Review of the ecclesiastical court judgments during May 2018,
May ‘s consistory court judgments have included
This summary also includes links to other posts relating to ecclesiastical law.
Reordering, extensions & other building works
Reordering and alternative uses
Re St. Nicholas Codsall  ECC Lic 1 The petitioners was brought by the churchwardens and the chairperson of the church’s building committee; it was presented in the prospect of the imminent departure of the current incumbent. In these circumstances it was particularly important to record that the petitioners had the approval and support of the Parochial Church Council, albeit with one abstention in relation to the proposed alterations to the tower, infra.
There were two distinct aspects to the petition for reordering: the relatively uncontentious introduction of radiators and additional carpeting, to make the chancel more comfortable on the occasions when it is used, i.e. for daily prayer and for fortnightly coffee mornings; and the creation of a new bell-ringing floor in the tower which would facilitate the introduction of a disabled toilet and kitchen at the base of the tower. Other minor changes were the movement of the altar rail and the electrification of the church clock.
The new bell-ringing platform would be a in different position from one used until the 1950s one; it would also be smaller and, importantly, would be accessed through a trapdoor rather than a doorway as had been the case in the past. It was acknowledged that the proposed trapdoor route would prevent or impair access for elderly or disabled bellringers; the petitioners regretted this aspect of the reordering but explained that there was no other practicable location for an accessible toilet than at the base of the tower . Unsurprisingly, there were letters of objection from two bell-ringers in respect of this item. The Chancellor commented:
“. The relative importance to be attached to facilities for the disabled and to
arrangements for bellringing in the life of a particular church is very much a matter for the local judgment of the incumbent and the Parochial Church Council of that church. It is the incumbent who has the cure of souls and the wardens and Church Council are the elected representatives of the worshipping community. They are far better placed than the Court to assess the extent to which an adverse impact on bellringing (or any other part of the life of the church) is justified in order to meet a different need”.
. The impact on those engaged in bellringing of what is proposed is to be regretted particularly given that the proposed arrangements are likely to inconvenience most greatly those bellringers who are disabled or elderly. Nonetheless, that impact cannot warrant refusal of permission for proposals which are otherwise justified and which the churchwardens and the Parochial Church Council seek in order to further mission of the church and to provide for those attending the church who are disabled”.
On this basis, the Chancellor decided that any impact on the bell-ringers should not outweigh the benefits of providing appropriate toilet and refreshment facilities. He accordingly granted a faculty. [Re St. Nicholas Codsall  ECC Lic 1] [Back] [Top]
Re Holy Trinity Long Itchington  ECC Cov 3 In 2016 the Chancellor granted a faculty for reordering works including the replacement of the pews with chairs. In this judgment, Re Holy Trinity, Long Itchington  ECC Cov 7, he declined to approve upholstered chairs, although the introduction of un-upholstered chairs would be permitted. Following much research and consultation, the petitioners now sought an amendment of the 2016 faculty to authorise a different type of upholstered chair with upholstered seats and upholstered back pads within a wooden frame. After reviewing the options available and the opinions of a number of interested parties, the Chancellor concluded:
“as the chairs are to have wooden frames and those frames are to have a dark stain applied to them, the additional visual impact of upholstered back pad, though real, will be modest. That additional impact is outweighed by the benefits to be obtained and by the fact that such chairs are the clear preference of the worshipping community after what I accept has been careful consideration of the alternatives.”
He therefore directed that the faculty granted in 2016 be amended accordingly. [Link to post] [Back] [Top]
Removal and replacement of pews &c
Re St. Lawrence Gnosall  ECC Lic 3 The Chancellor granted permission for the removal of two rows of Victorian pews; he noted that the Grade I church would remain predominantly pewed and any harm to its special significance would be modest and would be outweighed by the potential benefits. The matters raised by the sole objector, who was not a party opponent, did not operate to warrant a refusal of the faculty sought.
The matters raised as grounds for objecting to the proposed works “are very much issues in respect of which the Consistory Court will give considerable weight to the views of the churchwardens and the Parochial Church Council as the elected representatives of the worshipping community” . In this particular case:
- the removal of two pews will not mean that there is insufficient pewed seating on most occasions ;
- it is not inappropriate for activities such as “Messy Church” or the provision of meals for the elderly or activities for children and their parents to take place in a church building. The argument put forward to the effect that the church building should be used for worship with outreach activities taking place in the community is not an illegitimate argument; however, it is also not the only permissible view ; and
- as to the use of church funds for this work, it has been the consistent position of the Consistory Courts that matters of judgement as to the use of church funds are questions for the elected representatives of the church community and not for the court save in the most exceptional of cases .
