Overview

Although fewer judgments were reported this month in comparison to April, they covered a wider range of issues including: reordering, extensions & other building works; telecommunications; exhumation; churchyard memorials; and fonts. Those of particular interest are: Re St Mary Mildenhall involving “a flagrant disregard of the faculty jurisdiction” by both the Priest-in-Charge and an electrical contractor; Re Quoc Tru Tran, deceased , concerning non-Christians mistakenly buried in consecrated ground, again; Re Astwood Cemetery, which provided yet another example of the discrepancy between chancellors in the application of the “family grave” guidance; and Re St Philip Scholes where there was an examination of the law relating to the disposal of fonts. These will form the basis of future posts which will consider the issues in greater depth, [Update:  also Re St. Mary the Virgin Burghfield, in relation to the removal of unauthorized items &c from graves]

Some of the decisions reached at the 12 May meeting of the Cathedrals Fabric Commission for England (CFCE) have now been reported, and the CofE has also published the findings of a disciplinary tribunal under the Clergy Discipline Measure (CDM).

Consistory Court Judgments

• Reordering, extensions & other building works
• Telecommunications
• Exhumation
• Churchyards
• Fonts

Reordering, extensions & other building works

Re St Leonard Watlington [2016] ECC Oxf 3 The petitioners sought approval for the replacement of five cast iron downpipes and associated hoppers on a Grade II* listed church with rainwater goods manufactured in high density polyethylene (HDPE) . The HDPE replacements had an expected lifetime of 40 years, were half the cost of cast iron, and would be easier to install and maintain. The proposed replacement was based upon a document produced by Mr Raymond Jackson, a member of the fabric committee of the Parochial Church Council “and a Chartered Engineer”. The court accepted that Mr Jackson had a “professional, scientific background” but since he did not say that this particular subject is within his area of expertise, it was unable to attach a great deal of weight to his evidence in this regard [33] – clearly a lesson for other cases in which “expert evidence” is submitted to the court.

The DAC, CBC and Historic England (HE) did not recommend the use of HDPE; HE’s expert stated that the use of iron allows rainwater goods, and their associated fixings and hoppers, to be cast with a degree of crispness not matched by extruded plastic pipes [7]. Although HDPE rainwater goods have been in use on the United Reform Church in Guildford since 2012 and on Holy Trinity church, Long Melford since 2010, neither is indicative of the long term durability of HDPE in practice. The circumstances were “markedly different” in the latter case where “HDPE was approved as an experiment only due to ongoing problems of metal [lead] theft” [16] .

Applying Re St Alkmund, Duffield [2013] Fam 158, the Chancellor refused to grant a faculty, noting: “[a] serious difficulty for the petitioners is that the statutory bodies with expertise in the care of historic church buildings – Historic England, CBC and DAC – each reject the petitioners’ case in respect of the benefits and durability of HDPE” [31]. [Top]

Re St Mary Mildenhall [2016] ECC SEI 1  In the court’s considerations of the unauthorized works to this Grade I listed church, two matters were before the Chancellor: an application for a confirmatory faculty in respect of a sound system installed without faculty in 1997; and an application by the Archdeacon for a restoration order in respect of lighting installed in the west porch in 2015 without faculty.

In his consideration of the unauthorized work to the sound system [5 to 21], applying the decisions of the Arches Court in In re St John the Baptist, Penshurst [2015] WLR (D) 115 and In Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor had no difficulty in finding that the proposals, if implemented, would not result in any harm to the significance of this church as a building of special architectural or historical interest. He also had no difficulty in concluding that the provision of sound amplification in this large church is justified and necessary [14].

He noted that since “the work can be carried out under supervision and in stages to change from one poorly sited speaker system to a properly sited one (i.e. rather than the “do it yourself” spirit adopted by the church [2])”, he also judged that, in consequence, reasonable objection was highly unlikely [17]. Accordingly a confirmatory faculty was granted for the audio system in the church subject to a number of conditions including repairs to walls and stonework by a stone conservator and repair of the timberwork, both requiring full consultation with the DAC.

