Review of the ecclesiastical court judgments during February 2017
February’s consistory court judgments have included:
In addition, the determinations of two CDM tribunals have been published, and we have published individual posts on the development of a Private Bill in relation to cemetery development, and on the attestation of York Minister Constables in order to give them police powers.
Reordering, extensions & other building works
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews &c
[Top]
Re St. Peter Bratton Fleming [2010] A scheme of extensive reordering and refurbishment has been in progress for a number of years at St. Peter Bratton Fleming, and the following four judgments relate to difference aspects of the project. There is a long history of Methodist-Anglican cooperation, and in 2004 the Methodist congregation decided to sell their own building, and join together with the Anglican communion using St Peter’s Church for their services. The sale of the Methodist church produced a fund which became available for expenditure on the re-ordering proposals for the church. [On CofE site A Church Near You, it is described as St Peters Anglican-Methodist, Bratton Fleming].
The team rector and church wardens sought a faculty for an extensive re-ordering and refurbishment of the Grade II church [12( i to ix)]. The relevant heritage bodies either supported or were not opposed to, the scheme as whole, although they do individually make different points against matters of detail. The DAC had “no objections”, but did not formally support the proposed works.
There were seventy objectors, of whom three became parties opponent. The Chancellor, Sir Andrew McFarlane, was unpersuaded of the Petitioners’ contention that that it was inappropriate to consider individual elements of the scheme and, indeed, given the disparate nature of what was proposed he considered that it is essential to do so. Furthermore, despite the close connections with the Methodist Church, the petitioners did not present evidence which marked Bratton Fleming out from any other similar Anglican parish seeking to modernise the ordering of its church &c. In assessing this petition, therefore, the court has no ground on the evidence before it to regard these proposals in a special or different light from those might be made by any other parish church.
The petitioners failed to establish their case in so far as it is based upon a general principle that supports an overall need for radical change. However, that did not indicate that each and every element of the proposed scheme must fail.; there were then considered individually.
The Chancellor approved the proposals relating to reordering of the West Gallery; demolition of the redundant boiler house and building of an extension to provide a meeting room, kitchen and toilet facilities; reordering of the Chancel; glazing to the South Door; and refurbishment of the pulpit, but felt that the petitioners had not made out a sufficient case to justify the remaining items, including reordering of the pews; relocation and reordering of the font; removal of the pulpit; and removal of the organ. [Back]
Re St. Peter Bratton Fleming [2011] The 2010 Faculty for reordering was amended to allow for certain consequential works, which included the removal of some pews and the remodelling of the pulpit steps. [Back]
Re St. Peter Bratton Fleming [2012] The Petitioner sought permission to move the font to a position in an area immediately to the west side of the main entrance to the church in the north wall and to remove three pews and install a redundant choir stall frontal in order to create a Baptistery area around the repositioned font. [This was a different proposal to the one contained in the 2010 petition for reordering.]
The present application was backed by evidence of the express support of the DAC, the Archdeacon, the CBC and a significant number of individual parishioners. However, proposal was hotly contested by a number of local residents, five of whom became party opponents. The Chancellor noted:
“The current application, whilst it relates to a relatively discrete and uncomplicated plan, has generated a file of documents, with arguments for and against, which is some two inches thick. I have read all of this paperwork.”
The Chancellor decided to grant a faculty, as the proposal would fit in with and complement the changes for which permission had already been given. Re St. Peter Bratton Fleming [2012] Exeter Const Ct, McFarlane Ch. [Back]
Re St. Peter Bratton Fleming [2016] ECC Exe 2* Further to the 2010 refusal of a faculty for the removal of the pulpit, in 2011 approval was granted for the remodelling of the pulpit steps. However, in 2012 the pulpit had was removed from the church without authority. Despite there being a ‘live’ Petition before the court for the baptistery reordering, with the parish in regular contact with the Registry during the period between August 2011 and April 2012, at no stage did those responsible for the on-going works inform the Registry or the court that the pulpit had been removed from the church in January 2012 [10].