Although raised by a single parishioner, it is not uncommon for the last two points to be cited by objectors. [Back] [Top]
In the Matter of Sydney Clement Levy (Deceased)  ECC New 1 This case. concerning a waterlogged burial vault. was described by Chancellor Euan Duffas as “quite different from any petition for an exhumation which I have encountered before” .
Whilst he was alive, the family of Sydney Clement Levy (“the deceased”) purchased three grave plots in St Andrews’ Cemetery in Jesmond, Newcastle upon Tyne and arranged for the construction of a vaulted chamber in which he and other members of the family would be interred. On the day of the funeral of the deceased, it was discovered that there had been an ingress of water into the vault; a long-term solution was impracticable at that time, and the funeral proceed after the water had been bailed from the vault and the casket sealed to prevent damage .
Prior to seeking the faculty, the petitioner – the son of the deceased – had commissioned investigative works and it was ascertained that the lower portion of the vault was flooded and that the casket of the deceased was within that flooded area. Arrangements had been agreed with a firm of monumental masons who were not involved in the original work, an undertaker and the burial authority – Newcastle City Council – regarding the necessary remedial work .
By the time of the petition, in November 2017, there was a degree of urgency in relation on account of the condition of the petitioner’s mother, and having ascertained the appropriate measure were in place vis-à-vis the vault, and that this was a wholly proper and appropriate application, the Chancellor determined that it would be proper to grant a faculty and issued Directions . He noted:
“. …[it] arose not from a mistake being made or from any change of mind on the part of the family of the deceased but, on the contrary, from a desire to achieve what had always been intended in the creation of a family vault and the respectful interment of the caskets and remains of family members. Any refusal to grant a faculty would have resulted in the casket of the late Mr Levy remaining immersed in water and have prevented the interment of any other family member within the vault”. [Back] [Top]
Re Stile Cop Cemetery  ECC Lic 2* The petitioner sought to have the cremated remains of his father exhumed from one plot in the cemetery and reinterred in another plot with the cremated remains of his recently deceased mother. The reasons given were: (1) the petitioner’s father’s burial plot was close to next to the main thoroughfare of the cemetery; (2) there was no convenient seat at which to sit and reflect; and (3) the plot was next to a gully cover. Whilst satisfied that the petitioner genuinely found the location of the plot unsuitable, but the Chancellor could not find any exceptional reason to justify exhumation. Furthermore, he commented:
“[16)]. …that even if the circumstances here had been exceptional such as to be potentially capable of justifying exhumation I would have had considerable
reservations as to whether that was an appropriate course given the undertakers’ comments about the potential condition of the casket containing [the deceased’s] remains. It may very well be that it would not have been possible to effect the exhumation in a seemly manner and that would, of itself, have been a ground for refusal of the application”. [Back] [Top]
Re St. Wilfrid Standish  ECC Bla 2* The petitioner wished to have the remains of her father (“the deceased”) exhumed from the grave immediately next to the grave of his second wife and reinterred in the grave of the deceased’s first wife, which grave also contained the remains of the deceased’s parents, in order that a new memorial bearing the names of all four members of the Standish family could then be put on the grave.
Reviewing the guidance in Re Blagdon Cemetery  Fam 299, the Chancellor stated the circumstances were not the result of a mistake: the idea that the deceased believed he would be buried with his first wife was difficult to accept, noting “[h]e seems to have believed that her grave was full, and next, he was a partner in a longstanding second marriage. He expressed no wishes about where he was to be interred in his will” . There was “pays insufficient attention to the history” to assert that the burial would be in a family grave: “there is nothing in the circumstances ..that even begins to indicate that second marriage ought to be subordinated to the first, so it would be right to proceed with an exhumation of [the deceased’s] remains” . Finally, despite the passage of time (25 years), there was no explanation given to explain why the application was not launched many years ago” .
