Summaries of April’s bumper crop of consistory court judgments (and none behind a pay-wall!)
Consistory court judgments This month’s sixteen consistory court judgments considered a wide range of issues: loans; reordering, extensions & other building works; exhumation, churchyards; organs; and (tubular) bells. As in previous judgment round-ups, we have made extensive use of page navigation links to assist readers in “cherry-picking” areas of interest.
The differing approaches adopted by chancellors in relation to the permanence of Christian burial and family graves, was raised again in Re West Norwood Cemetery; and an unusual request for the reservation of a grave space for four petitioners was considered in Re St Mary Hellesdon. The case of Re All Saints Waldron is another example of those petitions that are sent to try the patience of chancellors; here the PCC, their consulting architect and the DAC all came in for criticism. Like the consultation responses of a certain trade association representing the interests of the quarry industry, this is one that David would file under “Don’t do it like this”.
Some of this month’s judgments address issues of more general concern that will be considered in future posts: the broader aspects of reordering such as churches with small congregations faced with substantial repair cost, Re Holy Trinity Kimberley, and the aspects of Theseus’ paradox raised in Re St Peter Brighton; and the sensitive issue of the application to the Churchyard Regulations raised in Re St Bartholomew Wick (Thomas the Tank Engine headstone) and Re The Churchyard of Quarrington Hill  ECC Dur 1 (Sunderland Association Football Club colours on headstone). Finally, we await with interest the fate of (part of) the cremated remains of Tom Sharpe following the Chancellor’s direction in Re St Aidan Thockrington  ECC New 1.
Neutral Citation The recent issue of the Journal of the Ecclesiastical Law Society includes an article by the Dean of Arches in which he explains the use of neutral citations in the ecclesiastical courts and the advantages of this change of practice, (2016) 18 Ecc LJ 158-164. The Dean has also issued Practice Note No.1 of 2016; this amends the earlier list of neutral citations in the Schedule to Practice Note No. 1 of 2015 in light of the decision that the Diocese of West Yorkshire and the Dales is to be known as the Diocese of Leeds. Judgments of its consistory court will now be cited as “ECC Lee”. The citations in L&RUK for the three 2016 judgments already handed down in the diocese have been changed to reflect the changes in the web site of the Ecclesiastical Law Association. We have also modified the citations of these cases.
Registrars’ Fees The Legal Officers (Annual Fees) Order 2015 came into force on 1 January 2016; the Order prescribes the annual fees payable to diocesan registrars in 2016 for professional services specified in Schedule 2 to the Order, and fixes annual fees for 2016 for the provincial registrars.
Court of ecclesiastical causes reserved S5 Ecclesiastical Jurisdiction Measure 1963 requires that:
“The Court of Ecclesiastical Causes Reserved shall be constituted of five judges appointed by Her Majesty, and of them two shall be persons who hold, or have held, high judicial office and who make a declaration that they are communicants and three shall be persons who are, or have been, diocesan bishops.”
In November 2015, by Warrant under the Sign Manual, Her Majesty appointed Lord Hughes JSC, Lord Justice Clarke and the Bishops of Chichester, Coventry and Manchester for a period of five years, backdated from 1 July 2015.
Latest CFCE determinations The last meeting of the Cathedral’s Fabric Commission for England (CFCE) was on 17 March 2016, and links to these and those to be considered on 12 May are given below.
Consistory Court judgments
Re Holy Trinity Kimberley  ECC S&N 1 One of the three petitions considered in this judgment related to the loan of tubular bells to the Bell Foundry Museum in Loughborough, [11, 12]; a further judgment will be prepared in the light of the response from the CBC as required under rule 8.6(1)(c) of the Faculty Jurisdiction Rules 2013 on account of the historic significance of these instruments. [See below]
Re Holy Trinity Southport  ECC Liv 5 A petition was sought for works to this Grade II* listed church “built to cathedral-like proportions”: in addition to non-contentious repairs, these comprised significant re-ordering for which the major issue of concern was the introduction of a two-storey ‘pod’ in the north transept, and to a lesser degree the creation of toilet facilities at the north-west porch, under the tower. Historic England and the Victorian Society expressed reservations, particularly with regard to the former component, but did not become parties opponent.
