Consistory court catch-up, February 2015

In addition to the consistory cases summarized in this post come further examples of problems encountered with interments in churchyards. None of these was subject to judicial consideration by the ecclesiastical courts, but have been included in view of the commonality in some of the issues involved.

  • On 4 February, the Daily Telegraph reported that an interment at Nottingham Road cemetery in Chaddesden, near Derby, had to be postponed as the space prepared proved too small for the coffin, which was of normal dimensions; the widow and around 300 mourners had to return to their cars wait until the space was made larger, although the priest had to leave in order to conduct another funeral;
  • In Oxfordshire there was a recent unreported instance of a funeral, also attended by a significant number of mourners, where the priest and family had to return the following day for the interment; instead of preparing a grave so that the deceased could be buried with his wife, the adjacent plot containing deceased’s son was prepared.
  • And in our round-up on 15 February, we reported of the confusion resulting from a parish council’s response to a complaint by from a Muslim family concerning the recent burial of a Roman Catholic in a grave space adjacent to their relative. The Ministry of Justice’s explanation of basics of exhumation law resolved the situation.

This month the following consistory court judgements were published, including: the rectification of problems with an earlier interment; use of tern-coated steel for the porch roof on a Grade 1 church; and reordering, including the removal of an operational, but unused pipe organ.

Re St. Nicholas Codsall [2015] Lichfield Const Ct, Stephen Eyre Ch.

Judgement of the consistory court

The interment of two family members had taken place in the same grave in 2012 and 2013; the first coffin containing the remains of Brenda Owen was not buried at a depth sufficient to allow a double burial, and as a consequence, when the remains of Angela Owen, the second family member, were interred the coffin was covered by only about 12” of soil. The natural settlement of the soil following the burial has meant that the top of Angela Owen’s coffin had become exposed.

In view of the sandy nature of the soil in the churchyard, it was considered impractical to remove both coffins in order to deepen the grave, as in Re St John Washingborough [2014] Lincoln Cons Ct, Mark Bishop Ch. reviewed in December: a case in which the undertakers had “failed to ensure that the grave digger had dug the grave sufficiently deep.” Paragraph 35 of Re Blagdon Cemetery [2002] Fam 299 states:

“faculties can in these circumstances readily be granted because they amount to the correction of an error in administration rather than being an exception to the presumption of permanence which is predicated upon disposal of the remains in the intended not an unintended plot or grave”.

However, this refers to instances where an interment has taken place in the wrong grave;

“the removal of Angela Owen’s coffin from its present location is not a departure from the presumption of permanence rather it is the moving of the remains to a location where they can be interred in a secure and seemly fashion and in which effect can be given to the intention that such interment should be permanent.”

“The position is not as straightforward in the case of Brenda Owen. There was no mistake in the decision to inter her remains in this plot. The plot is an appropriate one and Mrs. Owen’s remains can be preserved in that plot in a secure and seemly manner.”

Nevertheless, the Chancellor was satisfied that special circumstances justifying exhumation are present in the case of Brenda Owen in view of the encouragement for family graves given in Re Blagdon Cemetery:

 “the plot containing these two coffins is already a family grave consisting of the remains of a mother and her daughter and it has been such a grave since March 2013 when Angela’s remains were interred.

[…]

In the circumstances here for the Court to allow the exhumation of Angela’s remains while refusing to permit the exhumation of those of Brenda would be for the Court to bring about the splitting up of an existing family grave. This is an unusual case and the circumstances justify the exhumation of Brenda Owen’s remains. In effect the existing family grave is being reconstituted in the same churchyard but in a location where the soil conditions allow the seemly and safe creation of a double-depth family grave.”

The Chancellor noted that he was not empowered to make an order to prevent the subsequent use of the burial plot: this would amount to a partial closure of the churchyard; and “the reuse of burial plots which have formerly been used and in respect of which there has been no exhumation is an accepted and appropriate course”. In view of the pastoral sensitivities, he indicated that a two-year period of restraint in using this plot might be appropriate.

Statutory requirements and industry guidance

The secular legislation pertaining to burials and the industry practice were not considered by the consistory court.  They are, nevertheless pertinent to considertions in this area. Part 1 of Schedule 2 to the Local Authorities’ Cemeteries Order 1977 states [emphasis added] [1] :

“2. No body shall be buried in a grave in such a manner that any part of the coffin is less than three feet below the level of any ground adjoining the grave: Provided that the burial authority may, where they consider the soil to be of suitable character, permit a coffin made of perishable materials to be placed not less than two feet below the level of any ground adjoining the grave.”

In 2004, the Institute of Cemetery & Crematorium Management, (ICCM), published a Policy relating to Shallow Depth Graves, with a view to: (i) preventing the occurrence of shallow graves; and (ii) dealing with the inherited problem.

