Consistory court judgments – December

A summary of consistory court judgments published late-November and during December

In our monthly round-ups of consistory court judgments, we have started adding links to assist readers in selecting those of particular interest. An index of the later judgments in 2015 has also been published, here.

At the end of each summary there is a link to the full text of these judgment on the Ecclesiastical Law Association web site. Those marked (*) were refused. In addition, to the judgments considered below, this month we posted Time-limited storage of cremation “ashes” on the legal issues surrounding temporary and permanent storage of “ashes” raised in Re Astwood Cemetery [2014] Worcester Const Ct, Charles Mynors Ch.


Re St. Agatha Woldingham [2015] Southwark Const Ct, Philip Petchey Ch.

The petitioner sought to exhume the remains of his wife from a grave in the “New Churchyard” of St Agatha’s and re-inter them in another part of the same churchyard. The present grave was intended as a double grave for his wife and himself, as is the proposed new grave, and is one of 19 set against the eastern boundary of the churchyard; the underlying clay limits drainage and water lies on the surface for many weeks, ”making regular visits to the grave upsetting as the water does not drain away and any planting is ruined”.

The petitioner contends that extensive drainage works would be required to alleviate this problem, and the effectiveness could not be guaranteed. The Chancellor stated that whilst effective drainage would present a better solution, the Team Vicar indicated that none of the relatives of those interred in the other plots had raised any concerns and the PCC has no plans to undertake any remedial work.

Aware of the issues of setting a precedent in these, “despite the fact that every case is unique and decided on its own facts”, [Re Blagdon Cemetery, [2002] Fam 299 (Court of Arches), at para. 36 (v)], he noted some similarity with the more extreme circumstances in Re St. Nicholas Codsall [2015] Lichfield Const Ct, Stephen Eyre Ch., reviewed here. [The problems associated with waterlogged graves are quite widespread in the UK and elsewhere, as a Google search will readily identify].

The Chancellor concluded [13] that in an extreme case, the deterioration of a churchyard or cemetery might form the basis for a successful petition for exhumation. The distinguishing factor in the present case was the timing of the petition: it had been made promptly once a proper assessment of the situation had been made; the circumstance of the proposed double grave were also pertinent. Faculty granted.

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Re St. Peter Croft-on-Tees [2015] West Yorkshire and the Dales Const Ct, Mark Hill Ch.

The petition to introduce a monument into the churchyard was in fact one that sought permission to add kerbs and chippings to a memorial on an existing grave. The P-i-C had refused to give her authority since this was contrary to the Churchyard Regulations for the diocese of Ripon and Leeds; these remain in force until new Regulations for the diocese of West Yorkshire and the Dales become effective on 1 January 2016. Nevertheless, the prohibition of kerb stones and chippings will be continued, “as is the case in most dioceses of the Church of England”.

The grounds for the petition were: (1) the petitioner wished to have the name of his late wife and in due time the names of his brother and himself recorded on the grave, there being insufficient space on the existing memorial; (2) chippings secured by kerbs would eliminate or minimise recent invasive damage from moles; (3) there was a precedent for kerbs and chippings on neighbouring graves.

The Chancellor was not persuaded that the reasons given by the petitioner, whether individually or cumulatively were sufficient to justify a departure from a central tenet of the Churchyard Regulations. He therefore refused to grant a faculty, but indicated that he would look favourably on an application for a faculty to replace the existing headstone with a larger stone which would have room for additional names.

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Re St. Aidan, Skelmanthorpe [2015] West Yorkshire & The Dales, Mark Hill Ch.