The Chancellor therefore concluded held that there were no special circumstances which would justify the grant of a faculty. [Back] [Top]
Re St. Mary Offton  ECC SEI 2 Chancellor David Etherington, QC, sets out the outline of his judgment in paragraph 1:
“Paragraphs 1 to 6 are concerned with preliminary observations. Paragraphs 7 to 21 set out the general issues that surround any application for inscriptions on both sides of a memorial in this diocese. Paragraphs 22 to 34 review the materials and issues before me on the facts of this particular case and paragraphs and 35 to 39 give my decision”.
The petitioner wished to have inscriptions on both sides of a memorial headstone on the grave of her late son which was not permitted by the Diocesan Churchyard Regulations. The Chancellor noted:
“. The effect of prohibition (express or implied) under the Rules is that the authority delegated to the incumbent or Priest-in-Charge to permit, if approved, headstones within the Rules will not apply and permission to do the thing prohibited by the Rules will need to be sought by a petition for a Faculty from the Chancellor.”
With regard to the general issues raised, he quoted the Worshipful Mark Hill QC’s on the purpose of a headstone:
“A headstone is a public statement about the person who is being commemorated. Making the right choice of stone, design and inscription is important not only to the relatives or friends who are going to provide the memorial, but also to the wider community because of the effect which the headstone may have upon the appearance of the churchyard.”
He noted that whilst this diocese and the diocese of Exeter are unusual in specifically prohibiting without permission inscriptions on both sides of the headstone, it was his view that the restriction of inscriptions to one side of the headstone (other than Mason’s Marks) unless permitted by the Chancellor (or in some cases the Archdeacon) can readily be inferred from the rules in other dioceses . Furthermore, “bad practice in the past cannot dictate good practice in the present and future. If that were the case the Rules would be pointless”. However, the Chancellor considered that there were sufficient exceptional circumstances to allow the general prohibition on inscriptions on both sides of a memorial to be relaxed in this case. [Re St. Mary Offton  ECC SEI 2] [Back] [Top]
Re St. James the Less Fradswell  ECC Lic 4 Whilst the proposed wording on the memorial was “wholly unexceptionable” , a faculty was sought as there were “a number of respects in which the memorial goes beyond the limits placed on those which can be authorised by incumbents under the Churchyard Regulations”. In addition to the material and lettering, alongside the rectangular upright stone and connected it, there was to be an upright column extending a little higher than the stone and bearing for almost its full height the image of a cross with a rose entwined around it .
The DAC advised that it does not recommend approval of this petition as it fell too far outside the Churchyard Regulations ; however, the incumbent and PCC raised no objections . The Chancellor, HH Stephen Eyre QC, stated :
“. I previously set out the approach to be taken when considering the relevance of the presence of a number of memorials outside the scope of the Regulations in my judgment in St James, Newchapel (Lichfield 2012). I there made reference to the judgment of Mynors Ch in Re St Mary: Kingswinford  1 WLR 927. More recently I set out my understanding of the applicable principles at rather greater length in St Leonard: Birdingbury  Ecc Cov 1.
Quoting from St James, Newchapel [at 26] he said:
“. …“Particular issues arise in cases where there are already a number of non-conforming memorials in a churchyard. The mere fact that non-conforming memorials have been allowed in the past or have been erected without faculty is clearly not of itself a justification for a further inappropriate memorial. However, there will be occasions when the extent of previous non-compliance with the Regulations will be relevant…In my judgment the proper approach is to take account of the number, type, and appearance of non-conforming memorials in relation to the size and appearance of the churchyard taken as a whole.”
On this basis, he was satisfied that this is a case where there are such a number of memorials falling outside the scope of the Churchyard Regulations that it is unrealistic to believe that the churchyard can be restored to a harmonious appearance . The petitioner’s desire to commemorate her husband’s interest in gardening and to mark their fifty years of marriage is entirely understandable. In view of these circumstances, a faculty was granted. [Back] [Top]
Re St. Peter & St. Paul Nutfield  ECC Swk 1 The petitioner wished to place a memorial tablet of Welsh Slate, measuring 8 inches by 11 inches by 2 inches in the churchyard, next to a tree which her father had planted after the Great Storm of 1987. She wished the inscription to bear the names of her mother and Welsh father, with dates of birth and death and the Welsh word ‘Tangnefedd’, an old Welsh word meaning ‘Peace’. Her father’s ashes had been buried close to the tree, but the body of her mother, who did not wish to be cremated, had been buried in a nearby woodland cemetery, with no memorial. Owing to the father’s connection with Wales, the Deputy Chancellor approved the use of the Welsh word in the inscription. And as regards the mother’s body not being buried in the churchyard, the Deputy Chancellor approved the inscription bearing the mother’s name, provided that the words ‘Margaret buried in Nutfield Cemetery. Gadfan interred at this spot.’ were added to the edge of the stone. [Back] [Top]
Re All Saints Findern  ECC Der 1 The original petition sought permission to sell the organ located in the church tower, and to use the space presently occupied by the organ to provide for kitchen and toilet facilities. However, on the advice of the DAC, the present petition relates to removal of the organ alone, rather than the full scheme.
