Ecclesiastical court judgments – December

Review of the ecclesiastical court judgments during December 2017

Attached are summaries to consistory court judgments published in December. Additional judgments for December will be posted with those for January 2018. 

This summary also includes links to other posts relating to ecclesiastical law.


Reordering, extensions & other building works

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Reordering and alternative uses

Re St. Thomas Werneth [2017] ECC Man 1 Proposed reordering works included re-ordering the replacement of the current heating system, the replacement of the pews with chairs, the installation of new flooring, the installation of a new kitchen and disabled toilet facilities, the improvement of access for those in wheelchairs and the converting of the warden`s pews at the back of the nave into cupboards. The purpose of the re-ordering of the Church was to open up the Church for community use, as part of its outreach to the mainly Muslim community in the parish. The Chancellor was satisfied that the reordering would be a major public benefit outweighing any harm resulting from it. [Back] [Top]

Other building works, including re-roofing

Re St. Philip and St. James Whittington[2017] Ecc Wor 1 The petitioners sought to construct a new extension to the north of the west end of the church, which would provide a meeting room, an accessible toilet, a store, and a kitchen. These facilities are currently located in a Portacabin in the churchyard: erected in 2002; authorized on a temporary basis by faculty and planning permission; initially granted in March 2002; and subject to subsequent renewals. However, the planning authority has made it absolutely clear that after May 2018 the Portacabin must be removed [8 to 14].

The proposal that is the subject of the present faculty petition is for the construction of a new extension to the north of the west end of the church, “carefully designed so as to minimise its impact on the veteran yew tree to the north-east” [15 to 36].

In assessing the reports produced on behalf of the CBC and the Parish as to the possible co-existence of the yew and the proposed extension, the Chancellor drew up a list of key issues to be considered, which “echoes the list of questions posed by the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158, but takes into account the particular circumstances of possible harm to a neighbouring building, or to a significant tree, rather than just the normal situation of harm being caused to the significance of the church building itself [39]. The decision turned on the impact of the proposed extension on the veteran yew tree, i.e. about 500 to 1200 years old.

The Chancellor considered that the proposed new building will be a significant improvement over those now available in the Portacabin, albeit largely for church purposes [72]; the parish had demonstrated the need for new facilities of some sort; and the new building would cause only modest harm to the church [79]. However, he was unwilling to grant a faculty: “It seems to me that the total loss of an ancient or veteran yew … is equivalent to serious harm to a grade I or II* building, and should only be exceptionally allowed.  In the present case, I accept that it is by no means certain that the new building will cause the loss of the yew, but I consider that the risk of its loss, and the harm that would result if it were to be lost, are sufficiently great that they are not justified by the benefit that would undoubtedly arise from the new building”. Faculty denied.

Footnote

Readers will probably appreciate the irony of the following:

“[2]. A number of pews were removed from the front and the back of the church in 1997, to provide greater flexibility in those areas. As a result, the church now has limited seating capacity…”

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Re Holy Trinity Poynings [2017] ECC Chi 3 The petition related to the south transept of the Grade I church and the installation of underfloor heating beneath a new stone floor; the provision of a discreet tea point; and the introduction of heritage boards. The historic memorial slabs laid into the floor would be left in situ, but covered by the heating elements and the new floor. The Society for the Protection of Ancient Buildings (SPAB) entered an objection and became a party opponent. Applying Re Duffield, the Chancellor concluded that the harm would be considerable, and justification for the proposals relating to the heating was neither clear nor convincing, and were unlikely to achieve what the parish requirements of heating the whole church which is ‘intolerably cold’ for several months of the year. The proposed underfloor heating in the south transept would only provide a partial solution, and one which would be largely compromised due to the inability to isolate the south transept as a sealed environment. Faculty dismissed. Although, contrary to the petitioners’ suggestion, the Chancellor struggled to identify any standalone element which can survive the dismissal petition, which was specific and holistic, he suggested how the petitioners might proceed, particularly in relation to the use of a raised wooden floor, an option they had dismissed. [Post] [Back] [Top]

Re London St. Augustine Watling Street [2017] ECC Lon 2 The bursar and clerk to the governors of St Paul’s Cathedral School, acting on behalf of the Chapter of St Paul’s Cathedral, and the Archdeacon of London sought a faculty for the construction of a new boarding house for St. Paul’s Cathedral School on the footprint of the former church St Augustine Watling Street (the body of which was destroyed by bombing in 1941), whilst retaining the Grade 1 listed Wren tower of the former church [1]. Prior to the submission of the petition, the proposals had undergone the applications procedure under the Care of Cathedrals Measure which applies to the cathedral itself. The site in question, however, is not part of the cathedral or within its curtilage, because historically it was the church of the separate parish of St Augustine Watling Street, which is now within the parish of St Mary-le-Bow, Cheapside [2].