This short 4-page judgment for an essentially uncontroversial extension for a Grade II listed church building, provides valuable lessons for those within the diocese and the amenity societies, as well as for the participants. After detailing the “unfortunate and convoluted procedural history” of the petition, [1 to 11], the Chancellor commented:

“[t]his unsatisfactory state of affairs perhaps reinforces the importance for parishes in taking the driving seat when consultation is taking place. The inspecting architect (who ought to be experiences in these matters) can coordinate the process or the PCC could appoint a project manager to steer through both the planning and the faculty process. I am not sure whether it is a wise use of scarce DAC resources to handle the consultation process, especially now the diocese is so large …

Every parish should keep a detailed record of what is sent and when to every consultative body approached … the onus is on the petitioners to prove their case and this includes demonstrating not merely that there has been consultation but that the consultee body has indicated that it has no objection or comment to make, absent which a special notice will have to take place”, [12].

Applying In Re Duffield [2013] Fam 158, the Chancellor concluded that it was readily apparent that the public benefit of the proposed works – an extension at the west end of the south elevation of the church, to provide a lobby, toilets and kitchen, and the relocation of the font – would outweigh such harm as might result, and was satisfied that a faculty should pass the seal.

Because the Victorian Society had not engaged with the parish as fully as it ought and therefore forgone its opportunity to comment on the material proposed for the extension, the Chancellor did not require further consultation in this regard, [21]. However, on the discrete issue of the “merger” of the Norman font with the Victorian interior in its proposed location, he “merely [invited] the petitioners, and the inspecting architect, to have regard to “lack of alertness” evident in the design of the plinth, and would “look favourably on any revision … which addresses this concern and accordingly [invited] the petitioners to respond to this initiation before commencing work”.

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Re St Margaret, Horsforth [2015] West Yorkshire & The Dales, Mark Hill Ch.

The judgment commences: “the Schedule of Works or Proposals is somewhat confusing and does not fully and comprehensively set out what the parish is seeking, leaving much of what is proposed to be divined from an inspection of various plans”. The Chancellor therefore “put down a marker for the future”:

 “that both the Schedule on the Petition and the Public Notice must describe the proposals with sufficient particularity, failing which an amended Petition and a fresh display of Public Notice will be required, which is likely to delay the determination of the matters”.

Although directed at the diocese, the principle is of general relevance.

The petition proposed, inter alia, the creation of a dais, extending the chancel outwards beyond the choir and into the nave; removal of the back choir stalls; carpeting of the dais and choir; a portable altar and portable communion rails; alterations to the chancel arch to accommodate the reordering; removal of some pews from the south aisle; and creation of a children’s area at the back of the north aisle. The “succinct and persuasive” Statement of Need indicated:”

“[4]. … the liturgical use to which the church is put, with the principal act of worship at 10 am. Reference is made to concerts and to the use made of the church by the local primary school. The reconfiguration of the church to incorporate a nave altar is seen as central to the parish’s self-understanding as a gathering Eucharistic community. The community use of sacred space, as well as the use of the church building to promote mission, are clearly articulated. It appears from an extract from a PCC minute that the experimental use of the building has reinforced the underlying need for change. The experiments appear to have been well received.”

There were extended consultations with various bodies as the current plans have evolved, although:

“[13]. There is a clear dissonance between the views expressed by the [Victorian] Society and the vision of the parish. Each position is valid, but I confess I would have found the opinions of the Society more convincing had a representative accepted the invitation to visit the church, as Historic England had done, and engaged more constructively with the points raised by [the Team Rector] on behalf of the petitioners”, [emphasis added].

The Chancellor commented on the not “particularly helpful formulation” of the DAC advice recommending the works for approval ‘subject to agreement from consultations and recommendations of Historic England and the Victorian Society’; “expressing its recommendation as being conditional upon the views of others meant that, strictly speaking, the fact that such recommendations were not forthcoming effectively turns the DAC advice into a non-recommendation.”

Adopting the framework and guidelines commended by the Court of Arches in Re St Alkmund, Duffield [2013] Fam 158, the Chancellor concluded that although the proposed work would result in harm, this would be at the lower end of the spectrum of harm. Furthermore,

“ … amongst the 64 ‘new build’ churches designed by Pearson, 13 are listed grade I and 25 II*. Only St Margaret’s and one other are designated grade II. Even if the entirety of the interior furnishings had been designed as one holistic scheme, they cannot be described as amongst the better example of Peason’s oeuvre, and this factor must be borne in mind when considering the seriousness of prospective harm.”

