Consistory court judgments – November

A summary of consistory court judgments published during November

Cases reviewed

Links  to the full texts of these judgments are given at the end of the following summaries, and are also available on the Ecclesiastical Law Association web site, here. Petitions marked (*) were refused.


Overview

During November, we reported two high-profile cases involving speculative investigations of burial sites by third-party, non-church related organizations, here and here: the case of Re St Leonard Beoley [2015] Worcester Const Ct, Charles Mynors Ch concerned the examination of a skull, alleged to be that of William Shakespeare, which was located within the church vault; and Re St. James Gorton [2015] Manchester Const. Ct, Geoffrey Tattershall Ch. involved a proposed search for a hessian sack in shallow ground above a burial, which some reports had linked to the Moors murders.

Neither involved the exhumation of human remains, per se; both were refused on grounds of insufficiently robust evidence, and costs were awarded against the petitioners. In Re St Leonard Beoley it is likely that these will be borne by the organizations seeking the exhumation, under the terms of a draft agreement with the petitioners, no such agreement appears to have been in place in Re St. James Gorton. This highlights the significance of the charitable status of PCCs and whether the submission of such petition (and the expected successful outcome) are entirely consistent with its charitable objects.

Other recent cases to be reported separately are: Re Astwood Cemetery [2014] Worcester Const Ct, Charles Mynors Ch. which addresses the issue of the treatment of cremation ashes that are held for limited periods of time, either conventionally interred or stored above ground; and two judgments in which the application of the criteria in Re St Alkmund, Duffield [2013] Fam 158 where there is only “modest harm”, Re Wandsworth St Anne [2015] Southwark Const Ct, Philip Petchey Ch. [listed buildings] and Re St. Peter Shipton Bellinger [2015] Court of Arches (Winchester) [appeal re: disposal of Victorian font].

For completeness, we have listed also an Environmental permit application for the church of St Nicholas Great Kimble.

The Cathedral Fabrics Commission for England, (CFCE), met on 19 November to consider the submissions summarized earlier; its determinations will be covered in a separate post, when these become available.  [Top of page]


Judgments 

Re St. Peter & St Paul Coleshill [2015] Birmingham Const Ct, Mark Powell Ch.

The church of St Peter and Paul is “a magnificent 14th century building with significant alterations during the Victorian times. It commands an exalted position in Coleshill. It is a grade I listed building with grade II listed items in the churchyard. The interior of the church has a number of significant features, perhaps preeminent of all being the Norman font. There are significant monuments to the Digby family and the tower has a ring of ten bells” [6].

The Vicar and Church Wardens of St Peter and St Paul Coleshill sought a faculty authorising a major re-ordering of the Parish Church: a). To level the floor throughout the Nave, removing pew platforms and all carpets; b). To alter the flooring around the altar and font using existing stone and new stone elsewhere; c). To introduce an underfloor heating system throughout the Nave and in the upper room; d). To introduce fan convector radiators in the Nave and Chancel; e). To remove pews from the side aisles and introduce chairs; f). To introduce a “pod” kitchen at the rear of the south aisle; g). To introduce screening in the north aisle to create a space that is reasonably soundproof and can be separately zoned in terms of heating; h). To install a disabled toilet in the north porch; i). To convert the tower so that it becomes the principal entrance housing a new toilet and flower cupboard with sink; j). To remove the ceiling from the upper room which cuts across the west window; k). To relocate wall monuments from the Upper Room into the Nave and to clean other monuments and effigies; l). To redecorate the church and clean the windows; m). To introduce a new lighting scheme; n). To create three disabled parking bays within the churchyard outside the west entrance; o). To install a cycle rack; and p). To landscape the area outside the north porch.

Understandably, this Petition was subject to a number of changes as a consequence of the Parish’s discussions with the DAC and various heritage bodies; the court noted that the DAC was in a position to recommend the proposals for approval subject to provisos relating to: its approval of the wiring routing for the new lighting system are submitted to the DAC; and the Parish’s submitted scheme of archaeological work prior to the commencement of the re-ordering work [1]. However, the SPAB raised concerns about the proposed cleaning of the monuments and the installation of the underfloor heating system, given the potential for archaeological damage [2]. In addition, an objector – MD Walpole – raised concerns on the relevance of the memorials in a church, and on the cost of their cleaning. On the former point, the Chancellor disagreed, noting: “[t]hey are, as the heritage bodies point out, a “memento mori” and … the returning of them to the body of the church is merely a return to the situation as it was pre 1859 when there was a major re-ordering of the building” [3].

