Review of the ecclesiastical court judgments during June 2018
In June 2018 there was a bumper crop of 12 consistory court judgments, although these have been in a fairly restricted area, and 7 have concerned churchyards:
In Re Holy Trinity Drayton Parslow  ECC Oxf 3, an additional inscription “Beloved” on his father’s headstone was sought by the petitioner who had received a custodial sentence for his murder; In Re Christ Church Surbiton Hill  ECC Swk 2, the Chancellor made some observations on the second ‘Duffield’ questions and on the status of the CBC’s guidance regarding chairs; and Re Grangetown Cemetery  ECC Dur 1 addressed the disposal of two lodges and the associated land by Sunderland City Council.
This summary also includes links to other posts relating to ecclesiastical law.
Reordering, extensions & other building works
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews &c
Re Holy Trinity Headington Quarry  ECC Oxf 1 The petitioners sought permission for the extensive reordering of the Grade II church, and the building of an extension in the churchyard to accommodate toilets, a kitchen, a store room, a meeting room and refurbished choir vestry and vicar’s vestry and toilet. The extension would be built over one known grave of a married couple, who died in 1975 and 1980 respectively , and for whom there were no known relatives .
A site visit confirmed the views of the DAC and of the Victorian Society, that the proposals would result in harm to the significance of this listed building, and a such the guidelines set out in Re St Alkmund, Duffield  Fam 158 were not applicable. With regard to the proposals that affect the churchyard, the test set out by Lord Penzance in Peek v Trower  P 21 at 27 applied , and the Chancellor considered the objections that had been raised.
The assertion the deceased buried in the grave in question “are a branch of [an objector’s] family tree” was considered to be far too vague a relationship to bring the objector within the meaning of “relative” in section 18A of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (inserted into the 1991 Measure by the Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015) [18-19].
Citing Chancellor Newsom in Re St Andrew’s Church, Backwell (Bath and Wells Consistory Court, 1982, unreported), the Chancellor stated that he did not accept – as some of the objectors had suggested – that building an extension to the church over a known burial amounts to a ‘desecration’. The proposed extension will rest on pile foundations, avoiding the need for excavation . Furthermore, the result of the proposed extension would be that a burial which was formerly outside the church building becomes a burial within the church building – if anything, a more honoured place of burial than in the churchyard .
With regard to the objections relating to the window commemorating C.S. Lewis, who used to worship at the church, the Chancellor noted that following the building of the extension, the window would become an internal window; it would be lit from a sky light in the extension and would no longer need – as is currently the case – to be protected by the steel grill which significantly detracts from its aesthetic quality .
The parochial church council had undertaken extensive consultation within the parish and that the proposals had been developed over the past 10 years; planning permission had been granted for the extension [31-32]. The Chancellor considered that the petitioners had discharged the burden on them to show that the proposals would, in the words of Peek v Trower,
“make things better than they are – that the church will be more convenient, more fit for the accommodation of the parishioners who worship there, more suitable, more appropriate, or more adequate to its purpose than it was before”.
These amounted to good reasons for the proposals generally but also, in particular, for building into the churchyard over the grave of the two parishioners. Faculty granted subject to conditions. [Back] [Top]
Re Christ Church Surbiton Hill  ECC Swk 2 In 1971 there had been a major reordering of the Grade II Victorian church, which included inter alia a re-orientation, so that the pews (made free-standing) faced north towards a dais on which the Holy Table was positioned; the nave was also carpeted. A new major reordering was proposed, to include returning to the original orientation (east-west), replacing the carpet with tiles and replacing the pews with upholstered chairs with metal frames. The Victorian Society objected to the proposed tiles and the upholstered chairs.
In his judgment, the Chancellor commented on the second of the ‘Duffield’ questions and also on the status of the CBC’s guidance regarding chairs. With regard to the former, he said:
“. It seems to me that where an objector is proposing what he considers to be improvements to a scheme which is beneficial, the second Duffield question does not exhaust the Chancellor’s proper consideration of the matter before him. That question addresses the core issue of whether permission ought or not be permitted. It does not address the question of what conditions are appropriately imposed upon such a permission.
It seems to me that…the test for the Chancellor is essentially one of reasonableness: whether in the circumstances it is reasonable and appropriate to require the proposals before him to be modified by way of condition. I can test whether it is appropriate to ask this question by reference to a proposed improvement that either would not increase the cost of the scheme or perhaps would even reduce it. It seems to me that it would be absurd not to require what I was persuaded was an improvement which was cost free.