Historic England stated:

“[5]. ’The proposals will impact on the historical value of St Augustine’s Tower as a monument to the Blitz by removing its powerful stand-alone presence… The harm identified… requires clear and convincing justification and needs to be weighed against the benefits the scheme will deliver.’ However, having applied the guidance in the National Planning Policy Framework 2012, [HE] concluded that “minor ‘less than substantial’ harm to the value of St Augustine’s Tower would be outweighed by public benefits.”

Notwithstanding an objection from the Twentieth Century Society that the proposals would cause substantial harm and that this would not be outweighed by substantial public benefits, the Chancellor granted a faculty. [Back] [Top]

Christ Church Spitalfields and the Garden Building judgment

Following a Consistory Court hearing in the summer of 2016 regarding Christ Church Spitalfields’ Garden Building, the judgment was finalised in March 2017 by Chancellor June Rodgers as Deputy Chancellor of the Diocese of London. The judgment was updated in December 2017 upon hearing representations from parties opponent and from objectors

The materials concerning Re Christ Church, Spitalfields are available on the London diocese web siteSpitalfields Judgment all 3 parts 17th December 2018 FINAL as published: paras 1-811, handed down 12th March 2017; paras 812-851, dated 22nd November 017; and paras 813-859 dated 17th December 2017; Spitalfields Order Plan with 17 Dec 17 Order. [Back] [Top]

Removal and replacement of pews &c

Re St Peter’s Drayton [2017] ECC Oxf 4 A petition was sought for the removal of four rows of pews in the west end of the building, two of which are “substantially medieval” and others are Victorian. Pews on the south side of the west end were removed some years ago in order to provide a more flexible space, and the petitioners now seek to extend that by also removing those on the north side of the west end in order to allow greater use of the space by community groups in the village. The Chancellor granted a faculty to allow the removal of the pews as requested with the exception of one medieval pew and frontal.

Concluding his seven-page judgment, the Chancellor commented [emphasis added]:

“[37]. …I am bound to say that this should and could have been dealt with far more quickly since presentation of the petition if it had been better prepared. It is difficult to work out what a parish would like to achieve in this kind of case without a plan, and directions are not given to make life more difficult for petitioners, but rather so that the court can understand what it is being asked to do.

[38]. The faculty system does not exist simply to rubber stamp PCC proposals. Indeed, to do so would be a dereliction of duty. I have to form a view for the sake of both the current generation and future generations as to whether a proposal gets the right balance between protecting our shared heritage and furthering the mission of the church. In this case it has taken some time to obtain the necessary information and particulars from the petitioners in order to be able to make that judgment. It is important that petitioners realise that these are formal proceedings, much as I know everyone tries their utmost to help those involved.”

[Link to judgment] [Back] [Top]

Re Bath Abbey [2017] ECC B&W 1 Following a two-day consistory court hearing in October, the Chancellor of the Diocese of Bath and Wells has granted permission for the permanent removal of the pews from the nave of Bath Abbey and their replacement with chairs in the main body of the church once the historic floor has been repaired, Re: The Church of Saint Peter and Saint Paul, Bath (Bath Abbey) [2017] ECC B&Wl. Replacement of the pews is a vital component of the Abbey’s Footprint Project, a £19.3 million programme of capital works and interpretation which will provide innovative and sustainable solutions to the community’s needs.

The petition was opposed by the Victorian Society, which argued that the Abbey’s plans for the permanent removal the nave pews, a major element of Sir George Gilbert Scott’s reordering of the church in the mid nineteenth century, were unnecessary and would harm the significance of this listed building.

Of relevance to this and future high-profile reordering cases was the Chancellor’s rejection of the results of the Victorian Society’s on-line petition, for although admissible, little evidential weight could be attached to it: many respondees had no proper (legal) interest in the proceedings; and the invitation to respond was couched in terms which did not engender an objective response [26].

After applying the guidelines in Re St Alkmund, Duffield [2013] Fam 158, as further considered in Re St John the Baptist Penshurst [2015] Court of Arches (Rochester), Chancellor Timothy Briden concluded:

“[62]. In my judgment the balance falls firmly in favour of granting the order sought by the Petitioners, even after the listing of Bath Abbey and the strong presumption against change are properly brought into account. Bath Abbey is in many respects an exceptional building. Even if, contrary to my findings, the disposal of the nave pews were to be viewed as causing serious harm, the exceptional set of circumstances relied on by the Petitioners (including a significant element of heritage benefit) would have satisfied the “Duffield” criteria and justified the proposed change”.[Link to post] [Back] [Top]