Applying the criteria in Re St Alkmund, Duffield [2013] Fam 158, the Chancellor observed that it was clear that this is a major re-ordering and as such would represent a significant change to the aspect of the church. However “it does seem that much of what is proposed will enable the church to be returned to the way that it looked prior to the Victorian re-ordering; and there is a considerable element of “reversibility”. From the Statement of Need prepared by the Parish and it appeared that “much of what is proposed will bring the building into a situation which is fit for present day purposes and in particular will enable the Church’s mission in Coleshill to be carried out more efficiently and to greater purpose … Most significantly, the proposals will enable the building to be used more flexibly and more creatively. The replacement of the pews (often subject to complaints about their lack of comfort) by chairs will again improve the ability of the church to reach out into the community and return to the position of pre-eminence in the community which it enjoyed for the first five hundred years or so of its existence” [5].

Granting the faculty, the Chancellor stated “the proposals which have been long thought out and which have enjoyed significant consultation with the various bodies are a happy compromise between the need to preserve the magnificent historical aspects of the church and the need to promote modern day worship … they represent a significant movement in adapting the church to present day requirements without destroying the major historical identity that the church possesses” [7]. However, the evidence was insufficiently persuasive to justify the cleaning of the monuments, and if this is desired, a further faculty will be required.

[Link to judgment, Re St. Peter & St Paul Coleshill ] [Top of page]


Re The Church of the Ascension Hall Green [2015] Birmingham Const Ct, Mark Powell Ch.

The Queen Anne, grade II* Church of the Ascension, Hall Green was completed in 1704 and extended in 1860. It is described by Historic England as having special interest due to its date, with later additions in the same style presenting a unified appearance. The current Chancel and Nave, although extended, appear as a single coherent context with a very strong architectural form, reinforced by the ceiling moulding and cornices [2].

A petition by the Church Wardens sought a faculty authorizing the installation of an Audio Visual System within the church, comprising: a drop down screen in the Chancel; two television screens in the north and south transepts; and a projector to be located above the west gallery [1]. In its consultation document, Historic England state “although [this] will detract from the aesthetics of the space, it is accepted that, in principle, a descending AV screen box could be suspended beneath the Chancel ceiling as no viable alternative is available and the roof structure is a modern replacement”,[3].

Applying the criteria in Re St Alkmund, Duffield [2013] Fam 158, the Chancellor was satisfied that the harm to the church by the installation of the system can be mitigated by conditions and that the need for the installation in order to improve the mission of the church outweighs the harm that the installation with cause [5]. In his judgment the petition made out a compelling case for the installation of the AV system, follow extensive consultation with the DAC; a faculty was granted subject to the mitigating conditions suggested by the DAC:

  • the descending AV screen box to be mounted beneath the Chancel ceiling in line with the ceiling moulding at the west end of the Chancel;
  • the repeater screens in the transepts to be fixed into plaster rather than onto the gallery woodwork; and
  • all components should be colour matched to the existing ceiling to remain as unobtrusive as possible.

[Link to judgment, Re The Church of the Ascension Hall Green] [Top of page]


Re St. Matthew Stretton [2015] Chester Const. Ct, David Turner Ch. and Re St. Matthew Stretton [2015] Chancery Court of York

The petitioner, Mrs Christine Marshall (58), sought to reserve a space, for 30 years, in burial plot 783 in the churchyard of Stretton, St Matthew in which, in due course, her cremated remains may be placed. Plot 783 was of single depth and contained the body of David Bettles, who had died on 10 July 2013 aged 66. He had been the husband of Lorna Bettles, the first party opponent, the principal beneficiary and executrix under the deceased’s will, which had been made in 1993. The second and third parties opponents were their adult daughters. Lorna Bettles also organised the funeral and paid for the headstone which has been erected. After the breakdown of the marriage appears by about 2007, “the petitioner and the deceased became intimate in late 2010, having known one another for 40 years, and shared a home from August 2011 until the deceased’s death.”

The petitioner’s request was based upon a disputed conversation which she claims took place in this churchyard in March 2013; David Bettles is said to have expressed to her a clear wish to be buried there and to have the petitioner’s remains placed with his when she died. The petition had the support of the deceased’s two sisters, and had the consent of the incumbent, churchwardens and PCC, “who appeared to be of the view, contrary to a suggestion later made by Mrs Bettles, that no one else entertained expectations in respect of this plot”.