With regard to the application for a restoration order, [22 to 44] the Chancellor outlined the problems created [33], the potential implications of compromising the ecclesiastical exception [47], and the impact on insurance cover [51]. He stated:

“[39]. … I am not prepared to grant a confirmatory faculty in this case. There was here a flagrant disregard of the faculty jurisdiction. It is the first case in this diocese that I have encountered, either as Chancellor or Deputy Chancellor, where petitioners have withdrawn an item from a petition for faculty and then proceeded to carry out the works previously petitioned upon whilst in preliminary discussions with the DAC about the proposal prior to re-petitioning the court for a faculty”.

He adjourned his final decision upon the application for a restoration order for 36 days from the date of this judgment to allow a petition for a faculty to be presented [41], and “unusually” permitted the present lighting to remain until such time as he has considered the grant of a faculty to relocate it more appropriately [43].

The Chancellor directed the Registrar to write to the electrical contractors who carried out the lighting works requiring a full written explanation for the works that were undertaken without faculty [44]. Since there appeared to be prima facie evidence that the electrician involved was complicit in the wrongful act [27], the Chancellor stated that on receipt of this information, he would consider what, if any, action he should take in respect of him or his company.

With regard to costs [45 to 55], in the absence of further representation by the petitioners, the Chancellor determined that the cost of all works, including repair work, would be borne by the PCC; likewise the court costs,- “a ridiculous waste of money that, from the parish’s point of view, could have been used in a different way”. His own broad perusal of the Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2015 suggests the figure would be well in excess of £3000, although proper and itemised assessment of the fees was for the Registrar. He concluded:

“[o]ne thing needs to be clear beyond any doubt whatsoever. This is never to happen again, either in this church or anywhere else”.

Indeed.

In 2014 we posted Ignorance of the Faculty Jurisdiction Rules is no excuse… following the judgment in Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct  and Re St Giles Uley [2014] Gloucester Cons Ct. By comparison, the criticism levelled at the P-i-C and churchwardens by Chancellor June Rodgers in these cases was quite mild; but whilst “ignorance” is one thing, “blatant disregard” is clearly another. [Top]

Telecommunications

Re St Luke Charlton [2016] ECC Swk 10 A faculty was granted to permit: the installation of telecommunications equipment in the tower of this Grade II* church; and the completion of a licence agreement with Net Coverage Solutions Limited. There were over 80 objectors to the proposal, and in addition concerns relating to adverse health impacts and the possibility of transmitting pornography, issues generally raised on these occasions but long since settled in science and law, there was a third tranche of objection based upon the previous incumbent’s alleged (unsubstantiated) undertaking. In response to the petitioners “side-stepping” this claim on the basis that even if an undertaking had been given it would not have been binding in law, the Chancellor stated [17]: “as a matter of law, an undertaking by one Rector would not be binding upon his successor and perhaps not binding upon himself. However that may be, it does seem to me that any such undertaking is potentially relevant to the decision making process on a subsequent occasion”.

The Chancellor considered that on the material before him, he could not properly approach the matter on the basis that an open-ended undertaking was given [19]; however, the alleged undertaking was 15 years ago, and:

“[i]t seems … that it is reasonable after a lapse of 15 years to allow the PCC to revisit its earlier decision. This does not mean that members of the congregation and/or parishioners are debarred from objecting to the proposals but this must be for reasons given. Only in an exceptional case would it be appropriate to seek to go behind the PCC’s decision on the basis that it was unrepresentative or for some other reason flawed” [21].

