Although relatively few consistory court judgments were reported in August, those that were are not without interest: the issue of pew vs chairs in Re Holy Trinity Long Itchington was followed by a more general post on the practicalities involved, and although not an unusual or unexpected judgement, the case raised a degree of  media interest. Another airing was given to whether unwanted fonts should be buried, and the development of procedures within the new Leeds Diocese resulted in led to a standardization of churchyard regulations Re St. John the Baptist Adel and St. Michael Markington. This will be considered in more detail in a future post. Also in the Leeds Diocese,  Re St. Michael and St. Lawrence Fewston considered, inter alia, the failings within the former Diocese of Bradford relating to the exhumation of 154 sets of human remains.

To these will be added Frank’s subsequent post Exhumation, reburial and judicial precedent: Re Sam Tai Chan which will analyse Re Sam Tai Chan [2016] ECC Dur 2, Bursell Ch. [See note on the citation of this case] The judgment includes a detailed discussion of the decisions of the Arches Court of Canterbury and the Chancery Court of York on the exhumation and reburial of remains in consecrated ground, and on the rule of precedent in the ecclesiastical courts.

In addition, the Church of England has published the decision regarding an application for permission to appeal out of time against a decision of the Bishop’s Disciplinary Tribunal for the Diocese of Durham, and an application for leave to appeal against that decision.

Recent CFCE determinations are listed here.

Ecclesiastical court judgments

• Reordering, extensions & other building works
• Exhumation
• Churchyards and Burials
• Fonts

Reordering, extensions & other building works

Removal and replacement of pews &c

Re Holy Trinity Long Itchington [2016] ECC Cov 7 The petitioners wished to remove the Victorian pews from a Grade II* listed church and replace them with wooden upholstered chairs. The Victorian Society and Historic England both accepted that the pews were of no particular merit, but objected to them being replaced with upholstered chairs, though they did not wish to be parties opponent. The Chancellor granted a faculty for the removal of the pews, on condition that the replacement chairs should be un-upholstered and of a design to be agreed between the petitioners and the Diocesan Advisory Committee, and in default of such agreement to be decided by the Court. [Link to post] [top]

Re St. Peter Welford-on-Avon [2016] ECC Glo 1 The Petitioners wished to replace the Victorian pews of a Grade I listed church with 64 solid chairs and 48 folding chairs (the folding chairs to be housed in three purpose-built wooden cabinets). The written representations of 25 objectors were taken into account. Within the evidence there was a suggestion that the pews were of historical significance as they were thought to have been designed by Sir George Gilbert Scott. The Deputy Chancellor concluded that there was insufficient evidence to justify such contention. A faculty was granted, subject (inter alia) to the retention of eight short pews. [Re St. Peter Welford-on-Avon [2016] ECC Glo 1 pews] [ top]

Fonts

Re St. Michael & All Angels Blackheath Park [2016] ECC Swk 13 The proposals were for a major re-ordering of this “remarkable” Grade II* church. The local authority objected to one aspect of the scheme, the removal and burial of the existing font; Historic England expressed a reservation about the proposals for the new font. Neither objector wished to be a party opponent. The Chancellor concluded that the better course in this particular case would be to place the old font into storage, and a faculty for the re-ordering scheme was granted on this basis. The judgment contains a review of recent decisions relating to the disposal of fonts. [top]

Exhumation

Re St. Michael and St. Lawrence Fewston [2016] ECC Lee 7 In 2008, a faculty had been granted for the demolition of a building in the churchyard and the construction of an extension to the church, which had necessitated the exhumation of 154 sets of skeletal remains (the ‘Fewston Assemblage’); these were removed from the churchyard during excavations for the erection of the Washburn Heritage Centre. The new petition in 2016, sought permission to reinter the skeletal remains in the churchyard and to erect three memorials to record the re-interments. Chancellor Mark Hill, QC, was highly critical of the various parties associated with the exhumations  and of the general lack of a complete “paper trail” of relevant document. He said:

“7. There is no explanation within the papers as to why human remains had been unlawfully exhumed nor a judgment or other note giving reasons for authorising wholesale dis-interments on an ex post facto basis. The faculty jurisdiction is not some limpid simulacrum of the secular planning system, which it predates by many centuries. It is a vibrant functioning expression of the ecclesiology of the Church of England which helps to facilitate its mission and witness as the church of the nation. A key function of the consistory court is the maintenance of Christian doctrine. If there is to be a departure from the theology of the permanence of Christian burial, it should only be after careful consideration, which should invariably precede any disinterment: see Re Christ Church, Alsager [1999] Fam 142, and its development in the southern province in Re Blagdon Cemetery [2002] 4 All ER 482”.

