Recent consistory court judgments – January 2016

The consistory court judgments published in January are summarized below with links to the full judgments. Two of these were considered in greater detail in view of specific issues of more general interest: Re St. Mary Charminster in relation to remediation after flood damage and Re St. Aidan Thockrington which dealt with the illegal burial of some cremated remains of the author Tom Sharpe in addition to other items.

Re St. John the Baptist Cononley with Bradley is of note in that substantial funding for the proposed work was from a Methodist group which also uses the premises; Re Tunbridge Wells Cemetery was another family wrangle about the final resting place of the deceased in which the ownership of the grave in question trumps the wishes of the departed. It also demonstrated the discretion afforded the chancellor in the application of the guidelines in Re Blagdon Cemetery, which were given an extended interpretation in Re Holy Cross Cemetery, Wallsend.

The CFCE met on 19 November 2015 to consider the applications we summarized here. The CFCE met on 19 November 2015 to consider the applications we summarized here. The last Commission meeting was on 21 January 2016 links to its determinations and the applications to be considered at its meeting on 17 March 2016 are now available on it web page and in our post <here>.   The full calendar and deadlines for 2016 are available here.

In addition, the application from St Nicholas Great Kimble Parochial to the Environment Agency serves as a reminder to PCCs of the legal processes involved in installing trench arch systems for waste water discharges to groundwater.


Consistory court judgments

Reordering, extensions & other building works

Re St. John the Baptist Cononley with Bradley [2016] ECC Lee 1 A faculty was sought by the vicar and churchwarden for the major re-ordering of an unlisted Victorian church, “‘an unaisled rectangle in C13 Gothic, with much use of plate traceried rose windows”, (Pevsner), including relocation of the font, replacement of pews with chairs, re-flooring, new kitchen and toilets and relocation of a screen. The church is operated as a Local Ecumenical Project in association with the Methodist Church; the Methodist Church in the village had recently closed and the court was informed that the Airedale Methodist Circuit would be making a substantial contribution to the costs of the reordering.

Originally a more substantial reordering was contemplated, which Historic England considered “would strip the church interior of much of its historical and aesthetic interest”, a view shared by the Victorian Society. Following an exchange of correspondence with the vicar modifications were made to the initial proposals. The CBC was content to defer to the DAC, which issued a Notification of Advice recommending the works on 8 October 2015; similarly, Historic England indicated that it was happy to defer to the Victorian Society which, by email dated 7 October 2015, confirmed that it had no comment to make on the revised proposals.

As an unlisted building, the guidelines in Re St Alkmund, Duffield [2013] Fam 158 were inapplicable, although there was nevertheless a presumption in favour of the status quo, with the burden of proof on the petitioners to satisfy the court that a faculty should issue. The Chancellor judged that the petitioners had convincingly discharged the burden that lies on them. Faculty granted. [Link to Judgment] [Top of Page]

Re St. Mary Charminster [2016] ECC Sal 1 The church is situated in an area which is prone to floods, and the proposal for repairs was made on the expectation of future water damage. It was proposed to replace the wood block flooring with stone laid over insulation and with underfloor heating, but substantially different solutions were put forward by the architect for the PCC and those on the Diocesan Advisory Committee. After considering the technical advice of the architects and that from a Chartered Civil Engineer, the Chancellor granted a faculty for the works as proposed by the church architect. [Link to Judgment] [Link to Article] [Top of Page]

Exhumation

 Re St Gabriel Walsall  [2016] ECC Lic 1 The deceased had stated his “clear and express wish” to be buried in St Gabriel’s churchyard. The court held that the subsequent difficulty of his spouse was experiencing in visiting her husband’s grave was not an exceptional circumstance for exhumation under principles in Re Blagdon Cemetery [2002] Fam 299. The Chancellor commented that the proposed re-interment in churchyard of a church in communion with the See of Rome rather than with that of Canterbury not a material consideration in the judgment. [Link to Judgment] [Top of Page]

Re Tunbridge Wells Cemetery [2016] ECC Roc 1 The cremated remains of the petitioner’s parents were both buried in separate plots in the consecrated section of Tunbridge Wells municipal cemetery, her mother having died in 2006 and her father in 2015. Her mother’s remains had been buried in the grave of her grandmother and her sister. For reasons undisclosed to the court, the owner of the grave in which the petitioner’s mother’s remains were interred (the daughter of the sister) refused to allow the remains of the petitioner’s father to be buried in the same plot as his wife, even though the he had expressed in his will: ““I declare that I wish my body to be cremated and my ashes placed within those of my wife … at Tunbridge Wells Cemetery.”

The petitioner therefore sought to exhume the remains of her mother and have them reinterred in the grave of her father. The Chancellor stated that he was not in a position to decide the rights and wrongs of what has occurred, but as a matter of law the owner of the plot was entitled to refuse to allow the remains of the deceased to be interred along with those of his wife, although he could not determine “whether morally she was entitled to act as she did”. The position was reluctantly accepted by the remainder of the family and the remains were interred in a separate plot [7].

In considering the guidelines in Re Blagdon Cemetery [2002] Fam 299, the Chancellor stated [15]:

 “It is …  important to bear in mind, that the factors identified by the Court of Arches are not determinative, nor are they of necessity exclusive. They are guidelines rather than tramlines as to how the Court should exercise its discretion.”