The organ was installed shortly after the church had been built in the 19th century, and was located within the base of the tower:
“. …It is not used at present, and has not been used as part of the worshipping life of the congregation for some years, although it continues to be tuned twice a year. There is no regular organist available, and for weddings and funerals an organist is sought with the assistance of the diocese. Sunday services are accompanied by a keyboard or by means of ‘recorded’ music. The petitioners wish to remove the instrument and dispose of it through the Institute of British Organs, so it can find a home where it can be treasured and used to its potential”.
The Chancellor summarized the issues raised:
“. Conclusion: Let me say at the outset I have not found the decision in this case to be straightforward. Put at its most negative, the proposal is to strip out of the church a purpose-made item of financial and historic value, which is roughly contemporary with the building of the church, but which is no longer used, principally I suspect because there is no organist readily available.
The purpose is to provide facilities for light refreshments and a toilet. Even if not the best place in the petitioners’ view, there are other possibilities for their location elsewhere than the base of the tower. If the organ is to be removed, then it is very unlikely the church would ever again be able to purchase such a traditional organ, or, I suspect, even a good modern substitute.
. [a wider point was raised] namely the danger of smaller churches seeking to remove their pipe organs, when they have no one to play them (although they are still playable), and from there it is but a short step to the prospect of small churches, or at any rate those struggling to deal with their financial commitments, whether the need for repair, or their parish share, or indeed their weekly needs, by simply seeking to sell off assets – furniture or fixtures and fittings- because they are ‘not really needed’, or the mission of the church locally is more important.
. I do not think this danger is altogether fanciful…”
He concluded [emphasis added]:
“. Decision: I therefore grant the petition for removal and disposal of the organ, but subject to the restriction on that being done set out in paragraph 19 above, [i.e. ‘the most that could realistically be imposed by way of conditions, if permission to dispose of the organ is given, is that the organ remain as it is until the petitioners have permission from the Court to install the proposed kitchen and toilet facilities, and have the means to carry their scheme through, and a buyer is found and terms agreed’]. In that way the organ will not be reduced to its constituent parts prior to its having a home to go to, with the consequent risk of damage or loss or undue deterioration in its condition”.
. Further, this permission will remain valid only for a period (in round terms) of 2 years, namely to 31st May 2020. (If terms for disposing of it have not been agreed by then, it seems unlikely they will be, so the prospect of the organ going to a new home where it will be loved and used will not happen, and it will be better then for it to remain unused and un-played in its present location, and for the petitioners to re-think their proposals.) There will be liberty to seek further directions by letter or email sent to the Registrar”.
In a comment which could prove significant, he also noted
. …I have an asbestos survey for the building, which if I understand it correctly, raises the possibility of there being asbestos within the organ itself. This may well mean that specialists are needed in the dismantling of the instrument for its disposal, and re-enforces the need to keep it intact until it is finally to be disposed of. There is not much information on the topic, but the petitioners suggest that the advice they have from IBO is that the purchaser is usually liable for the costs of removal, which will include any charges that arise because of the asbestos.”
A future post will deal with the issue of asbestos in organs, the main source of which appears to within the blower box rather than asbestos elsewhere in the church building; however, the operation of organ will facilitate the circulation of dust and other particulates within the atmosphere. [Back] [Top]
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions & other building works
- Reconsideration of pews vs upholstered chairs, 18 May 2018.
- Re-use of institutional burial grounds, 3 May 2018
- PCCs and “friends’ charities”, 9 May 2018
- Parishes and the “GDPR”, 11 May 2018
- GDPR and the Church Electoral Roll, 15 May 2018
- Court hears objector to female bishops, 21 May 2018.
- Exeter Diocese CDM complaint not proved, 4 May 2018
[The Church of England has now published the Decision and Publicity Order relating to the Tribunal consideration of The Revd ‘R’ – April 2018].
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.
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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