Of course once one is looking at improvements that impose additional costs, careful consideration must be given as to whether it is reasonable to impose those additional costs and the point may be made that the viability of the scheme may be imperilled if costly additional requirements are imposed. But I do not think that as a matter of principle a condition to a scheme requiring a change which might impose additional costs is ruled out”.
With regard to the CBC Guidance, he stated:
“. …I accept that the CBC Guidance on seating is guidance given by virtue of the duty of the CBC under section 55 (1) (d) of the Dioceses, Mission and Pastoral Measure 2007
… to promote, in consultation with such other persons and organisations as it thinks fit, by means of guidance or otherwise, standards of good practice in relation to the use, care, conservation, repair, planning, design and development of churches.
. Evidently guidance under sub-section (d) coming from a body constituted of those with great expertise and experience in this field (as the CBC is) is entitled to considerable weight.
Nonetheless it is not given any special status by the 2007 Measure and, in particular, that Measure does not establish a presumption that guidance issued under section 55 should be followed unless there is good reason to the contrary or a justification for departing from it is spelled out”.
[This is in line with our views on CBC Guidance, expressed in Pews vs Chairs: Application of CBC Guidance].
The Chancellor decided that the proposals were reasonable and granted a faculty. [Back] [Top]
Other building works, including re-roofing
Re St. Mary Droxford  ECC Por 1
A faculty was granted in November 2017 which authorised the building of an extension to the Church of St Mary and All Saints, Droxford, in the Parish of Droxford, to provide much-needed space for parish facilities. However, in view of the potential harm to the historical and architectural significance of the Grade 1 listed church, Chancellor Philip Waller concluded that issues raised by the Church Buildings Council and the DAC would require further consideration by the court before construction work commenced.
The Chancellor carefully examined the proposed internal layout and the concerns raised by the DAC and CBC was satisfied that the conditions applied to the faculty had been met; permission was given for the parish to proceed with the project, subject to conditions. [Back] [Top]
Removal and replacement of pews &c
Re Our Lady of Bloxham  ECC Oxf 2 The “unfortunate history” of this case concerns the illegal disposal in 2011 (or possible earlier) of seven pews and four pew frontals which had been installed as part of a restoration by G E Street between 1864 and 1866; “given Street’s practice of designing all of his own furniture, it must be assumed (according to Richard Peat of Historic England) that both [pews and frontals] were designed by him” .
Their removal took place “under a previous incumbent and with almost wholly different people involved”; however, it appears as though the present petitioners might have been of more assistance to the court (and to their case). The Chancellor found that their statement of significance was difficult to rely upon vis-à-vis the level of significance which it attached to the different elements of the church, although it was helpful insofar as it details the contents of the church .
Furthermore, given that “it was by its nature a non-expert and secondary assessment”, he did not give it any weight over and above the e-mail from Historic England which it relied upon. In addition, he also attached little weight to the parish’s statement of needs, given that it concerns the general re-ordering which the parish hopes for at some stage, devoting one paragraph to the removal of the seven pews currently being considered. He did, however, take into account the relevant section regarding the “cluttered internal space” (which contrasts with Betjeman’s view, although not before the court, of the “the spacious aisled and clerestoried interior”) .
In applying Re St. Alkmund, Duffield  Fam 158, the Chancellor was constrained by the lack of information on the interior of the church prior to the removal of the pews, and details of their positions &c. Nevertheless, in his assessment of the petition, he did not take into consideration the impracticability of returning the pews. (With regard to the latter, the pews for removal had been selected on account of their poor condition, and they had deteriorated further in their storage in a farm barn).
In contrast to the DAC which considered that the removal of the seven pews would not affect the character of the church as a building of special architectural or historical interest, the Chancellor commented:
“. … it seems to me that in a church which was fully pewed, by an architect as important as Street, the clearance of any area must affect the character of the church insofar as that scheme is concerned. Even if that does not necessarily follow, it is my view that in this case, as a result of both Historic England and the Victorian Society’s statements regarding the significance of the church’s interior, the clearance of the areas concerned here does affect the character of the church as a building of special architectural or historical interest”.
“. … Most importantly, there is a substantial number of remaining pews, and they give a clear sense of what the church was like under Street’s fully pewed scheme. In the circumstances I find that the level of harm, while not negligible, is minor.”