On account of the pressing need to obtain grants, the Chancellor granted interim faculties in relation to the non-contentious areas and also the toilet facilities  which will have a low impact on the significance and character of the building . The proposals in relation to the north transept will have a substantial impact on the character and significance of the building, but having inspected the building and reflected on the proposals, the Chancellor believed that the need for these facilities, and the benefits respectively enuring to them, are sufficient to justify this intrusion on the character and significance of the building as a whole . A faculty was granted subject to conditions including the inclusion of an amendment to the proposal so as to maintain the view of the window situated above the proposed pod . [Top].
Re Holy Trinity Kimberley  ECC S&N 1 This comprises the first of two judgments and concerns two petitions in respect of the unlisted church building: the replacement of the organ with a modern instrument; and a major reordering scheme to incorporate community facilities. Although evidence was heard on a third petition relating to the loan of tubular bells to the Bell Foundry Museum in Loughborough, [11, 12], a further judgment will be prepared in the light of the response from the CBC as required under rule 8.6(1)(c) of the Faculty Jurisdiction Rules 2013 on account of their historic significance.
The Parochial Church Council proposed to partially fund the work from the sale of the adjoining dilapidated church hall. The sale of the Church hall and its associated land that is used for car-parking did not come before the consistory court as this is unconsecrated land and not subject to the faculty jurisdiction. However, the issues form part of the background to the applications and to the objections voiced by the parties opponent . There were three parties opponent, including two employees of the Town Council.
The Acting Chancellor noted: “In order to fund the essential maintenance work, the provision of community space is necessary. More importantly, the proposed works are necessary for the church building to have the best chance of continuing to a place of living Christian worship and service in the future”. Faculty granted in respect of the replacement of the organ and the reordering. [Link to post] [Top]
Re St Elphin Warrington  ECC Liv 1 The petition concerned a “moderate” reordering PCC of a Grade II* church  that had the support of the PCC and parish and was recommended by the DAC. Objections had been raised by the Victorian Society, although it did not become a party opponent. “When the proposals are viewed on the ground they amount to the building of a [carpeted] wooden stage to the height of the two chancel steps which runs the whole length of the choir” . English Heritage referred to its advice in New Work in Historic Places of Worship Good Practice Advice Note. The plans for the portable nave altar had already been approved. The Chancellor noted that the applicants were motivated by a real desire to make the church more accessible both to the community and to the congregation in terms of their participation in the Liturgy , and that the proposals were completely reversible. Faculty granted. [Top]
Re All Saints Ockbrook  ECC Der 1 The Chancellor refused to grant a faculty for the removal of a number of short side-aisle pews as, in applying the guidelines in Re St. Alkmund Duffield, he found that the petitioners had failed to provide a clear and convincing justification for the removal of the pews. He stated that if the PCC wished to remove the pews they should produce a more comprehensive plan for re-ordering the interior of the church.
Nevertheless, the petitioners were given permission to continue to relocate the pews within the building, and/or introduce temporary seating and tables, as required, in the side aisles, during the period expiring 30 June 2017, or such further period as may subsequently allowed, for the purpose of framing a more comprehensive plan for re-ordering the interior. If no such scheme has been presented to the DAC prior to that date, the court will give Further Directions, which may include a requirement that the petitioners restore the arrangement of the side aisles to its earlier status. [Top]
Re St Philip Litherland  EEC Liv 3 The petition proposed a major reordering of the grade II listed church (its architecture albeit derided by Pevsner (1969) ). Although supported by the PCC, the congregation, the DAC and in essence by English Heritage, there were objections from the Victorian Society, but not as a Party Opponent. The Chancellor noted :
“This petition represents the classic tension between the obligations of a congregation for the resources with which they have been entrusted on the one hand with the need to cater for the needs of the community and to provide a living setting for worship on the other. It is clear that change will only be sanctioned where it is properly justified by the applicants.