In 2016, the petitioners applied for permission to remove permanently the pulpit from the church. Reminding the petitioners of the rule of law, and that the removal of the pulpit was unlawful, the Chancellor determined that the arguments for removing the pulpit had not changed since 2010, when he refused to grant a faculty for the removal of the pulpit, and accordingly he now refused again to grant a faculty for its removal. He noted that the Court does have power to make a specific order for the restoration of the pulpit, which may be directed at named individuals, but hoped that the outcome that had now been determined would be implemented without the need for an order.
He also suggested that ECC may wish to seek legal advice from the Registry or elsewhere as to how to proceed in relation to the costs and, in particular, upon the need to be alert to any conflict of interest there may be, so that those who might be liable to pay costs do not take part in the ECC deliberations on that issue. An order relating to costs was therefore considered to be premature at this stage. [Back]
Re St. John Waterloo [2017] ECC Swk 1* The case raised some issues which were particularly difficult and Chancellor Philip Petchey decided that he would be assisted by hearing oral evidence and submissions. The complexity of these issues is reflected in the length of the judgment, 65 pages in total. The church had been bombed during the Second World War, and had been restored in time for the opening of the nearby Festival of Britain Exhibition of 1951, according to designs of the architect Thomas Ford. The church was listed as Grade II* shortly after the restoration. With regard to the importance of the Ford interior, the Chancellor stated [emphasis added]:
“237. I do note that the Petitioners’ case is in respect of the impact of change is supported by the DAC who say in terms that the aesthetic value of the [Ford] scheme does not depend on preserving its integrity as a physical entity. It seems to me that the DAC (or least Mr Bates) does not ascribe a high value (or very high value) to the Ford interior, which makes this conclusion more understandable. But the witnesses that I heard did attach a high value to it, with the possible exception of Mr Russell (whom I note did not seek to draw my attention to any shortcomings in it). I do not think that I can go behind the consensus that the interior is of high value. I am fortified in this view by the fact that I am thereby adopting the view of Historic England and the local planning authority as well as that of the Twentieth Century Society.”
The Chancellor concluded that there was no sufficiently clear and convincing justification for carrying out the proposals which would outweigh the potential harm to the 1951 interior scheme. However, he stated:
“274. Even though I am not prepared to grant a faculty for the works which have been contentious, it would be possible for me to grant a faculty for the uncontentious works if the Petitioners desired this. If this is desired, it may be able to deal with this aspect of the matter by way of written submissions.”
[Back]
Re St. Matthew Leyburn [2017] ECC Lee 1 The petition contained two proposals for the Grade II Victorian church: a relatively modest re-ordering of the north aisle and related works which (in effect) would enlarge and put on a more durable footing a temporary arrangement effected pursuant to an Archdeacon’s Licence of 23 February 2016; and external resurfacing works including the formation of a car park and various ancillary works. The current proposals comprised the first two phases of a larger project comprising six phases in all.
There was one objector, who chose not to become a party opponent. The Chancellor bore in mind I have borne in mind her age and health issues which may have impaired her concentration and the fluency of her submissions. Furthermore, some of her objections were based upon incorrect assumptions concerning the proposals.
With regard to the car park, Chancellor Hill proceeded along the lines he indicated in paragraph 7.66 Ecclesiastical Law (Third edition, 2007), viz.
“It is considered that if issues are raised with the local planning authority by objectors, such as car parking, access, traffic flow and the effect of proposals on the views and the privacy of neighbouring landowners, and planning permission is nonetheless granted, those matters cannot be re-litigated in the consistory court in the absence of some sound and compelling reason”.
Applying the approach of the Court of Arches in Re St Alkmund Duffield [2013] Fam 158, the Chancellor was satisfied that the works, if implemented, would not result in harm to the significance of the church as a building of special architectural or historic interest [unlike the DAC], and therefore granted a faculty. [Back]
Re St. Lawrence Barton [2017] ECC Bla 3 The Vicar and churchwardens sought permission to re-order the chancel area of the Grade II Victorian church by removing and disposing of the rear choir stalls and replacing them with the front stalls, carrying out some modifications to enlarge the leg-room available, making good any exposed tiles and laying carpet across the widened chancel aisle to match the nave aisle carpet. The object of the proposals was to make the use of the church by the children of the village school more convenient and effective and also increase the possibilities of using the building for concerts and community events.