Importantly, the Chancellor commented:

“[22]. The provisions of the Disability Discrimination Act 1995 (now repealed and re-enacted as part of the Equality Act 2010) make clear that the provider of services to the public should ‘provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large’. See the judgments of the Court of Appeal in Roads v Central Trains Ltd [2004] EWCA Civ 1541 and Ross v Ryanair Ltd. [2005] 1 WLR 2447 para 32, which were approved by the Court of Arches in an ecclesiastical setting in Re Holy Trinity Eccleshall [2011] Fam 1 at paras 68-69.

This proposal’s contribution to equalizing standards of access is undoubtedly a further factor in its favour which this court should take into account, and it may be that in its observations the Victorian Society might have underplayed the significance of this legislative provision”, [emphasis added]

The material, supplementary to the Statement of Need, provided to the court gave clear and convincing justification of the public benefit. Faculty was granted.

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Re St. Andrew, Witchford [2015] Ely Const Ct, Anthony Leonard Ch.

The case concerns a dispute between two branches of a family of travellers; through her son, Rod Buckley, the petitioner, Jennifer Buckley applied for a faculty giving her the right to be buried in the same double depth grave as her former partner, Nathan Buckley, with whom she had lived for 25 years until his death in 1986. The family of the deceased’s first partner, Violet Buckley, who died in 1957, objected to the petitioner having the right to be buried in the same grave as their father, there having been a division between the two families. A mediated resolution had been attempted, largely conducted by the Revd Canon Fiona Brampton, but this was not successful.

The Party Opponent, Olive Boswell, is in law the next of kin of Nathan Buckley, although Jennifer Buckley assumed the role of next of kin at the time of Nathan Buckley’s death. His headstone was erected by, and paid for by, Jennifer Buckley. Following lengthy discussions with the Registry, Canon Brampton made an entry in the Burials Book on 27 June 2013, that:

” … Mr Nathan Buckley’s grave will not be available for further burials and there will be no additional inscriptions on the headstone”.

Violet Buckley died in 1957, was buried in a double depth grave in St Andrew’s churchyard, and one of their children who died at the age of 20 was buried with her. A second son died at the same age of 20 and was buried next to her in the same grave as his uncle. Nathan Buckley died in 1986 and was buried in a double depth some rows away from Violet Buckley. The Chancellor clarified that:

“[6]. [w]ithout meaning any disrespect to any members of the family, for the sake of accuracy I shall refer throughout this judgment to both Violet Buckley and to Jennifer Buckley as the partners of Nathan Buckley even though both women would have considered themselves to have been, and were in all but law, married to him.”

He also observed:

“[10]. The two sides of the family are at odds, not only in respect to this issue, but more generally. They do not mix, despite living in close proximity with each other on land inherited from Nathan Buckley. It is much to the credit of both sides of the family that in the meetings they had with Canon Brampton and at the Consistory Court hearing they displayed respect and consideration for the deeply held views expressed by both sides.”

After reviewing the arguments of the two parties, [12 to 21], the Chancellor stated the position in law:

“[22]. The grave space does not belong to the family but is vested in the Incumbent of the Parish. The Priest-in-Charge has the final say as to who is buried in the churchyard where the deceased has a right to burial in that Churchyard, and a discretion as to where within the churchyard they are buried, subject to the Faculty jurisdiction.

[23]. Property in the headstone is vested in the person who erected and paid for it, that is Jennifer Buckley and on her death to the eldest surviving child as her heir-in-law.

[24]. Where there is no written instruction as to the wishes of the deceased before or at the time of burial, [as in this case], then it is his personal representative whose wishes should be put first in respect of the grave.

[25].The reservation of a grave space by way of a Petition for a Faculty is a discretionary relief.