Audio Visual Equipment

Re St. John the Evangelist Ladywood [2017] ECC Bir 3 The vicar and churchwardens sought a faculty for the installation of a new audio-visual system in the church. Historic England suggested that a more adaptable and less permanent solution scheme should be adopted, given that “the ever improving nature of audio-visual technology will also mean that these proposed screens will likely need to be replaced in a relatively short period of time”. The Chancellor saw no reason to make the petitioners delay the installation of a new system pending new technology and he granted a faculty.  [Top]


Churchyards and burial

Churchyard Regulations and memorials

Re Christ Church South Ossett [2017] ECC Lee 6 The incumbent sought a restitution order under r 16.2 of the Faculty Jurisdiction Rules 2015 for the “removal of an illegal monument from the churchyard”. The Respondent was the stonemason, who was subcontracted by a firm of funeral directors, and the error arose as a result of the communications between the stonemason and his “fixer”. The exact facts of the case are uncertain:

“[4]. The respondent then set about trying to establish what had occurred, triangulating between the funeral director, the monumental mason (subsequently identified as the respondent) and the Registry. Even now the applicant is far from satisfied that she has established the true facts”.

The Chancellor commented:

“[7]. Like the applicant, I am not convinced that the whole truth has yet emerged. However, the acceptance of responsibility by the respondent and his apology to the applicant is such that I do not consider it productive to investigate further. I trust a similar apology, in a medium more appropriate than an email, has been sent to the family concerned.

[8]. Memorial masons need to appreciate the enormous distress that their mistakes can cause: see, in the context of local authority cemeteries, Re Welton Road Cemetery, Daventry [2017] ECC Pet 2. It is foolhardy and reprehensible to proceed solely on the basis of instructions spoken over the telephone. It is a recipe for confusion, error and serious pastoral harm, as has occurred here. The applicant’s conduct in this matter has been the exemplar of best clerical practice. That of the respondent shows a distinct lack of care and I trust the respondent’s processes and staff training will be reviewed and improved as a matter of urgency”.

The restoration order was granted. [Back] [Top]

Re St. George Chorley [2017] ECC Bla 12 The widow of a former priest who died in office sought permission for her husband’s ashes to be interred within church building and to erect a white marble memorial plaque above the casket [1]. The Chancellor stated “his death whilst in the service of the parish church as its vicar, and the affection and respect in which he is clearly held, amply satisfy the test applicable to the introduction of a memorial plaque into a church as set out [as in] Re St Margaret’s Eartham [1981] 1 WLR 1129”.

With regard to the proposed interment, the Deputy Chancellor noted that paragraph 13.7.6. of Charles Mynors: Changing Churches (1st edn, 2016) stated “there is no legal bar to a faculty being granted for the disposal of cremated remains beneath the floor of a church; but that such proposals are only rarely permitted, generally in the case of a former vicar, and not always even then”. Mynors cites Re St Peter’s Folkestone [1982] 1 WLR 1283 and In Re Warner, Re All Saints, Stand (2007) 10 Ecc LJ 250; in both cases, the petitions for the interment of the remains of former priests were refused, but both of these authorities are clearly distinguishable [4].

In the instant case, the PCC’s resolution addressed the “precedent point”, making it clear that the interment of cremated remains will only apply to incumbents who die whilst still in office at the church [5]. Applying Re St Alkmund, Duffield [2013] Fam 158, as augmented by that Court’s later decisions in Re St John the Baptist, Penshurst [2015] PTSR D40, 17 Ecc LJ 393, and Re St Peter, Shipton Bellinger [2016] Fam 193, the Chancellor was satisfied that the proposals, if implemented, would result in no harm whatsoever to the significance of the church as a building of special architectural or historic interest. Faculty granted.
[Re St. George Chorley [2017] ECC Bla 12] [Back] [Top]

Re All Saints Bransgore with Thorney Hill [2017] ECC Win 3  The Chancellor considered two applications for faculties for proposed memorials, both of black polished stone with kerbs; one design incorporated a painted scene of a fisherman against a sunset, and the other featured a stained glass insert with a design of an angel. The applications were supported by the PCC, but the Diocesan Advisory Committee recommended both be refused. The judgment includes a consideration the legal principles when assessing applications of this nature, which fall outside the terms of the churchyard regulations [6 to 25].

Chancellor Ormondroyd observed “the decisions of my fellow Chancellors in this area display marked differences of approach” [7]; this was illustrated by reference to two recent decisions: that of HHJ Eyre QC Ch in Re Church Lawford: St Peter [2016] ECC Cov 3, and that of the worshipful Mark Hill QC in Re St John the Baptist, Adel [2016] ECC Lee 6. On this divergence of view as to the approach to be taken to applications for memorials outside the terms of the regulations he questioned: is there a presumption against such applications which can only be overcome by showing “powerful reasons”?; or is the court simply to apply the normal burden of proof applicable in faculty proceedings? [13]. However, he concluded “it would seem that to this extent the practice in Winchester diocese is consistent with both of the divergent views set out above” [17].