There is a licence at present to allow the altar to be moved slightly further forward to permit a westward celebration. However, “it is clear that that will only accommodate a slender priest and at present the celebration is conducted from the North End of the Table”. Whilst the removal of the (unused) choir stalls would have some effect, it was reversible. The removal of the pews and their replacement with upholstered chairs on a carpeted floor was not. After reflecting long and carefully the Chancellor was convinced that sufficient justification has been made for this reordering which would provide a warmer space with more flexible options for use, despite the significant and irreversible changes to character of the building. Faculty granted, subject to conditions. [Top]
Re Christ Church Hengrove  ECC Bri 4 The Chancellor, noting that the petition “[scraped] past the threshold” , granted a faculty to authorise the removal of a number of pews from the front of the nave of the unlisted church building, in order to allow greater flexibility of use of the church, subject to the condition that the pews should be stored in the church hall skittle alley, with liberty to apply for them to be removed permanently, if the experiment proved successful. However, there were clearly some pastoral issues in this case to which the attention of the archdeacon was drawn in the hope that matters could be rectified. [Top]
Re St Peter Brighton  ECC Chi 2 A faculty was sought for various internal work including a stage, light rigging &c. This follows the reordering considered in Re Brighton St. Peter  Chichester Const Ct. which included the re-introduction of choir stalls into the Lady Chapel as part of a “church plant” scheme from HTB. The previous judgment contained directions relating to regularizing the work purportedly undertaken by the archdeacons’ licences granted in 2009 and 2010. These works were “manifestly unsuitable for an archdeacon’s licence: they are far too extensive, they comprise alterations to the fabric of the building and perhaps most significantly there were not (nor were they intended to be) temporary in nature”.
The contentious issue was the proposed new wall-to-wall carpet and the ‘bland’, black chairs which were inappropriate for a Grade II* and important Victorian church in the centre of Brighton. However, the Chancellor granted a limited licence for five years, requiring the petitioners at the end of such period to produce more appropriate long-term proposals. [Top of Page]
Re All Saints Lindfield  ECC Chi 4 The Faculty petition proposed a major reordering of a Grade II* church. The Victorian Society was a party opponent. The Chancellor approved the proposals generally, concluding that the benefits would outweigh any harm to the church. However, he was not prepared to approve the proposed red upholstered chairs, (Phew!). He therefore gave a stay of proceedings for 28 days, to allow for the petitioners to consider the judgment and put forward an alternative proposal for the chairs, which the Chancellor might find acceptable. [Top of Page]
Re All Saints Waldron  ECC Chi 3 The petitioners sought a faculty for this Grade I listed church for: the installation of new lighting and rewiring; and reordering of the north aisle by removing the pews and lowering the Victorian softwood timber pew platforms to the same level as the ceramic tiled gangways, to create a large area for multi-functional use. However, the petition contained no proposals for replacing the removed pews with chairs nor was this indicated on the public notice.
Although the Chancellor was satisfied that the petitioners had made a case, albeit in a shambolic manner , for the reordering, he declined to grant a faculty until the design, make and number of replacement chairs for the north aisle had been approved by the court, following consultation with the CBC, the DAC and the parish more widely, including further public notice. The only actors to come away with any credit were the various objectors who expressed their concerns [but not their objections] in a “measured and a dignified manner” . [Top of Page]
Re Mortlake Cemetery  ECC Swk 6 The petitioner applied for a faculty for the exhumation of the remains of her mother, interred in Mortlake Cemetery in 1978, and for their re-interment in a cemetery in the USA, near to where the petitioner lived. The Petitioner was the deceased’s only surviving child and had lived in the USA since 1953. The Petitioner’s children and their families all lived near to her and an area in the cemetery near to her home had been reserved for the burial of members of her family, where one of her daughters was already buried.
Subsequent to the Chancellor ascertaining facts relating to the case and the petitioner’s intentions regarding her own remains after death, he transferred the Petition to the Deputy Chancellor for determination. Although on the facts the Chancellor could not identify any “exceptional circumstances”, the Deputy Chancellor was not bound by this finding. To enable the Petitioner to address the Court in person, the Hearing was held be telephone conference and attended by the Registrar and Registry Clerk, and by the Petitioner in California and the undertaker who had been assisting her.