With regard to the justification for the proposals,
“. Considering firstly the petitioners’ statement of needs, I do not consider this to be clear and convincing as a justification for removing the pews. It does not refer to any practical justification, but simply the de-cluttering of the church … Such arguments are purely subjective, and I might say based on what risks being an anachronistic view of churches as ideally being empty, somehow ‘pure’ spaces.
I particularly discount this justification given that chairs have been used in the cleared areas which also clutter the space on the petitioners’ terms. In any event, a purely aesthetic justification for changing part of a grade 1 listed building (the whole of which is listed, including the Street additions) would have a particularly high hurdle to have to meet, which this does not.
. The DAC site visit report … does however give a clear and convincing justification for removing the pews. While it does not give much detail, the report refers to them as ‘the young children’s area, a display and welcome area, and the extension of the Dias [sic]’, and includes photographs which support their being used for these purposes”.
In the circumstances the Chancellor found that the removal of the seven pews and their disposal was justified, and granted a confirmatory faculty for their removal, and now for their disposal . Importantly, in reaching this conclusion he did not take into account the practical difficulties which the parish would evidently encounter were a restoration order to be made .
Re Grangetown Cemetery  ECC Dur 1
Within the Grangetown Cemetery owned and operated by Sunderland City Council owns and operates a cemetery are two lodges. The buildings that form the lodges are not on consecrated land and or approximately 150 years they have been used as private residences or as an office. The Council is looking to dispose of both lodges by way of long leases or sale of the freeholds .
The Council wished to include the associated garden areas within the titles of the respective lodges when disposing of them by granting long leases or selling the freehold; although the lodges themselves are not on consecrated land, the garden area for lodge has been consecrated, and was used for burials over 100 years ago. No graves are marked by memorials, but the Council’s burial records indicate 18 adults and 10 children are interred within the garden site of North Lodge, and 31 adults and 12 babies are interred within the garden site of South Lodge .
The Chancellor determined that these consecrated pieces of land could not lawfully be sold by the Council, but the Chancellor was willing to grant a faculty to authorise the granting of licences by the Council for the two pieces of land to be used as gardens. [Back] [Top]
Re A Churchyard  ECC Lic 5 A widow sought a faculty to authorise the laying of kerbs and chippings and a stone vase on her late husband’s grave, which had previously been used for the interment of the remains of his great-uncle. The Parochial Church Council objected, but did not become a party opponent. Furthermore, it declined to make any further representations other than stating that it wishes to observe the Churchyard Regulations .
The Chancellor noted that he had explained at some length in St Leonard, Birdingbury  Ecc Cov 1 his understanding of the principles to be applied when a faculty is sought for a memorial falling outside the range which diocesan Churchyard Regulations authorise incumbents to permit without faculty. In short a good reason is needed to justify the grant of such a faculty .
The Chancellor decided that there were exceptional circumstances to justify the grant of a faculty, even though the proposals were outside the churchyards regulations. The grave in question had previously had kerbs, which had been moved 20 years earlier; the incumbent at the time had assured the petitioner that there would be no problem in reinstating kerbs after the next burial in the grave; there were already numerous examples close to the grave of kerbs, chipping and vases, so to refuse to allow another set of kerbs would be unreasonable in the circumstances. Additional considerations were: the unevenness of the surface of the churchyard; and the approach which the Parochial Church Council takes to lawn mowing (it deliberately adopted a policy of refraining from mowing or strimming for part of the year).
In granting a faculty, Chancellor Stephen Eyre QC said:
“. I am conscious of the burden placed on Church Councils in maintaining churchyards and of the weight to be given to the views of such a council as to what is appropriate or desirable in a particular churchyard. However, in the current case, although I do take account of those views, they must carry rather
less weight than might otherwise be the case given the paucity of the information before me as to the particular reasons for the Council’s stance”.
[Note: the name of the petitioner and the churchyard were anonymized:
“. …In those circumstances the interests of public justice are adequately served by the provision of an anonymized judgment. In order to achieve the objective of minimising the risk of harm to the Petitioner’s health being caused by public knowledge of her circumstances that anonymization must extend to the name of the church and churchyard in question”.] [Back] [Top]
Re St. Michael & All Angels Horton  ECC Lic 6* The petitioner’s late father had been buried in the churchyard in 2000. Her mother died in 2017, and the petitioner wished to carry out her mother’s wishes to have kerbs placed around her father’s grave and her mother’s ashes scattered on the gravel.
The Chancellor refused to grant a faculty to authorise kerbs and gravel to be placed on the grave. Although there were some other graves with kerbs in the churchyard, the grave in question was next to the footpath and the first in a long line of graves with no kerbs, and kerbs would make maintenance of the churchyard more difficult.