In granting the petition, the Chancellor stated “[the objectors] may feel, having read this judgment, that in the light of the previously decided cases that I refer to, there was only limited scope for their objections to lead to a conclusion that a faculty should be refused. I think that this is broadly correct.”  [Top]

Exhumation

Re Preston Cemetery, North Shields [2016] ECC New 3 The Petitioner sought to exhume the cremated remains of her late mother from one plot in the consecrated area of the cemetery and reinter them with those of her late father in another consecrated plot in the same cemetery. Her father died in 2006 and had been buried in the cemetery and in 2007 she purchased a plot for her mother near to her father’s plot. When her mother died in 2010 the Petitioner arranged for her mother’s remains to be buried in the separate plot which she had purchased, even though her mother had expressed a wish to be buried with her husband. The Petitioner now wished to have her mother’s remains interred with her father’s, according to the mother’s wishes. The Deputy Chancellor decided that there were no special circumstances within the guidelines laid down in Re Blagdon Cemetery [2002] Fam 299 to justify him in granting a faculty. [Top]

Re Astwood Cemetery [2016] ECC Wor 1 A faculty was granted to permit the exhumation of the remains of a husband for subsequent re-interment with the remains of his wife in another grave in the same cemetery. His wife had expressed a wish in her will to be buried with her husband, but her husband’s remains had been interred in a family grave where there had previously been three interments of bodies and three interments of cremated remains, and there was no room left to inter the remains of his wife. The sons were agreeable to their parents’ remains being interred together in a new grave and wished in due course to be buried in the same family grave. Uncertainty in application of “family grave” provision in Re Blagdon Cemetery [2002] Fam 299 was again noted. However, the Chancellor was satisfied that the circumstances (i.e. full family grave and creation of new one) constituted an exception to the normal rule that remains are not to be disturbed. [Top]

Re Quoc Tru Tran, deceased [2016] ECC Man 2 The Chancellor granted a faculty to authorise the exhumation of the remains of a Buddhist who had been buried in 1994 in a consecrated part of Southern Cemetery Manchester, so that the remains could be cremated. The ashes would be placed in the Buddhist Temple of Manchester Fo Guan Shan with those of his wife, who died in 2016. At the time of the interment in 1994, the family was unaware that the burial was in a Church of England consecrated part of the cemetery, when additionally there was no facility in Manchester for the storage of cremated remains in accordance with the Buddhist faith. [Link to post] [Top]

Churchyards

Re St Mary Allithwaite [2016] ECC Car 1 A faculty was sought for the reservation of a grave for a parishioner and his wife, aged 63 at the date of the petition, who wished to be buried in a grave next to the Petitioner’s mother. The PCC had passed a resolution in 2009 that it would not support future applications for the reservation of graves, as it was estimated that the churchyard would be full within ten years. The Chancellor commented:

“23. I have no doubt that the policy adopted by the PCC since 2009 is capable of being justified on reasonable grounds and is not inherently unreasonable. It is designed to achieve fairness to all who have a right to be buried in the churchyard and the absence of any faculties being granted to reserve grave spaces suggests that the policy has been accepted by others since such time.”

24. In my judgment my exercise of discretion should have regard to such policy because the PCC is likely to be well-placed to know the needs and desires of local parishioners and the circumstances of the churchyard. The position would be different if, as in Re West Pennard Churchyard, the purported policy of the parochial church council was illegitimate because it was based on a misunderstanding of the legal position.”

Faculty refused. [Top]

Re St Augustine Droitwich Spa [2016] ECC Wor 2 This 17-page judgment concerns the question of who – if anyone – has the right or duty to erect a commemorative memorial above the grave of a deceased person. The related procedural issue is how, in the event of a disagreement between competing relatives or others, the matter should most appropriately be resolved. Memorials in churchyards and municipal cemeteries also addressed. The Chancellor considered two petitions: (1) by the deceased’s partner to replace a memorial installed without authority by the deceased’s son, and (2) by the Archdeacon to replace the existing memorial with a memorial containing only the names and dates of birth and death of the deceased. The Chancellor had asked the Archdeacon to petition, so that, in default of an agreement between the parties as to a replacement memorial, the Chancellor was able to grant a faculty for a memorial with no contentious inscription. The Chancellor granted a faculty on petition (1), on the basis of an amended inscription agreed by the parties, and granted a faculty in relation to petition (2) in case the proposed memorial approved under petition (1) was not installed. [Top]