Whilst the circumstances did not equate to an administrative mistake as envisaged in Re Blagdon, he was satisfied that there had been another type of mistake. There was an expectation that the remains of the deceased and his wife should be interred in the same plot, and that that plot would be the family grave. Right up to his death the deceased  was consistent in that hope, expectation and intention, and that he clearly expressed his wishes, both in writing in his will, and orally to members of his family. Faced with the refusal to allow the remains to be interred in the family plot, his daughter took the only practical course open to her, namely she caused her father’s ashes to be interred in a plot as close as possible to that in which his wife’s ashes were interred. Exercising this discretion, the Chancellor determined that there were sufficient exceptional circumstances to justify the grant of a faculty to authorise the exhumation and re-interment. [Link to Judgment] [Top of Page]

Re St. Aidan Thockrington [2016] ECC New 1 Whilst Tome Sharpe’s last wish was to be buried in the churchyard of St. Aidan Thockrington, the Chancellor granted a restoration order for the removal of a portion of the cremated remains of the novelist and other items that had been illegally buried there. These are now in the safe-keeping of the vicar, pending payment of costs by the Respondent. Should this not be forthcoming in the stated period, further Directions will be issued. [Link to judgment] [Link to article] [Top of Page]

Re Woolwich Cemetery [2016] ECC Swk 2 Cremated remains of two people had been buried in a grave already reserved for someone else, i.e. “a classic ‘mistake’ case” [4], for which the Chancellor granted a Faculty for exhumation and re-interment in another part of the cemetery. Under normal circumstances, the he would have directed that the exhumation should take place as soon as possible, but the petitioner “considers that it may be unpropitious to exhume the remains of his grandparents until a year has passed.” The Chancellor noted “this is of course no part of Christian belief but it is a matter which is obviously entitled to respect; as a matter of law, his belief and its manifestation is protected under the terms of the Human Rights Act” [5].

He observed that if the legal owner of the grave were to die in the course of the next year, his representatives might not be able to exercise the right of burial which purchased in 1984, and expressed the hope that an earlier date might be agreed, in order to alleviate any concerns. The Chancellor concluded by stating [9]:

“ … irrespective of issues arising from a petitioner’s particular beliefs, it is always best in such cases for the mistake to remedied as soon as possible. I know that there will potentially be issues of ascertaining what has happened and getting the requisite consents and so on. I am not in a position to make any comment on the particular circumstances of this case where the position may not have been straightforward and where there does not seem to have been any objective delay. Nonetheless I hope it may be helpful to say that where the case is one of a mistake by interment in the wrong grave, I will be sympathetic to efforts speedily to rectify the situation. As long as I am satisfied that there has been a mistake and that every relevant person involved is in agreement, then, upon undertakings that a petition will be lodged in due course, I would be prepared to authorise exhumation in advance of the formal paperwork being supplied.”

[Link to Judgment] [Top of Page]

Re Holy Cross Cemetery Wallsend [2016] ECC New 2 The petitioner sought to exhume the remains of his late sister, Miss Anna Shek, from the consecrated section of Holy Cross Cemetery and reinter them in another plot within the unconsecrated general section. After considering the principles in Re Blagdon Cemetery [2002] Fam 299, the Deputy Chancellor was satisfied that there were  special factors in this case which make it an exception to the norm of permanence; he authorized the exhumation of Anna’s remains so that they may be reinterred in the family grave, based upon the evidence:

  • the death of Anna at a young age when she could not have expressed any view about where she would have liked to be buried;
  • the absence of any link between her and the community in which she was buried. Notwithstanding she is in the same Cemetery, she is at the opposite end of it and is buried separate and apart from her family and her unique community;
  • the understandable inability of Anna’s father, as a recent immigrant with no English, to consult and communicate the wishes and feelings of the family at what was obviously a deeply upsetting time;
  • the importance of the family grave to members of this community. He noted the longstanding tradition that, where families are split up, subsequent exhumation to achieve the objective of the family all being buried in the same place is common place;
  • the exhumation will make available another plot of land for use by someone else and is thus an economical use of land. [Link to Judgment] [Top of Page]

Environmental permit application

Notice: TA4 3AD, Parochial Church Council of St James the Less: environmental permit application advertisement This is a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2010 for the discharge 0.20 cubic metres per day of domestic sewage to groundwater at National Grid reference ST 14011 27750 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; also at St Nicholas Great Kimble, here. [Link to EA Notice] [Top of Page]

Cite this article as: David Pocklington, "Recent consistory court judgments – January 2016" in Law & Religion UK, 2 February 2016, https://lawandreligionuk.com/2016/02/02/recent-consistory-court-judgments-january-2016/

5 thoughts on “Recent consistory court judgments – January 2016

    • I was thinking along different lines when I wrote the post this morning; instead of “a classic ‘mistake’ case”, perhaps chancellors ought to label such cases “another funeral industry blunder”. If this industry was dealing with FMCGs (i.e. fast moving consumer goods) one could accept the odd slip-up, but not for a lack of attention to detail with regard to quite basic operations.

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