In reaching his decision, the Chancellor stated that it was no part of his duty to reach any decision as to where the rights and wrongs lie in the division which has arisen between the two families, nor did he need to do so in order to reach his decision, [26]. Since it was unlikely that there ever would be consensus as to whether Jennifer Buckley should be buried in the same grave space as Nathan Buckley, having considered all the oral and written evidence, he concluded:

“[28]. Because reservation of a grave space is a discretionary relief I judge that I should not exercise my power to grant a Faculty to reserve Plot 09 for Jennifer Buckley. In my judgment the dispute between the parties weighs in favour of non-intervention.”

However,

“[29[. The Priest-in-Charge’s discretion as to burial within the Churchyard at St Andrew’s remains. Whilst she will wish to have regard to the fact that I have refused a Faculty for Jennifer Buckley to be buried with Nathan Buckley, there is no reason at all why she should not permit Jennifer Buckley to be buried in the same Churchyard as Nathan Buckley.”

The issue of an inscription on the headstone was for the P-i-C, not the court, and she had made her views known in the Burials Book, supra.

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Re St. Aidan Hellifield [2015] West Yorkshire & The Dales, Mark Hill Ch.

The rationale for this “relatively modest proposal” was “to create a more flexible space both for worship and for concerts and to create something of a proscenium dais into the nave to it the liturgical practice of the small but devout worshipping community”. The priest-in-charge and churchwardens sought a faculty for a reordering of the interior of the Grade II listed church, and were assisted “not merely by the DAC but by the inspecting architect whose professional skills have been instrumental in framing a proposal which seeks in a straightforward way to realise the ambitions of the parish. Aspects raising most concern were: the carpeting of the nave; removal of the riddel posts; and the installation of upholstered chairs. In his assessment against the criteria in Re St. Alkmund Duffield [2013] Fam 158, the Chancellor stated he was satisfied the to be satisfied that any harm to the significance of the church as a building of special architectural or historic interest was outweighed by the proven needs of the parish, [1], and commented:

“[12]. … I do not consider that the introduction of upholstered chairs would be harmful. They may be a false economy but that is a judgment for the PCC. In my view, their presence would not be deleterious to the aesthetics or architecture of this building. Similarly, a fitted carpet may not be to everyone’s taste, but any harm (in the Duffield sense) would be slight and fully justified by meeting the need of the parish as I have sought to summarise above.

[13]. In respect of both these matters, and the removal of the riddel posts as well, the determinative feature seems to be that all these proposals are wholly reversible.

Faculty granted.

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Re All Saints Rothbury [2015] Newcastle Const Ct, Euan Duff Ch. 

The rector and churchwardens of All Saints, Rothbury, sought a faculty to restore the Hill organ, an instrument of historical interest that it is listed on the national organ register, and reposition it at the front of the church. The petition was supported by the Diocesan Advisory Committee which, in its Notification of Advice recommended the works for approval by the court, without any proviso. However, the Public Notice resulted in an objection from Mr JG Sheales, one of the organists, whose preference was a Makin Digital organ of the type that had been loaned to the church for two weeks at Easter 2010. He and the other organists were said to have recommended an instrument of this type at a meeting in the rectory in July 2012.

A number of Mr Sheales’ objections appeared to be based upon incomplete information, and were refuted by the petitioners. They suggested that the congregation was split over the suitability of the Makin organ; the siting of its external speakers was controversial and interfered with the ringing of the 1893 church bells. They indicated that in 2012 it would be possible to raise the funds for the Makin organ, £25,000, but its expected life was only about 30 years. In contrast, a grant by the Heritage Lottery Fund of £27,300 had been augmented to £63,700 and the restored Hill organ “should be good for about 150 years”; additionally, the grant provides for education on the history of the organ and training youngsters to play.

