at best, demonstrate no more than a general sense of public concern or dissatisfaction to the Court.” Re St. Alkmund Duffield [2013] applied; Faculty granted, subject to conditions.

Re St Mary Magdalene Lyminster [2014] Chichester Const Ct, Mark Hill Ch A faculty was sought for the permanent removal of 19th century pews and other works previously been authorised by Archdeacon’s licence for this Grade I listed church. English Heritage commended the project and the Victorian Society did not wish to comment. The Chancellor took into account two letters of objection from parishioners whose principal concern was the lack of demarcation on the floor covering adjacent to a war memorial. Faculty granted. [Top of Page]


Error in burial

Re St John Washingborough [2014] Lincoln Cons Ct, Mark Bishop Ch. The Chancellor granted a faculty for exhumation, finding that there were sufficient special circumstances to justify him doing so. The undertakers had failed to ensure that the grave digger had dug the grave sufficiently deep; the coffin had become exposed to the surface at one end; and ground anchors supporting the headstone had pierced the top corner of the coffin and the coffin lid was broken or had rotted since burial. The cost of the exhumation, including the faculty fees, would rest with the undertakers. [Top of Page]


Re Tixall Road Cemetery Stafford [2014] Lichfield Cons Ct, Stephen Eyre Ch. A petition was refused for the exhumation of cremated remains of petitioner’s father in order that they might be scattered together with those of the subsequently deceased mother on the banks of the river Tyne. Although these were the stated wishes of the mother, the Chancellor stated that where remains have been committed to the care of the Church, they should only be disturbed if the Court can be satisfied that appropriate arrangements are in place for the continuing protection of the remains. Re Tixall Road Cemetery, Stafford, [2014], Exhumation

Re Marjorie Kennedy deceased (2) [2014] Manchester Cons Ct, Geoffrey Tattershall Ch. An application was dismissed for leave to appeal against an earlier decision of the Chancellor not to allow exhumation [Re Marjorie Kennedy deceased [2014] Manchester Cons Ct, Geoffrey Tattershall Ch.]: the facts did not warrant an exception to the presumption of the permanence of Christian burial, the present cemetery relatively short distance from the petitioner’s home. Although not in application, there was no reason why he himself could not in due course be buried nearby with his wife rather than seeking her exhumation.

Church Treasures/Sale of Paintings/Loans/Memorials

Re St. Andrew Hexham [2014] Newcastle Const. Ct, Euan Duff Ch. The petitioners sought a faculty to dispose by sale of the painting “The Descent of Christ from the Cross” (a.k.a. “The Deposition”) from the workshop of Pieter Coecke Van Aelst, and to remove the copy of the painting hanging in St Etheldreda’s Chapel in the church. The original had not hung in the Abbey since 1989 and its current custodian, the Shipley Art Gallery, Newcastle upon Tyne. However, it had not been on display “for some time” and in 2011 the Gallery indicated that it no longer wished to store or insure the painting. From the time of its removal from the Abbey until the present, a photographic copy of the painting has hung behind the altar in St Etheldreda’s Chapel, and “is one of the first things that one sees upon entering the Abbey.”

The submissions contention that the painting “is more in tune with another period and more Catholic than Anglican” was rebuffed by the Chancellor on two points: the logic of the argument and consistency with previous PCCs. He noted that a painting of this genre (by Andrea del Sarto, 1486 to 1530, showing Mary and the infant Christ meeting Elizabeth and the infant John the Baptist), was prominently located above the high altar; he said:

“whilst the image above the high altar is much easier and gentler than the more difficult representation of the Descent of Christ from the Cross, it is equally from another period and, in my judgement, more Catholic than Anglican [20]. He also commented, pointedly [26], “the current PCC has taken the view that display in the Abbey is not appropriate. Quite clearly previous PCCs from 1947 through to 2011 took a different view in relation to the painting or its copy.”

The judgment benefited from the contemporary Court of Arches consideration In Re St Lawrence, Oakley with Wootton St Lawrence, and in refusing the petition, the Chancellor stated: “When I … pose to myself the question: ‘Have the petitioners demonstrated factors of such qualitative weight as to outweigh the strong presumption against sale?’ I find that I am driven to the conclusion that the only proper answer to that question is ‘No’”. With regard to the future of the painting, he suggested that the PCC should “urge them to absorb the guidance offered [in Wootton St Lawrence] and to say that their starting point ought to be retention of ownership of The Deposition and its visibility either in the Abbey, or elsewhere locally, or at least nationally and that they should proceed from that starting point.”