The Deputy Chancellor noted  that whilst the guidance in Re Blagdon Cemetery  Fam 299 on particular arguments is valuable: there is no suggestion that the scope of possible exceptions is limited to these categories; and the facts in the current Petition did not fall exactly within all or any of the circumstances specifically addressed. In her conclusions that stated that she was persuaded that this is a genuine and exceptional case, and did not regard the long delay since burial as a reason for refusing to exercise her discretion in favour of the Petitioner.[Top]
Re West Norwood Cemetery  ECC Swk 7 The petitioner’s father died in 1985 and his body was interred in a double plot in the consecrated part of West Norwood Cemetery on the expectation that the petitioner’s mother would be buried next to her husband. At that time financial considerations precluded burial of her father in the family grave in Murrisk Abbey, County Mayo, Ireland. Before her death in 2014 the petitioner’s mother expressed to her a wish to be buried in the family grave in Ireland and to have her husband’s body exhumed, cremated and buried with her in the family grave; these arrangements represented a change of mind of the petitioner’s mother, “a Roman Catholic very much of the old tradition” in relation to the acceptability of cremation: this was forbidden until 1963 and whilst now allowed, Canon 1176 (CIC) commends burial.
The Chancellor concluded that the “true foundation for the petition is no so much changed by the attitudes to cremation but the fact that in 1985 [the petitioner’s mother] could not afford the expense of her late husband’s body being taken to Ireland for burial”. “On no view is this the strongest case for making an exception to the norm of permanence [of Christian burial]”. However, other factors were taken into consideration: the petitioner’s desire to honour her mother’s last wishes; and proposed re-interment would be in a family grave, freeing up two spaces at West Norwood. Taking all matters into account, the Chancellor determined that a faculty should issue, although whether the petitioner’s fathers were cremated or not was left to the petitioner.
Significantly, the Chancellor noted:
“I do not think that of itself the fact that the proposed re-interment would be capable of being a significant justification since, if it were, it would severely undermine the ability of the Court to maintain the norm of permanence. (In this view I know I differ from the views of some of my fellow Chancellors). Nonetheless this does not mean that it is not a factor to be taken into account in a case like the present I support of the petition. [Top]
In the Matter of Cyril Jones (Deceased)  ECC Liv 4 Cyril Jones was buried in the churchyard of St Margaret Orford in 1990. His widow, Esther Jones, who died in 2015, was buried in Fox Covert Cemetery; during her lifetime, realised that there would be no room for her to be buried with her husband, and she had expressed a strong wish to her family that she should be buried in the cemetery. The Chancellor noted:
“7. … In my judgment there are only three matters that may be taken into account: first, that Mrs Jones made a mistake in interring her late husband’s remains in a full garden, a mistake which she regretted almost from the outset; secondly, that Mrs Jones delayed seeking exhumation on the grounds of her own personal belief that she felt that such would be inappropriate in her lifetime; and thirdly, there is now a desire to create a family grave.
9. …when considered together, do constitute exceptional circumstances in this particular case, one very much decided on its own facts.”
Faculty granted. [Top]
Re St Bartholomew Wick  ECC Bri 3 The Chancellor refused to grant a faculty to allow a coloured engraving of Thomas the Tank Engine on a memorial to a three year old child; although clearly a departure from diocesan Churchyard Regulations, the Chancellor was wrong-footed by the registry in its failure to include his January 2014 clarificatory amendment to the on-line version of regulation 4.6 which banned “any images or carvings that are not explicitly consonant with orthodox Christian belief”.
With regard to the petitioners’ comment about existing headstones, the Chancellor stated that he could not imagine circumstances in which he would have allowed a picture of a teddy bear to be engraved on a gravestone. Churchyard regulations clearly state:
“5 EXISTING MEMORIALS It is not uncommon for churchyards already to contain memorials introduced in the past (with or without faculty) which do not conform to the criteria set out in section 4 above. However, such memorials are not to be followed as precedents. If there is any doubt, the advice of the Registrar or the DAC should be sought”.