The Chancellor stated that it was abundantly clear from all of the material provided that the proposed restoration and other options had been fully and carefully considered before the petition for the faculty has been filed; the advice of the DAC had been sought and it had given its unequivocal support to the proposal. He concluded:

“[11]. All Saints Church, Rothbury needs an organ. All are agreed upon that fact. The current petition is to implement the scheme that this been considered, along with others, and finally found favour with the congregation, as represented by the PCC. At the end of my consideration of the papers in this case I am perfectly satisfied that a faculty should issue and I direct accordingly.”

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Re All Saints Barrowby [2015] Lincoln Const Ct, Mark Bishop Ch.

The Petitioner, Mrs Giusepphina Glover, aged 92, applied for a faculty to exhume the cremated remains of her late husband, Mr Cyril Glover from the churchyard of All Saints, Barrowby with a view to their re-internment in her family’s mausoleum in Bisceglie, Puglia, Italy. Mr Glover died on 7 November 1990 and his cremated remains were interred in a single cremated remains plot on 14 February 1991 in an oak casket; the PCC had given its agreement as had the local environmental health authority.

Mrs Glover and her husband lived in Barrowby and at the time of his death, his younger brothers were alive and lived locally. Importantly, it was her intention in 1991 that when the time came she would have her ashes interred with her husband at Barrowby. However, all of her husband’s siblings have now died without issue and there are now no surviving close relatives in the UK of herself or her husband.

The Chancellor considered the factors in Re Blagdon Cemetery, [2002] Fam 299 (Court of Arches) which may support a submission that special circumstances have arisen which permit the remains to be exhumed. Of these: (ii) lapse of time; (iii) precedent (desirability of securing equality of treatment, so far as circumstances permit, between petitioners; and (v) family grave were held to be relevant, and the Chancellor was satisfied that this was one of those exceptional cases in which he could authorise the exhumation of the cremated remains so that they may be reinterred in the family grave in Italy, [12]. Furthermore, the exhumation would also make available another plot for someone else and therefore is an economical use of land, [13]. The Chancellor granted the petition subject to the conditions that:

(i) the undertaker can recover the oak casket and the ashes sufficiently for the exhumation;

(ii) any conditions required by the environmental health department are complied with; and

(iii) the MoJ licence is obtained.

He waived his fee and wished Mrs Glover well.

[Link to judgment] [Go to Top]


Re St. Mary Wath [2015] West Yorkshire & The Dales Const Ct, Mark Hill Ch.

Despite being only 2 pages in length, this unopposed judgment provides useful guidance for incumbents who wish to remove kerbing and other unsanctioned material on and around graves. The Chancellor commented:

“[3]. … it took several resubmissions before there was sufficient material before me to be satisfied that proper notice had been given (a) in the churchyard, (b) in the parish magazine, (c) on the diocesan website and (d)elsewhere. Proof of notice and consultation is just as important as the notice and consultation itself, however frustrating this may appear for the petitioners.”

However, once the legal preliminaries had been satisfied, he stated:

“[4]. Mindful that many of the grave stones are of an age that the next of kin cannot reasonable be traced I am of the opinion that the petitioners have done all that is reasonable to bring the proposed works to the attention of the world at large. I am also satisfied that no owner has expressed objection to the works being carried out in respect of any given set of kerbstones.”

[5]. The case for carrying out the proposed works is overwhelming. The introduction of kerbstones into churchyards in what is now the Diocese of West Yorkshire and the Dales is unlawful unless done under authority of a faculty and I can find no evidence of a faculty having been issued in this instance, whether generic or specific. The PCC is to be praised for taking responsibility for addressing this illegality and the laxity of previous incumbents who permitted the introduction of the kerbstones. I appreciate that the PCC is largely motivated by the need to make the maintenance of the churchyard easier, but whatever the reason the fact that something is to be done is to be welcomed. I trust other parishes in the diocese will follow their example”, [emphasis added].

A faculty was granted subject to a number of conditions relating to the steps to be taken prior to the removal of the kerbing, [6].

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Cite this article as: David Pocklington, "Consistory court judgments – December" in Law & Religion UK, 21 December 2015, https://lawandreligionuk.com/2015/12/21/consistory-court-judgments-december/

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