The Victorian Society objected to the covering of the Minton tiles with carpet, a view supported by the DAC. The Chancellor approved the proposals and granted a faculty, subject to the use of a breathable underlay to the carpet, and “careful repairs” to the Minton tiles by the petitioners using specialist contractors, “not only where required by reason of alterations to the seating, but also where damage has occurred by reason of age or otherwise”. [Back] [Top]
Other building works, including re-roofing
Re Christ Church Charnock Richard [2016] ECC Bla 2 The Petition contained proposals for the complete re-wiring and the installation of new and emergency lighting within the Grade II listed church. Unconditional approval was given by the DAC and the Church Buildings Council was content to defer to the DAC since these proposals as they were likely to have a low impact on the interior of this the church. The Chancellor considered that the proposed works did not fall within rule 9.6 (1) of the FJR 2015 requiring him to seek its advice. Likewise, it was not necessary that special notice of this petition should be given to the Victorian Society. The Chancellor was satisfied that the proposed works would not alter the Grade II church to such an extent as to be likely to affect its character as a building of special architectural or historic interest and he accordingly granted a faculty. [Back] [Top]
Removal and replacement of pews &c
Re St. Mary the Virgin Redcliffe [2017] ECC Bri 1* A Faculty was sought to permit: ‘[the] conversion of the altar table in the Lady Chapel to serve also as a chest of drawers suitable for storage of vestments”. The altar currently is a simple modern wooden table with stretchers joining all four legs a few inches from the ground, and stretchers at the front of the altar and
on the two shorter sides a few inches from the underside of the surface of the altar, photo It was proposed that four oak faced panels would be applied from behind the existing table frames with stretchers to cover the front and ends of the table to ensure that the drawers would not be visible on the infrequent occasions when the altar is stripped.
The Faculty is sought so that certain vestments might be stored which have, hitherto been stored in a cope chest in the Southern Ambulatory, left. These vestments are not in regular use, being heritage items used only rarely.
The Chancellor did not regard the altar in Wells Cathedral as a precedent: the Cathedral is not covered by the jurisdiction of the Consistory Court; in addition, he had seen no order from the Cathedrals Fabric Commission justifying the alteration. He also rejected the Petitioners submission that the decision of St Michael, Uffington and St Stephen’s, Walbrook ‘definitely imply that it is the ‘Eucharistic surface’ which is sacrosanct and not the space beneath, as long as that does not detract from the table being “kept in a sufficient and seemly manner”’.
The Chancellor determined that the conversion of the altar into a chest of drawers would be in breach of Canon F2, which requires that ‘The table, as becomes the table of the Lord, shall be kept in a sufficient and seemly manner …’ He therefore refused to grant a faculty. [Re St. Mary the Virgin Redcliffe [2017] ECC Bri 1] [Back] [Top]
Re St. Mary the Virgin Walsham Willows [2017] ECC SEI 1 The Petitioners proposed to install telecommunications antennae in the Grade I church. Permission was sought to enter into a licence under faculty with Net Coverage Solutions Ltd for a term of 20 years, reviewable every 5 years, in accordance with the draft licence submitted. The cost would be borne by the operator.
The base equipment would be placed within the clock chamber (except for a meter cabinet beside the boundary wall). The louvres in the tower would be removed and replaced with sympathetically coloured glass reinforced plastic louvres to permit the signal to transmit. Specialist legal advice as to the licence and throughout had obtained and expert advice provided by a recognised surveyor. Net Coverage Solutions Ltd, on behalf of Vodaphone/O2 has undertaken to provide the relevant planning authority with the ICNIRP certificate that will certify that the installation complies with the relevant health and safety standards.
The scheme was recommended by the DAC, but almost inevitably, a couple of parishioners objected on the grounds that people could suffer from harmful radiation. They did not wish to become parties opponent and no expert evidence was presented to support their contention. Consequently, the court’s assessment followed the familiar pattern.