After reviewing the judgment from which leave to appeal is sought, [10-11], the Auditor, Charles George QC, made two observations:

“12. Unmentioned by the chancellor was an unusual aspect of this petition. To seek reservation of an unoccupied grave space is relatively common. Much less common is what happened here, namely to seek to reserve a right to inter ashes (or even a second body) in an already occupied grave. Some chancellors might have considered that the grant of faculties in such circumstances was generally undesirable, the question of whether (and if so whose) ashes should be interred in an already occupied grave being a matter better decided when that person has died. That is particularly so when the petition is opposed (as was here the case).

13. In all faculty proceedings, the ordinary presumption “in favour of things as they stand” is applicable, though it can of course be rebutted depending on the particular nature of the proposals (see In re St Alkmund, Duffield [2013] Fam 158 para 87, and authorities there cited). In the present case the chancellor did not refer to this presumption, which could have supported his conclusion that the more appropriate outcome was to refuse the petition.”

After reviewing test for leave to appeal [18 to 20], the Auditor considered the eight grounds raised by the Petitioner [21 (a) to (h)], and could see nothing which even arguably shows that the chancellor’s judgment was “wrong” in the way that has been defined above. Nor was there a suggestion of any serious or other procedural irregularity. Accordingly, the application for leave to appeal failed [22]. In his final observations, (ix), the Auditor addressed the Petitioner’s statement:

18(c) The petitioner’s rule 5(2) materials ended as follows:

“Perhaps a second ruling on from this Appeal should be that anyone at all should be precluded from being interred with David Bettles in that plot along with a preclusion of any changes to the inscription to the head stone already in place. In that way David Bettles could rest in peace to some extent”.

He noted

“It may be some reassurance to the petitioner that no one else (including the first party opponent) can lawfully be interred in burial plot 783 without either a faculty or a consent under powers delegated by the chancellor. And likewise any change to the inscription on the head stone would require authorisation.”

[Link to judgment, Re St. Matthew Stretton [2015] Chester Const. Ct]

[Link to judgment, Re St. Matthew Stretton [2015] Chancery Court of York]

[Top of page]


Re St. John Knypersley [2015] Lichfield Const. Ct, Stephen Eyre Ch.

Important factors relating to this petition are that: it is “part of a complete early Victorian group including also the school and parsonage” [16]; the restrictions imposed by its internal dimensions – the nave is 4.5m wide with rows of pews each seating five people on either side of a 1m wide aisle; and a relatively small church centre, opened only in 2009 but not currently suitable for “substantial community use”. In December 2013 approval was given for the first phase of a phased programme of works: the works approved then involved the relocation of the front row of choir stalls; the alteration of the entrance to the church; and the removal of a single pew.

The present petition had the unanimous support of the PCC, the Vicar and churchwardens and included: removal of the existing pews; to level the floor; to install a carpet; and to install new heating. The Diocesan Advisory Committee has recommended approval but certified that the proposed works are likely to affect the character of the church as a building of special architectural or historic interest; Historic England supported the DAC’s position. Although there was no response to the public notice, the Victorian Society objected to the proposals, primarily in relation to the removal of the pews, but also in relation to the carpeting, to which the Chancellor applies similar reasoning.

In its response to the 2013 petition, the Victorian Society said that although supportive of the other elements of the works, it was opposed to a wider re-ordering and did not support the removal of the front row of the choir stalls: it considered that the church was “a small aesthetically coherent and well-preserved space”; the current proposal for general pew removal would “largely strip the nave of the coherent historic character which it currently has”.

Since St. John’s is a Grade II listed, the Chancellor followed the approach laid down in Re St Alkmund, Duffield [2013] Fam 158 as modified in In Re St John the Baptist, Penhurst [2015] Court of Arches, the starting point of which described by the Chancellor as:

“[15] … to consider the contribution which the pews make to the special character of this church. I note that I approved the 2013 proposals on the footing that the works proposed then would not affect the special character of St. John’s. I note that at that time I said that even after those works were performed “the appearance and character of the church will remain that of a Victorian estate church with the bulk of the original internal furnishings remaining in place.” It will be readily apparent that what is proposed now entails the removal of a very considerable element of the original furnishings” [emphasis in original].

He further noted

“[17] I must bear in mind that the interior of the church currently contains the original seating. This historical continuity cannot be overlooked as being an element in the special significance of the church but … it is my assessment that the special significance derives principally not from the internal furnishings of the church but from its exterior and its position as part of a group of buildings” [emphasis added];

“[18] … the degree of harm which there will be to the church’s special significance needs to be determined by reference to the contribution which the existing pews make to that special significance …”;

“[19] The removal of the original pews will undoubtedly have an impact on the special significance of the church and that impact will not be trivial. However, given the limited contribution which the pews make to that special significance the harm which will be caused to the special significance will be real but far from grave.”

