Review of the ecclesiastical court judgments during August 2017
The consistory court judgments in August have included:
- Reordering, extensions & other building works
- Audio Visual Equipment
- Exhumation
- Churchyards and burials
This summary also includes links to other posts relating to ecclesiastical law.
Reordering, extensions & other building works
- Substantial reordering
- Reordering and alternative uses
- Other building works, including re-roofing
- Removal and replacement of pews &c
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Re St. Nicholas Great Kimble [2017] ECC Oxf 3 The proposed reordering of the church costing ~£285,000 included inter alia: replacement of wood and tiled flooring; installation of a new heating system, toilet and servery; replacement of pews with upholstered pew benches; and the relocation of the font [2]. The motivation for the proposals was to improve the church for worship, and make it more suitable for shared use by the parish school, which did not have a hall [3].
The DAC recommended the proposals for approval by the court, noting that the work would be likely to affect the as a building of special architectural or historic interest. The Church Buildings Council supported the proposed shared use of the church building by the school and advised that the impact of the proposed changes would be acceptable in principle. However, it questioned the relocation of the font and advised the retention of some of the existing children’s pew benches.
Whilst agreeing with the proposed new seating it advised on the use of loose cushions rather than upholstered seating [6], (See Chancellor Bullimore’s comments in Re All Saints Higher Walton [2017] ECC Bla 9 on the illogicality of this aspect of the CBC Guidance; also The last word on the “pews vs chairs” debate…). In addition it did not approve of the new location of the font. The Victorian Society objected to the removal of the Victorian tiles and removal of the existing pews, and to the any new benches or chairs being upholstered.
Chancellor McGregor stated that the Victorian Society’s contention that “removal of the pews would amount to a ‘substantial and harmful change to the church’” was “misconceived as a matter of law” [14].
“[16]. The existing pew benches are free-standing pieces of furniture which, although described by the petitioners as being heavy, can nevertheless be moved about. They are neither part of the church building, nor are they fixed to the building”.
He added :”[t]he proposal to remove the existing pew benches is not, as a matter of law, capable of amounting to harm to the significance of the church as a building of special architectural and historic interest” [20]. “The floor is clearly part of the listed building…however it is not mentioned at all in the list description or in The Buildings of England. Furthermore, the view of HE, contained in their letter of 14 March 2014, is that “it is not of sufficient merit to warrant retaining” [21].
Whilst the Chancellor was prepared to accept that the tiles have some value in terms of the significance of the building, but that value seems to be limited. “The view of the Victorian Society overstates their contribution to the significance of the church. While their removal may result in some harm to that significance, it will be (at most) minor” [24].
He further rejected the Victorian Society’s suggestion that school use of the church is not a suitable use, and stated “it is unrealistic – and irrelevant – to argue that a hall facility should be provided by the school itself or by the local education authority. The provision of a hall facility for the school will be a very substantial public benefit to the local community”.
With regard to Canon F 1.2 and the position of the font close to the principal entrance, it has stood in its present position – along the central axis of the church – since at least the nineteenth century when its present plinth was constructed, hence there is a ‘custom to the contrary’. The Chancellor was satisfied that the proposed position in the second bay of the north arcade does provide “as spacious and well-ordered surroundings as possible”.
The Chancellor was satisfied that the benefit of the proposals to the local community outweighed any minor harm to the character of the building and granted a faculty, subject to the new pew benches being non. [Back] [Top]
Re St. Bartholomew Otford [2017] ECC Roc 4 Extensive reordering works were proposed for the Grade I church. Chancellor John Gallagher observed “the starting position is that there are no heritage objections, no problems over funding, and the D.A.C. and Archdeacon support the project” [15]. There were a number of written objections, but none wished to be a party opponent. Bearing in mind the stance of the amenity bodies and of the DAC, he had considerable reservations as to whether the Duffield Guidelines were engaged at all; however, he found that the proposals, if implemented, would not result in harm, or significant harm, to the church as a building of special architectural or historic interest [19].
He stated
“At the heart of the objections is the question of money. To some, the proposals do not represent good use of or value for money, to others a more limited proposal costing less would have been a better option, whilst others feel that the money could or should be spent better elsewhere” [21].
However, citing Chancellor Mark Hill QC in Re St Richard, Aldwick, (Unreported) [2014] Chichester Const Ct, he noted that these issues were not for the consistory court to decide, and rejected, in their entirety, the financial arguments advanced [22]. Faculty granted. [Back] [Top]
Reordering and alternative uses
Re Christ Church Upper Armley [2017] ECC Lee 5 A temporary, minor re-ordering had been granted in 2014 under an archdeacon’s licence, but a petition for the permanent removal of the pulpit was not made within the required time frame [7-13]. The Chancellor noted:
“[12]. …During this period there was culpable neglect in the discharge of the archdeacon’s statutory duty to make proper enquiry using Form 10 (r 8.3(1)) and to take steps to restore the church to the position which existed before the scheme was implemented (r 8.3(3))”….
