Consistory court judgments and CFCE determinations – September

Chancellor warns new diocese on strict compliance with ecclesiastical law, priest; PCC censured for disregard of faculty provisions; unsatisfactory “Heath Robinson” measures introduced under archdeacon’s licence; and new lighting schemes for two cathedrals

Relatively few judgments and determinations have been announced this month. However, on 16 September the Rt Hon Caroline Spelman MP, the Second Church Estates Commissioner, answered a written question from Mark Hendrick MP about regulations relating to churchyards in Blackburn Diocese: “which Church of England dioceses have published regulations on monuments on burial plots and inscriptions on gravestones; which dioceses (a) allow and (b) do not allow nicknames on gravestones; which dioceses allow monuments; which dioceses (i ) allow and (ii) do not allow pictorial etchings on gravestones; and which dioceses (A) allow and (B) do not allow freestanding containers on burial plots, [9765]”.

Mrs Spelman informed Mr Hendrick that the information requested is not held centrally, and while there is central guidance available, each Diocese and Parish applies the regulations to their local circumstances. In relation to their local application, he was directed to the Diocesan Registrar for Blackburn and to the Diocesan guide to the churchyard regulations, [page 4].

Had such a request been made under the Freedom of Information Act, it is likely that it would have been refused on the grounds that dealing with it would have cost too much and/or taken too much staff time. However, the inquiry does raise the question of why it is necessary for each of the Church’s 40 UK dioceses to produce its own version of the central guidance “to suit local circumstances”, when such issues are more likely to be relevant at parish rather than diocesan level.

Consistory Court Judgments

Re St. Peter & St. Paul Bassingbourn [2015] Ely Const Ct, David Etherington Ch.

The Priest-in-Charge and Churchwardens sought a petition to install a projector at the West end of the Grade I listed church and a drop-down projector screen from behind the chancel arch in accordance with a specification supplied to the court. When retracted, the dual-winch retractable screen would be visible from the chancel but not from the nave. Funds for the £7,000 project were available and it was proposed that the work would be undertaken with one week. The DAC had signalled its recommendation of the works, and English Heritage expressed no objections.

Worryingly, in terms of health and safety, was the fact that the “Heath Robinson” arrangements for screen and projector, the latter “[sitting] on a dinner tray set on top of a temporary board placed on top of the pews”, [7]. One of the four objectors to the public notice observed that the existing electrical arrangements were obtrusive and badly placed, [14g], of which the Chancellor noted that “a hole cut in the Rood Screen with exposed cabling is but one example, [19(c)(iii)]. None of the objectors wished to be a party to the proceedings, although the Chancellor took note of the points they raised.

The petition was considered with regard to the questions raised in Re St. Alkmund Duffield [2013] Fam 158, and the Chancellor agreed with Historic England and the DAC that no harm would result from the proposals. There was a clear and convincing argument for carrying out the proposed work, and the Chancellor was satisfied that the church has within its tradition of worship a need for audio visual aids, [15(c) (ii)], adding

“Of course, no such need is ever absolute. There is no absolute need for an organ in any church, or, indeed, many other additions to churches that have appeared over the centuries. However, this Church has developed a thriving tradition in which the use of screens and some amplification is an integral part of the worship”.

The unsatisfactory nature of the current arrangement was in no doubt, but he rejected the view that a portable screen would suffice. The petitioners established the need for the proposal and a faculty was granted which took into consideration some of the points raised by the objectors in its Conditions and Suggestions, [19].

As elsewhere, the use of projection systems in churches raises important issues of copyright, and whilst not a component of the faculty jurisdiction, the submission of a petition would be a timely opportunity at which the DAC or court could remind incumbents and PCCs of their obligations in this respect. [Link to judgment] [Top of page]

Re St. Thomas Sutton-in-Craven [2015] Mark Hill Ch. (West Yorkshire & The Dales) The important issue raised by  this case is summarized in the final conclusion, [35],

“This judgment is disproportionately lengthy for what is a relatively straightforward petition. It has thrown up several procedural matters, the exploration of which may not have been dispositive, but they have been addressed and explained as way marks in the legal landscape in which the consistory court of the newly-formed diocese of West Yorkshire and the Dales must operate, in common with every other diocese in the Church of England.”