Re St. Mary the Virgin Burghfield [2011] Oxford Const Ct, Rupert Bursell Ch. [Halsbury refers to this case as “unreported” but a copy of the judgment has recently been made available on the ELA web site in view of the current interest in the issues raised] ] The PCC petitioned for permission to remove all toys, ornaments and other memorabilia and edgings from 67 graves within the churchyard, many of which items had been in the churchyard for a considerable time. The Chancellor considered all written objections, including a claim that to remove such items would be in breach of the law relating to human rights, but decided that the PCC was entirely within its rights in wishing to enforce the Churchyard Regulations, and accordingly a faculty was granted. [Link to post, t.b.a.] [Top]

Fonts

Re St Philip Scholes [2016] ECC Lee 5 A font constructed from breeze block and clad in marble had been removed from a 1996 unlisted church and broken up without the authority of a faculty, and the stainless steel bowl incorporated into a moveable wooden font, contrary to directions of the court. These consolidated proceedings were largely an enquiry into how “such an unhappy situation” arose, and the grant of a confirmatory faculty. However, these considerations gave rise to a number of subsidiary matters including the law relating to the disposal of fonts. [Link to post [Top]

CFCE Determinations

At the last meeting of the Cathedrals Fabric Commission for England (CFCE) on 12 May 2016 the following applications were considered.

• 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 – determination was deferred for more information, [t.b.a.]

The next Commission meeting will be on 19 July 2016 when it will consider the following applications:

• Canterbury Cathedral: New Welcome Centre and landscaping
• Durham Cathedral: Loan of medieval documents to Newcastle City Library
• Portsmouth Cathedral: Permanent loan of the marriage certificate of Charles II to the National Museum of the Royal Navy, Portsmouth

[Top]

Disciplinary Tribunal Decision – Huntley

The CofE page on Tribunal Decisions notes “[t]he majority of complaints that are made under the Clergy Discipline Measure are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal”. Between November 2007 and May 2016, these involved only 17 respondents, one decision involving two respondents.

In May 2016, the decision between the Venerable John Stuart Bain (Complainant) and the Reverend David George Huntley (Respondent) before the Bishop’s Disciplinary Tribunal for the Diocese of Durham was reported.

Sir Mark Hedley, the Deputy President, prefaced the proceedings with the explanation that discussions about a voluntary penalty had been inconclusive because the Respondent and the Bishop differed significantly about the conduct involved, although the conduct itself was admitted [1.1]. The Deputy President was satisfied that there was a case for the Respondent to answer before a disciplinary tribunal and formulate a charge as follows [1.2]:

“That the conduct of the respondent … was unbecoming or inappropriate to the office and work of a Clerk in Holy Orders within Section 8(1)(d) of the Clergy Discipline Measure 2003 in that, whilst vicar of St Lawrence Horsely Hill, he has had a sexual relationship outside wedlock with a member of the congregation, CG, whom he instructed and prepared for baptism in 2014, and who has become pregnant with the respondent’s child”.

The Tribunal concluded [7] that the admitted misconduct to be a more serious matter than is conceded by the Respondent. Its assessment of the gravity was in line with that of the Bishop having regard for the penalty he had proposed in 2015 to the Respondent. The Tribunal agreed with the Complainant’s perception that it is inconceivable that the Respondent could continue his ministry at St Lawrence’s and his continued aspiration to do so was another manifestation of his failure to comprehend the gravity of what has happened and the hurt done by it. Since he declined to resign from his preferment, it was necessary for the Tribunal to order that he be removed from office.

The Tribunal also considered that the misconduct alleged should be marked by a period of prohibition from exercising ministry [9] and its members were unanimous in their conclusions and saw no reason to depart from the penalty suggested to the Respondent by the Bishop of Durham of 2 years’ prohibition from exercising the functions of his Orders [10].

Postscript

The decision was subject to a subsequent appeal which was not upheld, August 2016: Decision; Order.

The Respondent was subject to further CDM proceedings in October 2017: Decision and Penalty. Although concerning significantly different grounds, the court considered the proximity of the latter matter to those of the previous proceedings a significant aggravating feature, and the tribunal unanimously decided on a penalty of prohibition for life.

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.