However,

“8. …The court had power to authorise the exhumations, even retrospectively, and the presumption of regularity applies. Compare, for example, Re Christ Church, Spitalfields (London Consistory Court, 14 December 2014) where the chancellor purported to grant a faculty for works which were arguably in breach of the statutory prohibition then to be found in the Disused Burial Grounds Act 1884. See the judgment of the Court of Arches, 24 September 2015.”

Furthermore, since the remains exhumed in 2008 had not immediately been reinterred in consecrated ground, the petitioners should have applied for a Ministry of Justice licence. Consequently,

“10. It would appear therefore that not only did those responsible for the exhumations proceed without the authority of a faculty, they also committed a criminal offence. As explained in Re Halifax Minster [2016] ECC Lee 6, at para 10, a confirmatory faculty does not retrospectively legalise what has been done but for the future brings the matter within the four walls of the law. This court has no power to relieve those responsible from criminal penalty: it will be for the prosecution authorities to determine what, if any, action should be taken.”

Against this background,

“13. Significantly, the petitioners have taken considerable care in addressing the issue of re-interment with sensitivity and thoughtfulness. This suggests that the serious matters I have touched on earlier in this judgment were the consequence of inadvertence founded upon ignorance of the law, rather than disrespect for the sacred place of burial and those whose remains were to be disturbed”.

The Chancellor granted a faculty for the re-interment of the ‘Fewston Assemblage’, the erection of the three proposed memorials, and the installation of an interpretation board. A service of commemoration is planned for mid-September.

[Note: the addendum dated 5 September 2016 to the original judgment of 17 is discussed in our round-up of September consistory court cases, t.b.a.] [top]

Churchyards and Burials

Re St. John the Baptist Adel and St. Michael Markington [2016] ECC Lee 8 The Chancellor granted the two linked petitions in relation to the establishment of bespoke Churchyard Regulation for the churches concerned. The petitions were relatively straightforward: that of St. John the Baptist, Adel seeking to limit the approved material for memorials solely to York sandstone [15 to 18]; and at St. Michael Markington, to legitimise the continued use of the garden of remembrance until the remaining spaces have been filled [19 to 21].The interest in this judgment is the development of standard Churchyard Regulations within the Diocese of Leeds, with the ability to permit “bespoke” regulations within this framework, as with the two churches considered here. [Link to post] [top]

 Cathedrals Fabric Commission for England

At the most recent Commission meeting on 19 July 2016, the following applications were considered:

• Canterbury Cathedral: new Welcome Centre and landscaping: Deferred for archaeological evaluation
• Durham Cathedral: Loan of medieval documents to Newcastle City Library
• Durham Cathedral: Conservation and display of two 7th-century log coffins
• Hereford Cathedral: Permanent loan of the marriage certificate of Charles II to the National Museum of the Royal Navy, Portsmouth

The next Commission meeting is on 22 September 2016 when the following applications will be considered:

• Carlisle Cathedral: New extension to the Fratry Building
• Durham Cathedral: Loan of Blake illustrations to Palace Green Library
• Ely Cathedral: Two areas of hard standing adjacent to the Cathedral
• Hereford Cathedral: Conservation of one of the books forming the Cathedral’s Chained Library
• Newcastle Cathedral:  Investigations into the damp problem in the Crypt
• Newcastle Cathedral: Excavations for the installation of a platform lift in the North Aisle
• Portsmouth Cathedral: New Spanish Trumpet organ stop in the blind windows of the nave clerestory
• Southwell Minster: Change the eastern roofs of the Cathedral from slate to lead
• York Minster: Conservation and new isothermal protection for Nave North Aisle windows n25 to n27

Appeal under the Clergy Discipline Measure 2003

On 4 August 2016 the Church of England published the decision regarding an application by the Reverend David George Huntley: for permission to appeal out of time against a decision of the Bishop’s Disciplinary Tribunal for the Diocese of Durham on 5 May 2016, reported here; and an application for leave to appeal against that decision.

The Chancery Court of York concluded:

19. The Applicant did not receive written reasons for the Tribunal’s decision until 7 May 2016, three days before the time expired. He therefore had only a very limited time within which to formulate his grounds for seeking to appeal, and in those circumstances the designated officer accepts, as do we, the rule 9(7)(a) [Clergy Discipline Appeal Rules 2005 as amended by the Clergy Discipline Appeal (Amendment) Rules 2013] is satisfied. Nor is there, nor could there be, any suggestion that rule 9(7)(c) stands in the Applicant’s was. However, for the reasons we have already given, there is not a real prospect of success on appeal or any other compelling reason why the appeal should be heard, and therefore rule 9(7)(b) is not satisfied.

The relevant parts of the CD Appeal Rules, as amended, are shown below.

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Copies of judgments

As explained in our index of 2018 judgments, copies of the above judgments are now available via the web site of the Ecclesiastical Law Association.