The justification put forward for the proposals was a strong one: the Petitioners demonstrated “a clear need for a worship space which can be used flexibly so as to enable different forms of worship and to facilitate work with children and young people (the latter being a very important consideration)” [20]. However, the Victorian Society’s suggested course of an expansion of the church centre would not meet these needs; such an expansion would only create a modest amount of additional space [21]. The church bears only a Grade II listing, marking the importance of this church and is by no means to be disregarded but the Chancellor could not ignore the fact of the lower level of listing.

Faculty granted.

[Link to judgment, Re St. John Knypersley] [Top of page]


Re St. Andrew Shifnal [2015] Lichfield Const. Ct, Stephen Eyre Ch.

The Vicar and churchwardens petition with the unanimous support of the Parochial Church Council sought a faculty for the installation of a new audio-visual system in the church. Although significant elements of the medieval church building remain, the church’s current appearance derives from the restoration by George Gilbert Scott in 1876 – 79. Nevertheless, its Grade I listing indicates that the building of considerable significance and of outstanding beauty. The Petitioners explained [4] that “the mission to that younger and growing population has involved a number of different activities”. It has also involved what is described as “a contemporary approach to worship which has been visual.” They believe that there is a need for “a worship experience where [those leading the worship] can project images, words, and video”, and in order for that to be achieved, there needs to be an audio-visual system capable of projecting such material to points where it is visible by all in the church. The existing AV system dates from dates from the 1970’s with some updating having taken place in the 1980’s and 1990’s; the current arrangement is for screens to be moved into position when needed and then moved away, a cumbersome process.

There was no response to the public notice but the consultation with Historic England and the Victorian Society produced detailed responses detailed responses; although accepting the need for an improved AV system, both bodies are opposed to specific aspects of the proposal [8 and 9, respectively]. The DAC certified that the proposed works would affect the character of the church as a building of special architectural or historic interest, but nonetheless recommended the works; it noted that the church was a “very difficult building in which to introduce audio-visual technology.”

The Archdeacon of Salop, Ven Paul Thomas acknowledged that the church is “outstandingly beautiful” but also reported the progress that had been made in enabling people of all ages to become involved in the life of the church; he agreed that a modern audio-visual system is necessary if that progress is to continue. In his assessment, the Petitioners had taken care to balance protection of the beauty of the church building with the need for modern technology and for those worshipping in the church to be able to see projected material and the actions of those leading worship.

As a Grade I church, the Chancellor considered the proposed works using the approach laid down in Duffield: St Alkmund [2013] 2 WLR 854 as modified in In Re St John the Baptist, Penhurst [2015] Court of Arches. He noted [21(d)]:

“… The Court is entitled and obliged to regard more favourably an application from a Council which has shown a proper understanding of and commitment to its heritage responsibilities than one from a Council which demonstrates a lack of appreciation of those responsibilities. A related point is that where, as here, a Parochial Church Council has made real efforts to address the concerns of those concerned for the impact on the building then the Court is to attach weight to such a Council’s assertion that no further compromise can be made if the desired mission objective is to be achieved”,

and concluded [22]

“…that the substantial benefits to be achieved by the proposed works outweigh the real but modest harm to the special character of this church. Accordingly, I direct that a faculty issue authorising the proposed works. I have incorporated in the draft faculty conditions to minimise the impact of the works on the special character of this church. Those conditions relate to the setting of the fixed screens; to the covering of the screens in the chancel; and to the making of a photographic record of the current appearance of the church with provision for copies of the same to be provided free of charge to all those with a genuine interest in the same.”

[Link to judgment, Re St. Andrew Shifnal] [Top of page]


Environmental permit application

In addition to the above, the Environment Agency has published an environmental permit application for Church of St Nicholas Great Kimble Parochial Church Council: environmental permit application. This is a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2010 for the discharge 0.15 cubic metres per day of domestic sewage to groundwater at National Grid reference SP 82522 05960 via a Trench Arch system. The use of such systems by churches, and others, was summarized in our earlier post re: St John the Baptist Church, Harringworth, Northants.  [Top of page].

Cite this article as: David Pocklington, "Consistory court judgments – November" in Law & Religion UK, 26 November 2015, https://lawandreligionuk.com/2015/11/26/consistory-court-judgments-november/