The purpose of the petition was to “[confirm] confirms a temporary reordering certificate [sic] granted for the change of several pews between the south side aisle and south wall on 15 July 2013, [2]” … “[i]. to install draught protection to the vestry door; [ii]. to remove certain pews; and [iii]. to introduce upholstered chairs to replace those pews, [1].

The Chancellor was clearly irked at both the time delay between the expiry of the archdeacon’ licence and the faculty petition, and the fact during this period, the position as it existed before the grant of the licence had not been restored. Whilst acknowledging that “experience suggests that non-compliance with this provision may have become widespread in a number of dioceses – it is (or at least was) a rule seemingly honoured only in the breach, [9], he stated:

“8. Whether motivated by ignorance, poor advice or a combination of both, I take a dim view of the disregard for ecclesiastical law and the flouting of the faculty jurisdiction. The law is plain and the text of the archdeacon’s licence is written in readily comprehensible English.


Beyond noting the parish’s apparent non-compliance, I propose to take no further action in this instance. I do not consider that the failure to have regard to the deadline for submitting a petition (or the requirement promptly to reverse the reordering in default of such submission) to have been deliberate and calculated. But I do hope that it will be understood within the diocese that in future strict compliance will be expected from parishes, and rigorous enforcement will be similarly be expected from archdeacons.”

He was similarly unimpressed with the DAC’s assessment of the impact of the proposed work:

“28. I note that in the DAC’s Notification of Advice, it declared itself to be of the opinion that ‘the work proposed is likely to affect the character of the church as a building of special architectural or historic interest’. I must confess, with respect to the considerable individual and collective expertise embodied in the DAC, I am not convinced that I would necessarily have come to the same conclusion. The removal of a number of plain pews from this unremarkable church will have little impact on the church as a building of special architectural or historic interest.”


30. I would not have concluded in this instance that the harm test was made out in the clear and limited manner in which the Court of Arches has chosen to articulate it in the Duffield test. However, I recognise that there is a large subjective element to the test and in deference, amongst other things, to the views of the DAC for which I have the greatest respect, I proceed on the basis that the harm test is answered affirmatively.”

With regard to the views of the amenity societies, [15-16], the Chancellor observed:

“29. I note, by way of illustrative example only, that in Re Holy Trinity, Eccleshall [2011] Fam 1, the Court of Arches did not consider the introduction of a very large platform into a grade 1 listed church to be likely to affect its character as a building of special architectural or historic interest. Here, of course, the listing category is the significantly lesser status of grade 2. It is instructive, although not of course determinative, that neither Historic England nor the Victorian Society (who were both consulted in consequence of the opinion expressed by the DAC) chose to voice any objection. Amenity societies have heavy case loads and consultation should be reserved for those cases where it is genuinely necessary.”

On the question of whether the public benefit would outweigh any harm, the Chancellor concluded:

“33. I am in no doubt it would. The building is in the lower category of grade 2, as opposed to grade 1 or grade 2*, and in my assessment the harm (if any) would be very little. The gain, and potential gain, in terms of the mission of the church in the community (including, but not limited to, the worshipping congregations) is considerable.


34. For these reasons, a faculty will issue for all that is proposed, including the draught protection to the vestry door which is uncontroversial.”

[Link to judgment] [Top of page]

Re St. Bartholomew Kirby Muxloe [2015] Leicester Const Ct, David Rees Dep. Ch

The petitioners wished to remove a stone font introduced in the early part of the 20th century to the Grade II* listed church dating from around 1300, and replace the with a new font of modern design. The new font was to be moveable, so as to permit the freeing up of space at the west end of the church, when required for activities other than baptism. There were reservations concerning the design from the CBC, Victorian Society and Chancellor Blackett-Ord. The Chancellor provided the petitioners with his written observations outlining these concerns, in which he stated, inter alia: “if this particular design would have been approved by the PCC if it had come from someone with no connection to the parish … I have to say that I am not being facetious when I suggest that it looks more like a toilet than a font.” Readers may wish to form their own opinion on the aesthetics of the design.