Chancellor Gau noted that “matters of sentiment and aesthetic judgment are fraught areas” as identified by the petitioners’ letter which identified several headstones in the graveyard are, in their view, “vulgar to look at”. He noted that “[those] same headstones, vulgar to strangers, must have given comfort to the deceased’s families when they were erected (but only presumably, to them) however, inappropriate they now appear to those who did not know the deceased”. [Top]
Re St Mary Hellesdon  ECC Nor 6 The four petitioners (one of whom wished to be cremated) petitioned to reserve exclusive rights of burial for 30 years in a triple-depth grave next to their parents’ grave. The Chancellor sought and received confirmation that the ground conditions at Hellesdon would permit of a triple-depth grave, and that there was space in the churchyard for approximately twenty years of burials in accordance with diocesan practice. The petitioners were unsuccessful in demonstrating that the reservation should be for a further ten years; the petition indicated that eldest was 63, other information suggested 56 .
Chancellor Ellis could not find that the circumstances of the petitioners was in any significant way different from that of many people who may wish to be (and have a right to be) interred in Hellesdon churchyard, Re St Margaret, Drayton  Norwich Const Ct, Arlow Ch considered here. She noted “there is still a good likelihood that they will all ultimately be interred in their chosen plot in Hellesdon churchyard … it is, of course, open to them to apply for an extension of that period at a later date should the need arise. By that stage the parish may well have acquired addition burial spaces either through the acquisition of additional land or through the reuse”. [Top]
Re St George Hanworth  ECC Lon 3 This judgment arose out of a hearing before the Chancellor in Re St George Hanworth  ECC Lon 1. The issue of costs was referred to the Deputy Chancellor, who determined that the bulk of the costs of the London Borough of Hounslow should be paid by the Parochial Church Council. [Link to Article] [Top]
Re The Churchyard of Quarrington Hill  ECC Dur 1 The Petitioner applied for permission to erect a memorial to her son, who had been tragically run over and killed by a motor car. The memorial as installed bore features which were not mentioned in the memorial application – black stone; gold lettering; a photo plaque; the insignia of a football club; and the club colours (red and white) painted in alternate stripes along the edges of the memorial. The Chancellor directed that the edges of the memorial should be painted black, and the photo plaque should be removed or replaced with an incised, uncoloured portrait. In default of the amendments being made within three months, the Chancellor directed that the memorial should be removed from the churchyard. [Link to comment] [Top]
Re Holy Trinity Kimberley  ECC S&N 1 The replacement of a pipe organ with an electronic instrument was one aspect of the reordering considered in judgment, [See above].
Bells were addressed in Re Holy Trinity Kimberley  ECC S&N 1, above, although this related to the loan of tubular bells on account of their historical significance, [See above].
The last meeting of the Cathedral’s Fabric Commission for England (CFCE) was on 17 March 2016 at which it considered the following applications:
- Bristol Cathedral: draught reduction and repairs to doors
- Chichester Cathedral: Western Cloister
- Chichester Cathedral: Western Cloister gate
- Chichester Cathedral: cleaning and conservation of two Romanesque reliefs
- Lincoln Cathedral: archaeological sondages
- Lincoln Cathedral: Romanesque Frieze conservation policy
- St Edmundsbury Cathedral access to Tower
- Wakefield Cathedral: pulpit and cathedra (TBC) – determination deferred for more information.
- Winchester Cathedral: Deanery refurbishment
The next Commission meeting will on 12 May 2016 when it will consider the following applications:
- Canterbury Cathedral: loan of pilgrim ribbon to the Fitzwilliam Museum
- Carlisle Cathedral: archaeological trial trenches
- Hereford Cathedral: SAS memorial
- St Albans Cathedral: new Welcome Centre
- St Paul’s Cathedral: loan of two charters to the Museum of London
- St Paul’s Cathedral: Cathedral School development
- Winchester Cathedral: font investigation and analysis
- York Minster: loan of cope chest to the Victoria and Albert Museum
Links to the Ecclesiastical Law Association web site
At the end of 2018, the ELA web site was rebuilt using a more up-to-date framework; however, one consequence was that it is no longer practicable for us to include direct links to the site; from September 2018, therefore, the L&RUK site has held copies of all new judgments reviewed; for cases prior to this date, these can be accessed directly from the ELA web site.