Referring to the Court of Arches judgment in Re Emmanuel Church, Bentley [2006] 1 Fam 39, summarized here, the Chancellor pointed out that, where the Government set the permitted levels of radiation as a prerequisite of planning consent, it would be wrong for the consistory courts to apply lower guidelines. Faculty granted. [Top]
Family graves
Re Gravesend Cemetery [2017] ECC Roc 1 A faculty was granted to allow the exhumation of the body of the petitioner’s father, who died in 1992, in order that the body might be cremated and the ashes taken to Italy to be interred with the cremated remains of the petitioner’s mother, who died in 2015, in a family grave in Senerchia Cemetery, Campagnia, near Naples – the village where the petitioners’ parents had been brought up and were married.
Although practising Roman Catholics, the petitioner’s father was buried in the consecrated part of the cemetery. Since 1992: Roman Catholic Church became less hostile to cremation, and the practice became increasingly common among the Roman Catholic community; and the availability of a family grave in Senerchia, Italy became possible through the expansion of the cemetery, and in the already existing Ferrara family plot was capable of being, and was, increased by the acquisition of more land/space. [Back]
Re St. Mary Polstead [2017] ECC SEI 2 The case concerns a “family rift” and the role of the court in ascertaining: who purchased or reserved the burial plot; what was said between the parties; what the clergy should have done in this situation, what they did do and why; and finally, what, if anything, is to be done now.
The cremated remains of a member of the family concerned had recently been interred in her parents’ grave. The interment had been arranged by certain members of the family, who did not discuss the location of the interment with other members of the family, who objected to the last deceased being interred in her parents’ grave, and they applied for a faculty for exhumation. The circumstances were exacerbated by the “unstructured approach” to the request for the interment during an interregnum [27], and a lack of questioning regarding the legal issues involved [28], and the “cavalier approach” to the objections that were raised [29].
The Chancellor ruled that the interment should not have taken place in the parents’ grave without the agreement of all of the next of kin, and accordingly granted a faculty for exhumation and re-interment elsewhere. With regard to costs, the Chancellor was of the view, provisionally, that the Petitioners should not bear any costs for having had to bring these proceedings. He allowed 56 days to see if agreement could be reached through the offices of the Registrar. If not, he would consider special citation under the FJR 2015 to add persons to the proceedings so as consider a costs’ order against one or more of them: the priest and PCC were likely candidates for such a citation. [Re St. Mary Polstead [2017] ECC SEI 2] [Back] [Top]
Re Christ Church, Spitalfields [2017] On 5 February, Chancellor June Rodgers, sitting as Deputy Chancellor in the Consistory Court of the Diocese of London, handed down a 497-page, 167,000-word judgment in the latest round of litigation relating to Christ Church, Spitalfields. [See: Re Christ Church Spitalfields [2015] Court of Arches]. The petitioner sought a confirmatory faculty to authorise the retention of an existing building currently standing in and on the disused graveyard of Christ Church: the “new building” [2]. The objectors, who wished to restore the churchyard as an open space, sought a restoration order to demolish the new building [3]. The building in question had been built at a cost of just under £1.5 million [5].
Rodgers Dep Ch granted a confirmatory faculty and rejected the application for a restoration order [792]. She also granted faculty for a café to be run by Graysons, the PCC’s preferred caterer [793]. [Back]
Re St. Mary West Worlington [2016] ECC Exe 1 The Vicar and Churchwardens sought permission: to install four timber bollards along the boundary of a cobbled approach to the churchyard; and to install an iron gate and fence within the church boundary to prevent entry of livestock. The bollards would prevent parking on a cobbled area between the road and a cottage, through which passed a passage to the churchyard.
The owners of Church Cottage had apparently become accustomed to parking their car on the cobbled steps; the petitioners claimed that the owners of had no right to park a car in that location and regular parking of a car on the cobbled area can only cause damage as well as creating an eyesore. The owner of the cottage objected.