Re All Saints Houghton [2014] Winchester Cons Ct, Christopher Clark Ch.This case bears some similarity to that of St. Andrew Hexham in that: the painting Ecce Homo was a gift to the church (in 1921); was attributed to the school of Francesco Albani; its sale was sought by the PCC on the grounds of (a) the high cost of insurance (b) the likelihood of theft (c) expensive restoration was required (d) was not an essential part of the Church’s architecture, worship or heritage; its sale was opposed by the CBC. However, its estimated value was substantially less than The Deposition and funding was more of an issue to the church’s small congregation.

The Chancellor considered that the Petitioners’ case was aptly covered in the Court of Arches judgment St. Peter’s, Draycott [2009], and applying In re St. Alkmund, Duffield [2012], was satisfied that: the sale would not result in harm to the significance of the Church as a building of special architectural or historic interest; the Petitioners had rebutted to the requisite standard the ordinary presumption in faculty proceedings in favour of things as they stand; and benefit to the church and its congregation from carrying out the sale far outweighs any such harm as may occur. Faculty granted. [Top of Page]


Re All Saints Sharrington [2014] Norwich Cons Ct, Ruth Arlow Ch. The petitioners sought permission for the installation of wireless broadband equipment in the tower of the Grade I listed church; the installation is to be undertaken and funded by WiSpire Limited (‘WiSpire’): WiSpire is a joint enterprise between the Diocese of Norwich and internet service provider, FreeClix, established to deliver improved broadband internet services across the county of Norfolk, especially to rural areas where services can at times be poor. The issues considered by the court were: standing of the (related) complainants, two of whom resided outwith the parish; the jurisdiction of the court relating to the impact of its decisions “beyond the boundaries of the church and its curtilage”; and the Duffield issues, particularly those relating to the alleged health impacts of the broadband equipment.

The Chancellor was satisfied that the petitioners had discharged the burden of showing that, on the balance of probabilities, a faculty should be granted in this case. A faculty was granted, subject to conditions directed at ensuring long term compliance with national and international guidance about emissions and securing the integrity of the building.

In view of the technical nature of the petition and issues raised, this will be covered in more detail in a later post, which will include a consideration of Re All Saints Postwick [2011] Norwich Cons Ct, Paul Downes Chin which the ‘WiSpire’ initiative of the diocese and the potential health effects were addressed. [Top of Page]

Churchyards and burials

Re St Andrew Fairlight [2014], Chichester Cons Ct, Mark Hill Ch. A faculty was refused for a memorial in the form of a Celtic cross; neither the design nor the proposed inscription “Free Spirit” of which were approved by the DAC. However, the Chancellor was minded to approve a slightly revised design but not the inscription, as the words “do not convey anything of Christian belief nor the hope in the resurrection as is appropriate in a consecrated burial ground.” The Chancellor directed that the order be stayed for six weeks, to give time for an alternative inscription to be approved, subject to which “a faculty would in all likelihood issue”.

Re St Leonard Blithfield [2014] Lichfield Cons Ct, Stephen Eyre Ch. This concerns the refusal of a petition to reserve a grave plot next to that of deceased daughter: there was no exceptional reason to override PCC’s long-term “first come, first served” policy, and to do so would create risk of real injustice to those who had accepted this policy. [Top of Page]


Re St Richard Aldwick [2014] Chichester Cons Ct, Mark Hill Ch. The petitioners sought a faculty to decommission and dismantle the existing pipe organ and store it within the church, and replace it with a Makin Thirlmere digital organ. The relative merits of pipe- vs electronic organs are often explored by the consistory courts of this and other diocese, but “each case turns on its own facts, and there is no presumption in favour of pipe of digital instruments. The Chancellor granted the petition taking into account: the cost/benefit analysis favoured the digital organ[1], the solution favoured by the DAC, a number of experts, and the solution of choice of the PCC; furthermore, the proposal is “entirely reversible”. Re St Alkmund Duffield [2013] was not applicable in this 1930s unlisted church.

[1] The refurbishment cost was estimated as ~£50,000 whereas cost of purchasing the digital organ was £26,305.

[Top of Page]

Other recent summaries

Recent summaries of specific issues that have been considered in the consistory courts are:


Cite this article as: David Pocklington, "Consistory courts catch-up, December ’14" in Law & Religion UK, 23 December 2014,