Furthermore, the new font had been made and used before the petition was heard by the court. Nevertheless, a faculty was granted by the Deputy Chancellor, who concluded by stating:

“Given the generally impressive re-ordering that has taken place in Kirby Muxloe, it seems to me to be regrettable in the extreme that I have found myself concluding this judgment by censuring those in authority at St Bartholomew’s. However it must be understood, both by those in Kirby Muxloe and more generally, that the faculty jurisdiction exists for a reason and is not to be flouted or circumvented.”

The interim removal of the stone font to the churchyard was unsatisfactory, and the Deputy Chancellor disagreed with the permanent solution suggested by the Archdeacon,

“It seems to me wholly unfitting for a font that has been used for the sacrament of baptisms in the parish to be turned into a decorative feature in the churchyard. The notion that the stone font should be turned into a form of planter seems to me to be entirely unsuitable. Equally, simply leaving it outside in the churchyard means that it will become a receptacle for dead leaves, litter and rainwater (it has no functioning drain) and be vulnerable to frost damage, weathering and theft.”

The CBC had indicated that if the faculty were granted, the stone font would need to be broken up and buried in the churchyard, according with a traditional view for the disposal of a vas sacrum. However, the Deputy Chancellor indicated that it is not an absolute rule that a redundant font should be so treated, Re St Peter’s Draycott [2009] Fam 93. He directed that the redundant stone font together with its wooden cover should be movedforthwith to the diocesan store, and gave the parish twelve months to explore alternative ways of disposing of the stone font. By 1st October 2016 the Petitioners were required to provide a report to the Registrar setting out the steps that have been taken to find an alternative home or use for the stone font, and any further proposals that they wish to put forward for its disposal. He stressed “[f]or the avoidance of doubt a further faculty will be required before the stone font can be moved from the diocesan store, sold or otherwise disposed of.” [Link to judgment] [Top of page]

CFCE Determinations

The most recent CFCE determinations are summarized in an earlier post. The next Commission meeting will be on 30 September 2015, at which the following applications will be considered; the determinations will be posted in the round-up following their publication.

Gloucester Cathedral, solar panels: To install around 180 solar photo-voltaic panels in a continuous array across the south slope of the nave roof of Gloucester Cathedral. This will generate around 27,000kW p/a, in order to reduce reliance on fossil-fuel created electricity by 20% in line with the Church of England’s Shrinking the Footprint policy;

Newcastle Cathedral, removal of redundant clock casework: The structure was thought to date from the 1820’s when an early clock was replaced. The shaft is of interest but has been carefully recorded by the archaeologist. It is however “a very standard timber construction and has no intrinsic value”.

Winchester Cathedral, lighting: Winchester Cathedral’s existing lighting arrangements are outdated, ineffective and potentially dangerous. Many fittings are now obsolete and beyond repair, some wiring is so ancient as to be hazardous and the number of lights now out of commission risks making some areas inaccessible. A partial upgrade took place over 40 years ago but some of the wiring and mains cabling is over 80 years old.

Chapter therefore decided to apply to CFCE for approval to upgrade and modernise the lighting system to modern light distribution and management standards. The proposed scheme in this submission reflects the belief of Chapter and the Fabric Advisory Committee that doing nothing to the current lighting should no longer be an acceptable option. The scheme aims to develop a coherent, integrated and versatile scheme for Winchester Cathedral while incorporating the requirements of the widely differing areas within the Cathedral. The scheme also aims to be fully fit for the years ahead.

York Minster, nave lighting: Replacement of outdated light fittings, and replacement with LED fittings in similar locations; updated lighting at triforium level.

David Pocklington

Cite this article as: David Pocklington, "Consistory court judgments and CFCE determinations – September" in Law & Religion UK, 24 September 2015,

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