The Chancellor also refused to allow the scattering of ashes, on the ground that scattering or strewing was contrary to the diocesan Churchyards Regulations. He deemed it was not necessary to determine whether the scattering of ashes was contrary to Canon B 38 (4)(a) and S3 Church of England (Miscellaneous Provisions) Measure 1992.
The wording proposed to be added to the headstone was wholly appropriate, and should the petitioner wish to proceed on the basis of the interment of her mother’s remains in the existing grave following the procedure laid down in paragraphs  and  of the Churchyard Regulations, then that will be permissible and a faculty authorising the proposed additional wording can issue without further reference. [Back] [Top]
Re St. Peter & St. Paul Winderton  ECC Cov 4 The petitioner sought permission for an unpolished light grey granite memorial on which would be etched an image of an eagle in black enamel. Assertions regarding the source of the stone of existing memorials by the petitioner and objectors, and the prominence of the prominence of the proposed one were questioned by the Chancellor.
HH Stephen Eyre QC determined that the proposed stone would be acceptable for the churchyard, and was prepared to allow the image of an eagle, provided that it was etched but not coloured black. He invited the petitioners to consider a revised wording of the inscription to tie in with the use of the image of an eagle, so as to give an indication of why that image is being used. [Link to Judgment] [Back] [Top]
Re Holy Trinity Drayton Parslow  ECC Oxf 3* The father of the petitioner died in September 2009 and was buried in Drayton Parslow churchyard in April 2010; the existing memorial was set up in in 2014 under the authority of the Archdeacon of Buckingham. The inscription currently sets out the name and dates of the deceased and describes him as ‘Father, Teacher, Linguist’. There is an empty line before the words ‘Father, Teacher, Linguist’ in which the petitioner, Mr Mark Alexander wishes to insert the single word, ‘Beloved’.
The incumbent and one of the churchwardens became parties opponent and there were two parishioners who submitted letters of objection. In 2010 the petitioner had been convicted of murdering his father, and had been sentenced to life imprisonment. Following the murder, the petitioner had buried his father’s body under concrete and had made a pretence to the community that his father was still alive. The Chancellor refused to grant a faculty. He concluded that, given the circumstances, it would be inappropriate to allow the word ‘Beloved’ to be added to the memorial, and would be likely to give offence to the local community. Furthermore, the word would appear to the public as an expression of the petitioner’s continuing denial of the offence for which he had been convicted. [Link to post] [Back] [Top]
Re St. Mary Magdalene Mulbarton  Ruth Arlow Ch. (Norwich) The Rector and churchwardens petitioned for a faculty permitting the incumbent to authorise modest uncoloured pictures on memorials within the new churchyard extension. The Chancellor granted a faculty subject to the conditions that the pictures authorized: (i) must not occupy more than one third of the face of the stone and must be uncoloured; (ii) must reflect the life of the deceased; (iii) must not be inconsistent with Christian theology and doctrine; and (iv) must not be of a subject-matter which is transitory in nature. A factor in the Chancellor’s decision was that the churchyard extension was visually screened from the main churchyard by a large blackthorn hedge. [Back] [Top]
Re St. Mary the Virgin Brook  Philip Waller Ch. (Portsmouth) The petition proposed a churchyard memorial in the form of a wheeled cross on an open plinth and solid base. Whilst the design was outside the churchyards regulations, the Chancellor determined that the design was both attractive and appropriate for a churchyard setting, and he accordingly granted a faculty. [Link to Judgment] [Back] [Top]
Re St. Andrew Haughton-le-Skerne  ECC Dur 2* The cremated remains of the petitioner’s son, a former Royal Marine, had been interred in an area of the churchyard set aside by faculty for the interment of cremated remains. The faculty stated that any interment may be marked by “a ledger stone or vase block”. The churchyards regulations provide that “any burial without a headstone may have a horizontal stone ledger 9 inches (or 225mm) square, set flush with the turf.” The petitioner wishes to have a headstone, measuring 20″ wide by 12″ high and 2″ deep, on a base plinth, with a horizontal stone ledger measuring 3 feet by 2 feet. Very extensive inscriptions were proposed. The Chancellor was not prepared to grant a faculty, but indicated that he might be prepared to authorise a compromise proposal, in accordance with further advice from the Diocesan Advisory Committee. [Back] [Top
Recent summaries of specific issues that have been considered in the consistory courts include:
- Asbestos in pipe organs, 18 June 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.