“[13]. As to the parish’s oversight, I propose no sanction beyond the obloquy of the preceding paragraphs”.
With regard to the first Duffield question, he said:
“[24]. … would the proposals, if implemented, result in harm to the significance of the church as a building of special architectural or historic interest? I struggle to see how it can be said, in the circumstances of this case, that the removal of what is a rather ordinary pulpit, can be said to result in harm to the significance of Christ Church, Upper Armley as identified in the listing statement which I have recited in full above. I consider the evaluation of the Victorian Society somewhat overstated and out of step with the common opinion of the petitioners, the DAC, the Church Buildings Council, Historic England and the inspecting architect. I defer to the predominant latter view”.
Since the answer to the first question is ‘No’, then the ordinary rebuttable presumption in favour of the status quo is applicable; the particular nature of the proposals and the parish’s justification in particular were then considered [25], and the Chancellor found that the PCC’s representations were more than convincing in rebutting the presumption of the continuance of the status quo [28]. Faculty granted. [Back] [Top].
Re Plaxtol Parish Church [2017] ECC Roc 3 There had been a scheme for reordering parts of the Grade II* church, most of which had already been approved by the Chancellor. The only outstanding item was the proposed introduction of carpets to the welcome area in the south-west corner, and to the west end of the nave after the removal of pews. The Diocesan Advisory Committee was of the opinion that carpet was not appropriate for a Grade II* church, “being too domestic in appearance”. Historic England (though it did not wish to be a party opponent) objected that the introduction of carpet would be harmful to the significance of the building. The Chancellor said:
““[11]. …the purpose of having carpet is to enhance ministry and outreach. [The petitioners] want: “to create an environment in church that will be welcoming, comfortable, familiar, even cosy for young families and the elderly. The areas are to be used for children and babies, and midweek for the elderly. The petitioner’s aims are to be applauded”.
[12]. Without in any sense wanting to criticise [the representative of Heritage England], or her views, the fact is that they are personal and subjective. I have not heard evidence from her tested in any way. Having read the petitioners’ evidence and seen the church, I do not accept the criticism”.
[Note: The general guidance of the Church Buildings Council on Historic Floors Guidance Note, produced in conjunction with the SPAB, states:
“Fitted carpet is not recommended as it has an overly domestic feel, quickly becomes tatty, and can cause damage to the floor on which it is laid…It can also fundamentally alter the acoustics of a building”.
This is reflected in the comments of the HE representative, although in the specific case of Plaxtol Parish Church, the carpeting appears to be partial and the use by children and babies, (but not necessarily for the elderly) might benefit from its dampening effect on the acoustics.]
Other building works, including re-roofing
Re St. Mary Bromley (Plaistow) [2017] ECC Roc 5 The incumbent and churchwardens applied for a faculty to authorise works which included the removal and storage of one pair of wooden doors; the reduction in size of the disabled lavatory cubicle, so as to provide more space in the adjacent room which is used as a crèche; the introduction of worktops; associated electrical and drainage works; and relocation of a Belfast sink to the north porch. There were 16 letters of objection, but no parties opponent. The Chancellor was satisfied that, although the guidelines set out in the judgment in Re St. Alkmund Duffield [2013] did not engage in the case of this unlisted Victorian church, the petitioners had made out a good case for the proposed works, and he granted a faculty. [Back] [Top]
Removal and replacement of pews &c
Re All Saints Higher Walton [2017] ECC Bla 9 The petitioners sought permission for changes to the heating system, removal of the side aisle pews and introduction of upholstered chairs to match the chairs in the centre of the nave, which had been authorised in 2015 to replace the nave pews. The Victorian Society objected to more upholstered seating. The Chancellor concluded that, “It would not be reasonable to deny the petitioners more of the same sort of chair”, and granted a faculty. [Link to review] [Further comment in round-up] [Back] [Top]
Re St. Mary and St. Cuthbert Chester-le-Street [2017] ECC Dur 1* The petitioners sought permission for installation of four 50 inch LCD monitors, 24 inch monitor in choir vestry and a 32 inch monitor on a wheeled trolley, plus electronics and wiring. The church is Grade I, and “still remains a place of pilgrimage because of its connections with St Cuthbert”. A separate post on Chancellor Bursell’s judgment in this important case, involving substantial changes to a church of greater than local importance, will be published shortly. [Link to review, t.b.a.] [Back] [Top]
Re St. Peter & St. Paul Bromley [2017] ECC Roc 6 The incumbent, the associate vicar and the churchwarden applied for a faculty for the introduction of an audio-visual system into the Grade II* church. There was one letter of objection, from the assistant organist, who did not wish to be a party opponent. His concern was that the evangelical style of worship of the present vicar and associate priest would result in excessive use of the audio-visual equipment, which “does not fit with the very middle of the road Anglican choral tradition that we have here.” The Chancellor found no merit in the assistant organist’s arguments, and did not feel that they were representative of the views of the members of the church as a whole, and he accordingly granted a faculty. [Back] [Top]
Re South London Crematorium [2017] ECC Swk 8 A petition was sought for the exhumation of the ashes of the petitioner’s mother from the consecrated part of the Garden of Remembrance in the South London Cemetery, where they had been interred since 1993, and their re-interment with the body of the petitioner’s father in Epsom Cemetery. The intention of the family at that time had been that the interment would be temporary, until the petitioner’s father died, when the remains of both parents would be buried together. They had not been informed that the interment had been into consecrated ground, and that a faculty would be needed to authorise the removal of the petitioner’s mother’s remains at a later date. Before he died, the petitioner’s father expressed a wish to be buried, rather than cremated.