The encouragement for “family graves” and the growing crisis in the availability of burial space on which successive administrations have failed to act since 2001, are likely to increase the occurrence of such issues.

[Link to judgment] [Top of Page]

Re St. George Worthing[2015] Chichester Const Ct, Ruth Arlow Dep. Ch.

The Church of St George, Worthing is a grade II listed building: the nave and chancel by George Truefitt in 1868; other parts completed by 1884; and reordering undertaken in 1990-1. The listing includes a narthex-porch[2] with N, S and central doorways, the latter under a hipped gable; it notes that the main feature of the church is a screen, which formerly marked the division between nave and chancel, but which is now located at the west end, i.e. the narthex-screen. The faculty petition by the Vicar and Churchwardens was to permit the creation of a new servery area and toilet facilities. The Church Buildings Council believed that the scheme, which was supported by the DAC, would have only a “modest impact”, from the public notices generated no objections.  However, concerns were raised by the CBC, and by English Heritage who said:

“… we consider [the timber screen] is an attractive feature providing both historical and visual interest in the open spacious interior, whilst still allowing views through to the body of the church.  We do not consider that the current submissions have sufficiently justified the need for its removal … .

“We consider that all options to retain the screen within the body of the church have not been explored”

In applying the guidelines within the Court of Arches judgment in Re St. Alkmund Duffield [2013] Fam 158, the Deputy Chancellor noted that the reservations expressed by the CBC in relation to the screen’s removal appeared to be based on a misapprehension that it formed part of the original 1868 scheme – a somewhat surprising oversight given the inclusion of these details in the listing, above.

The Deputy Chancellor found difficulty in determining whether the removal of the screen would harm (or enhance) the significance of the church, but on balance concluded that whilst it would result in harm, given the principal importance of the uninterrupted space of the interior, found that the harm would only be modest. With regard to the fourth part of the Duffield guidance, she held that on balance, the petitioners had discharged the burden of showing a clear and convincing justification for the proposed works: relocating the screen rather than removing it would unavoidably reduce the area size of the planned hospitality area. Faculty granted.

[Link to Judgment] [Top of Page]

Re St. Nicholas Addlethorpe [2015] Lincoln Const Ct, Mark Bishop Ch

In our November post Church roofs: replacement of lead following theft we reviewed the of consistory courts to the choice of materials. In St Michael and All Angels, Bexhill; All Saints Danehill; St Matthew, St Leonards-on-sea; St Mary, Balcombe; and St John the Evangelist, Upper St Leonard [2011] Chichester Cons Ct Mark Hill Ch, the Church Buildings Council, (CBC), had provided generic advice for cases of repeated theft of metal roof coverings which stated inter alia “terne-coated stainless steel and zinc are possible suitable alternatives to lead sheet roofing in vulnerable areas of roof not generally on view, [emphasis added].

The approach of the court in Re St. Nicholas Addlethorpe is interesting in that the court opted for the use of terne-coated steel because it would be seen.  However, as we have indicated earlier, consistory courts consider petitions on the merits of each specific case. Here the court supported the opinion of the DAC although the PCC wished to replace lead stolen from the church porch roof with plain tiles. The Grade I church, 15th century porch, was described by Mr Keith Halliday, Secretary to the Lincoln DAC, as a ‘wonderfully intact example of a small stone built porch’. Lead had been stolen from the porch on two occasions, the most recent about 6 years ago.

The DAC noted, [emphasis added],

“the building forms part of a number of Perpendicular style buildings that were intended to be roofed in lead. The pitch of the porch was calculated to enable visitors to see the expensive lead above the parapets on the flanks of the building. Beneath the external roof, the porch retains its fine carved wooden roof”.

Whilst the PCC wished to re-roof using plain tiles, the DAC preferred the tern-coated steel, (TCS), option, their respective arguments outlined in paragraphs 6 and 7. English Heritage was agreeable to either steel or tiles, and East Lindsey District Council, (ELDC), had given planning permission for the re-roofing in plain tiles. Whereas the PCC felt that since terne-coated stainless steel had a similar appearance to a lead roof, it would be a greater encouragement to future theft than would plain tiles.

In applying the tests in Re St. Alkmund Duffield [2013] Fam 158, the Chancellor held that if the proposal for plain tiles was granted, then this would result in harm to the significance of the church as a building of special architectural or historic interest: the level of harm done would far outweigh any benefit that could be obtained from the use of tiles over the use of TCS. With regard to future potential for theft, he noted that many churches have placed signs indicating that they have TCS and/or that there is security marking in place, and suggested that advice on this would be available from the Archdeacon and the DAC secretary.

The application for tiles to be used on re roofing the porch was therefore rejected and the use of TCS approved.