The Chancellor, the Rt Hon Sir Andrew McFarlane, commented [7]:
“It is, unfortunately, all too plain that the issue of car parking on the area of cobbled stones at Church Cottage has greatly exercised each of those individuals who are closely involved in the dispute over a substantial period of time. The papers that I have read include a great deal of detail. It is not, however, necessary in this judgment to describe those matters at any length, or indeed at all”.
In summary, he stated [emphasis added]:
“[22] …from the ordinary perspective of the Faculty jurisdiction, this application is unremarkable and one that is likely to be granted and the only objector does not assert that the installation would be contrary to any legal or equitable right that she may have as owner of the cottage. In the circumstances I am persuaded that the petitioners should be entitled to install bollards as proposed. If they wish to do so, these bollards can be installed on a permanent basis.
Alternatively, again if the petitioners wish to do so, some of the bollards may be installed so that one or more of them could be removed from time to time or for specific purposes or by specific individuals. I stress, once again, that the jurisdiction of this court is “permissive”. By the order that will follow from this judgment I am giving permission for bollards to be installed permanently as requested, but I am not requiring the petitioners to do so. It will be up to them, or their successors, whether this permission is in fact utilised either now or in months or years to come”.
The Chancellor granted a faculty, unusually giving the petitioners a period of 20 years in which to install the bollards, if parking on the cobbled access continues to be a problem. [Back] [Top]
Re St. Wilfrid Standish [2017] ECC Bla 2 The petitioners, who were husband and wife, applied to reserve a double depth grave in the churchyard; although not residents of the parish, they were on the church electoral roll. However, several parishioners objected to the reservation, claiming a widespread view that there had been a policy against reservation of graves agreed by the Parochial Church Council many years ago. Before considering the policy at St Wilfrid’s [13], gave a useful summary of law relating to the categories of people with rights to burial [5 to 10] and that relating to reservation [11, In an observation which was picked up in the media, he commented[17]:
“under Church of England legislation, having your name on the church electoral roll gives the same rights in regard to burial as being resident in the parish. There are no extra ‘Brownie points’ to be gained in this regard by frequency of attendance or other marks of adherence and loyalty. I have to apply that approach, however much that viewpoint may not accord with the objectors’ feelings about the matter”.
From the minutes of the PCC for 17th March 1999 [21], it was clear that whilst there was a policy relating to the burial of persons who did not live in the parish, but it did not cover the reservation of graves. On the subsidiary argument concerning the amount of remaining space, he noted that there is no age limit set down within this diocese (and probably there ought not to be as a matter of general law relating to age discrimination). He said:
“[26] …The younger someone is, the less likely decisions about marriage or a family home, and being settled, have become clear, and that would militate against reservation of a grave space. Also no one in their 30’s or 40’s would generally have a realistic expectation of being granted reservation of a grave space by me, simply on the likely delay before the space will be required. [The Petitioner’s] age of 58 is probably pretty near to the lower limit at which such an application would be likely to succeed in the absence of compelling reasons.
[26] the remaining space is obviously limited, even if a few more spaces might be found with a little effort. Again the point is approaching steadily when the proper approach is to say there is so little remaining room, that applications should all be refused, with death alone indicating who should be buried in any remaining plots. However, that is not in my view quite the position as yet”.
Re St. Mary the Virgin Tutbury [2017] ECC Lic 2 This 11-page judgment concerns the aesthetics of two metal wreath holders near to the war memorial in the churchyard, as perceived by the petitioners – the priest in charge, a churchwarden and the Chairman of the Tutbury War Memorials Preservation Committee – and Historic England and the Parish Council objected. Historic England felt that the proposed structures were not of sufficient aesthetic merit for the churchyard of the Grade I listed church. The Chancellor concluded:
“[30]. I am satisfied that what is proposed here is of an appropriate quality….The wreath holders may very well not be of the high artistic quality which would result from commissioning a top flight designer and saying to such a designer that money is no object. They are nonetheless of an appropriate standard.
That is sufficient to warrant approval in circumstances where the proposed works are part of a continuing programme of improvement. The appearance of the churchyard and in particular of the area around the memorial will be improved by the introduction of the wreath holders because the wreaths will be kept in an orderly manner.