The Chancellor observed:
“[6]. This is not a case where a family simply did not know that the ground was consecrated in which the remains of a relative were interred; and where they have subsequently changed their minds about the appropriate arrangements in respect of that interment. Rather they organised the interment positively thinking that there would be no difficulty about subsequent exhumation of the remains”.
In granting the petition, he said [emphasis added]:
“[8]. In these circumstances, it seems to me that a mistake has been made such that it would be appropriate to permit exhumation as an exception to the norm of permanence of Christian burial… I do not require that Mrs Finch’s remains be re-interred in consecrated ground. It is unlikely in the extreme that the occasion would ever arise in the future for any further exhumation but, in any event, I do not think that it would be appropriate in the circumstances for me to require Mrs Finch’s remains to remain subject to the control of the Consistory Court. Similarly in Re Blagdon Cemetery [2002] Fam 299, the Court of Arches did not impose a requirement that remains which the court permitted to be exhumed should be re-interred in consecrated ground.
Re Greatness Park Cemetery Sevenoaks [2017] ECC Roc 8 The petitioners applied for a faculty to authorise the exhumation of their father’s ashes and re-interment in the plot containing the ashes of their mother. The father had died in 2006. His ashes had been buried in the cemetery and a memorial placed over the plot. Space was left for the name of the mother on the memorial. When the mother died in 2017, it was discovered that the father’s ashes had been buried only two feet deep, so it was not possible to inter a further casket of ashes in the same plot. The petitioners therefore had their mother’s ashes buried at double depth in a nearby plot and applied for a faculty to move their father’s ashes to the same plot. The Chancellor decided that this was a case where he could exercise his discretion in allowing exhumation and re-interment, on the basis that the burial authority had made a mistake by failing to make it clear that a further burial in the first plot would not be possible. [Back] [Top]
Re St. Werburgh Hoo [2017] ECC Roc 7 The incumbent and churchwardens applied for a faculty to approve a local variation of the Churchyard Regulations which would permit the introduction of memorials with stone surrounds. Over a number of years, memorials have been erected in accordance with the Guidelines, but subsequently, surrounds “of varying quality” sourced from the local nursery have been added.
The proposed scheme was at the suggestion of Chancellor Gallagher. The DAC made no objections to the proposals, subject to some rewording, and draft scheme was agreed unanimously by the PCC [2, 4]. The Chancellor identified the basis for having Churchyard Regulation: theological, practical and aesthetic [5 to 7], and to enable better management of the churchyard. He was satisfied that it was appropriate to approve the proposed local set of regulations, which were to be redrafted to include the DAC recommendations, and include a requirement for families to sign a notice confirming that they would comply with the Regulations [Back] [Top]
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions & other building works
- The last word on the “pews vs chairs” debate…?, 15th August 2017
- Use of church buildings: update of “toolkit”, 18th August 2017
Churchyards
- Reuse of graves – further considerations, 9th August 2017
General/Miscellaneous
- Telecommunications equipment in listed places of worship: advice from Historic England, 4 September 2017
- Consistory court evidence or “Call My Bluff”: Episode 1, 31st August 2017
- Historic England’s advice on metal theft and its aftermath, 13th July 2017
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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
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. [Clicking on the citation will link to the L&RUK summary of the case]. “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 of judgments
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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