In his consideration of the two petitions [26 to 40], the Chancellor noted:

“[30]. …The [undisputed] divergence [from the Diocesan Churchyard Regulations] is large and extends to the proposed materials…general design…and decoration…The regulations indicate that such features are generally inappropriate in churchyards within this diocese. I therefore ask myself whether the Petitioners have shown any good reason why, notwithstanding the divergence from the regulations, these petitions should be granted”,

and concluded:

“[37]. It seems to me that a line does have to be drawn, and I will draw it here and now by refusing these petitions. I have found a departure from the regulations, plus harm to the churchyard and the setting of the listed church, and have not found any good reason to grant the petitions despite that harm”.

The Chancellor refused to grant both faculties. He determined that the proposed designs would be harmful both to the character of the churchyard, and to the contribution it makes to the setting of the Grade I listed church. [Note revised neutral citation, ECC WIN 3, not ECC WIN 2] [Back] [Top]

Re St. James Uldale [2017] ECC Car 1 In this 7-page judgment, the Chancellor addressed whether an inscription including the word “Pop” (in the context “Dad and Pop”) should be allowed on a memorial in the churchyard. In the absence of the incumbent, matters were muddled by the Team Vicar who held an impromptu meeting after a service, to canvas opinion of the congregation there present.

The Chancellor determined that, whilst generally the word “Pop” would be inadmissible, on primarily pastoral grounds he permitted the word to be used on the proposed memorial and other future memorials in this particular churchyard; however, it was not appropriate that it should be used elsewhere in the diocese. [Back] [Top]

Re Foxley Churchyard [2017] ECC Bri 3 The Chancellor refused to permit on a headstone a design of two intersecting triangles and a ’12 spoked Dharmachakra‘, an Indian religious symbol, as he could not see in the design anything consistent with the three general principles of honouring the dead, comforting the living, and informing posterity, nor was there anything in the design to indicate the Christian hope of resurrection. [Back] [Top]


Organs

Re Christ Church Fulwood [2017] ECC She 6 The Chancellor granted a faculty for the creation of a courtyard in the churchyard, between the church and the road in order to provide better access and a circulation area; and the replacement of the pipe organ, subject to conditions, with an electronic instrument. This would create more space for the congregation seated in the gallery and make the seating in the gallery more useable. At present those sitting there are “overwhelmed by the organ, both by its size and by its sound” [18]. Some of the Sunday services at the church are packed out and all the seating around the existing organ in its present location is used

The DAC recommend the proposal for the removal and replacement of the organ subject to six provisos, which the petitioners have since agreed. The Chancellor noted [11] that the DAC reasoning in respect of its decision as to the organ was rather more finely balanced than that in respect of the churchyard works. “The balance appears to have been tipped by the following consideration set out in their reasons:

“There is concern that were it to be compelled to retain the organ the church may not make the best use of it and may not consider the cost for its upkeep an expense they would choose to meet”.

In a letter of 19th November 2014, the Church Building Council expressed strong reservations about the reordering of the east end of the nave and said of the proposal to remove the organ: It is also uncomfortable with the proposal to remove the pipe organ to replace it with an electronic instrument. Plans to partition off the chancel and the east end which are in the proposals for the next scheme of works and did not fall for the Chancellor’s consideration in the instant petition [22]. Likewise, planned link between church and parish centre, which was disapproved of by the Victorian Society, was not a component for current consideration [23].

Christ Church Fulwood is listed Grade II and has an average Sunday attendance over four services of 887. The proposed works included the creation of a courtyard in the churchyard, between the church and the road; this affects 166 graves, 90 of which have been used or visited during the last 100 years; 66 of the 90 have not been visited since 1970. The proposal for the new courtyard was opposed by a married couple, as there were some old family graves in the area affected by the proposal.

The Chancellor noted [31] “to the extent that the courtyard proposals do result in Duffield type harm, I have come to a firm conclusion that there are clear and convincing reasons which enable me (subject to her consideration of the opposition of the objectors) to permit them. With regard to the organ, she concluded that its removal would cause minimal harm to the significance of the church as a building of special architectural or historic interest [35]. However,

“[36]. That application of the Duffield test to the organ is not the end of the matter because I cannot and should not ignore the fact that the instrument stands in its own right as a church treasure of considerable value both historically and musically (not to mention financially). I would not consider it appropriate to permit its removal from its present location unless or until it could be removed to another church in the Diocese of Sheffield where it will be played, appreciated and maintained.

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Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

General/Miscellaneous


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 2015 and Practice Note No 1 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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Cite this article as: David Pocklington, "Ecclesiastical court judgments – December" in Law & Religion UK, 16 January 2018, https://lawandreligionuk.com/2018/01/16/ecclesiastical-court-judgments-december-2/

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