The appearance might not be the same as it would be if there were a bespoke piece of art holding the wreaths but it will be better than if there were to be no wreath holders at all…It may not be as great an improvement as Historic England might have wished but it is an improvement nonetheless and as such is to be welcomed”.
Recent summaries of specific issues that have been considered in the consistory courts include:
Churchyards
- Brexit…and cemetery development, 10 February 2017
General/Miscellaneous
- York Minster constables given police powers, 8 February 2017
[Top]
On August 2016 Bishop’s Disciplinary Tribunal for the Diocese of Europe handed down its decision in the matter of a complaint under the Clergy Discipline Measure 2003: Complainant, The Ven. Jonathan Wilford Lloyd; Respondent, The Rev. Professor James Meredith Day, reviewed here.
The penalty handed down on 24 November has now been published. The Tribunal determined that Prohibition for Life is appropriate as it found “no realistic prospect of rehabilitating Professor Day back into ministry because his conduct was so grave. [It] also find that the lack of remorse or repentance contributes towards [its] decision that only Prohibition for Life is appropriate” [8]. [Back]
Re Waswa – Determination and penalty
Counsel for the Responded formally admitted the Complaint on his behalf: that of conduct 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, while married, the Respondent had an improper relationship from November 2015 to January 2016 with a woman who had contacted him through a dating website and to whom he falsely pretended to be an unmarried fundraiser for Christian Aid.
The Tribunal decided upon the penalty and delivered the same in open Court on 1 February 2017, namely that the Respondent be prohibited from exercising any of the functions of his Orders for a period of 12 (twelve) months form 1 February 2017 and further that he be removed from his Office as Assistant Curate of St John Upper Edmonton with effect from 1 May 2017. Deferring removal of office until May 2017 mitigates the severity of the disruption to the Respondent’s wife and her children by giving time for making arrangements for family adjustment and to find new housing. [Back] [Top]
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.
Navigation
Clicking on “top” will return the view to the groups in the main menu, above; Clicking on “back” will return the view to the sub-headings within each of these groups. “Link to Judgment” is self-explanatory, and “Link to post” is used where there is a stand-alone post on the general issues raised in the judgment.
Citation
As from 1 January 2016, judgments in the ecclesiastical courts have been allocated a neutral citation number under the scheme described in Practice Note No 1 of 2016 and Practice Note No 2 of 2016. In addition, it was necessary to assign a neutral citation for the Diocese of Sodor and Man, here. The Diocese was deliberately excluded from the list of neutral citations in the earlier Practice Directions on citation because it is not part of England.
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With regard to Re St. Mary Polstead [2017] ECC SEI 2, it seems to me a great problem in establishing who is the next of kin ‘responsible’ for a grave when application for further family ashes to be buried there are received. What due diligence would a cleric have to undertake to ascertain family agreement and is this practical in everyday ministry? I speak as someone who gets many such applications per year! So far I seemed to have avoided such issues, Deo Gratias!
Dear Janet. Thank you for your comments on your experience in this area, and pleased that to date you have avoided such issues. As a “non-practitioner”, it seems to me that without written evidence apart from the High Court Order granting letters of administration, even the court had difficulty in determining the basic facts of the case. From the parish point of view, there was also a degree of uncertainty on account of the interregnum.
In terms of due diligence, the critical paragraphs in the judgment are [25] to [27], with the specific issues to be addressed in an interregnum in [28] and [29]. The court commented:
“What does surprise me is that it never entered anyone’s mind that, first, that there was a potential legal question arising as to whether this proposed interment was lawful in the first place… and second, another potential legal question as to whether it was the next of kin … who were the relevant next of kin or whether it was the next of kin of Joyce King or both.”
The involvement of the parish and deanery administrator was a complicating factor, but the problem appears to have arisen as a result of an assumption regarding the advice of the Rural Dean, which was based upon his interpretation of the facts as presented to him.
Sounds like no-one was too sure! Perhaps something that needs clarification and advice for those who have to make these decisions at parish level.
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