[Link to Judgment] [Top of Page]

Re Holy Trinity Cambridge[2015] Lincoln Const Ct, Anthony Leonard Ch.

A faculty was granted for the replacement of a pipe organ and its replacement with an electronic organ as part of substantial reordering project, yet to come before the court. The organ was described as an instrument “[not] of special merit compared with those that are found within Cambridge, although in many cities its ‘…musical resources would be considered outstanding’ ”. However, it was only used “at major festivals and weddings and [it] does not suit the Evangelical style of worship which has been a part of this Church for more than a century. Instruments other than the organ are used to accompany and enhance the worship they offer to God.”

Significant in the scheduling of the petition was an offer of £25,000 for the organ and case; this was from Oliver Schulte, an organ builder in Germany with the view to the organ being installed in the Church of St Crucis, a Grade II church in Hesse. The Chancellor believed there was a real risk that this arrangement may fall through as a result of delay, and “whilst there may be other churches willing to offer the organ a home, that is by no means guaranteed”.

An objection was raised by the Victorian Society, who suggested that if a faculty were to be granted, the organ case should be retained. However, the views of the DAC and British Institute of Organ Studies, (BIOS), extended beyond mere visual aesthetics, and believed that the organ and case should be removed together, an opinion supported by the PCC and the CBC, who emphasize the nonsense of separating the casing since the front pipes make up the bass voice of the organ.

In applying Re St Alkmund, Duffield [2013] Fam 158, the Chancellor held that the proposals, if implemented, would result in harm to the significance of the church as a building of special architectural or historic interest, although this should not be classed as causing serious harm to the church overall, even allowing for its development over 700 hundred years. There was a clear and convincing justification for carrying out the proposals: this is a growing church which is very short of space for the type of activities which it feels are needed to carry out its mission and which has been fully justified in the Statement of Needs.

He considered that the need for liturgical freedom, opportunities for mission, and putting the church to viable uses which are consistent with and enhance its role as a place of worship and mission outweighed the harm. However, the faculty for removal and disposal of the existing pipe organ was conditional inter alia on: its sale to Oliver Schulte for installation in the Church of St Crucis for £25,000 and completed within 6 months; its replacement with a “high quality replacement organ suitable to the building”, approval by the Diocesan Organ Advisor and by the Chancellor. He further directed that any further for the re-ordering of Holy Trinity must cover the full extent of the proposed works.

[Link to judgment] [Top of Page]

Re St. Anne Aigburth [2015] Liverpool Const Ct, Mark Hedley Ch.

The church of St Anne, Aigburth was built in 1836-7, with additions in 1854, 1894, and in 1914 when during the execution of the work, the pulpit was destroyed by fire, attributed to arson by suffragettes. The church is listed grade II* and is built in ashlar stone with a slate roof in Norman revival style. The petition for reordering the church included: the installation of an electronically operated retractable projector screen behind the chancel arch; a projector … discreetly mounted in front of the screen on one of the roof beams; four monitors … positioned so as to be clearly seen …; the removal of part of one pew … to accommodate the PA/AV mixing desk; to upgrade the current PA and loop systems.”

Neither English Heritage nor the Victorian Society sought to take issue with any part of the proposals save for the installation of the four monitors, and the Chancellor noted that the proposals were varied to take account of some of the EH suggestions. His assessment was further informed by a site visit to the church.

In applying Re St Alkmund, Duffield [2013] Fam 158 he observed that “the whole thrust of the applicants’ case is that these developments are required to facilitate styles of worship which will not only be helpful to the present congregation but attractive to those who may in due course become members.” These proposals would impact on the significance of the church as a building of special architectural interest, but the monitors will have only a limited visual impact, and the Chancellor was  satisfied that they may properly be described as reversible; the aspirations of the church were reasonable and legitimate, and the presence of monitors in the chancel makes good sense from a liturgical and evangelistic point of view.

Although he accepted that the monitors will have an impact which could be described as harm, the Chancellor was persuaded both by their very limited visibility and the reversibility of the project and the liturgical needs of the church that those needs significantly outweigh the modest harm which may be caused.

Faculty granted in respect of all the works contained in this petition.

[Link to judgment] [Top of Page]


[1] At present there is no minimum depth set in Scots law, although this is one of the issues being reviewed in the present consultation.

[2] The term narthex can be applied to an outside, covered porch-like structure or an inside area separated from the nave by a screen. In earlier times, penitents and Catechumens were confined to this area until their reconciliation with, or initiation into the Church

Cite this article as: David Pocklington, "Consistory court catch-up, February 2015" in Law & Religion UK, 28 February 2015, https://lawandreligionuk.com/2015/02/28/consistory-court-catch-up-february-2015/

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