Ecclesiastical court judgments – July 2018

Review of the ecclesiastical court judgments during July 2018

July’s consistory court judgments have included:

Acomb is a suburb within the City of York Unitary Authority, to the western side of York (population 22,215). July’s judgments included one from the parish church, St Stephen, and another from St Aidan, the other church within the parish. Images of both churches are available here. In Re St. Peter & St. Paul Bassingbourn the parties opponent made the questionable decision to assess the congregation numbers by inter alia using of a camera trained on the south door from inside a nearby house [8-10]. Re St. Stephen Acomb is of interest in that the court addressed the issue of light pollution from the proposed illumination of the church spire/tower, and in Re All Saints Pickwell, the Chancellor directed that the churchwarden should pay the costs of the proceedings personally.

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


Reordering, extensions & other building works

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Substantial reordering

Re St. Peter & St. Paul Bassingbourn [2018] ECC Ely 1 The petition contained proposals for extensive reordering of the 13th century Grade I listed church. The Parochial Church Council wished to expand the use of the church by providing, inter alia, kitchen and toilet facilities, meeting rooms, a gallery, new seating (for more flexible worship and meetings) and new heating, thus providing a more useful community resource. There were ten parties opponent, as well as opposition from the amenity societies. The Chancellor granted a faculty for the majority of the proposed works. [Back] [Top]

Reordering and alternative uses

Re St. Mary Southampton City Centre [2018] ECC Win 3 The re-ordering proposed by the petitioners was to facilitate a project by the diocese to establish a new congregation at the church, in association with Holy Trinity Brompton and its Churches Revitalisation Trust. However, the Chancellor commented [12]:

“…the petition reached the court in an unacceptable form. It should not be left to the court and the registry to piece together what aspects of the overall proposals are and are not currently being pursued from a paper-chase through the documents. This is particularly important where a major and controversial change to the ordering of a listed church is being proposed, as in this case”.

Whilst he granted a faculty for the reordering of this Grade II church by Street, involving the six items listed by the court (in contrast to the nine originally submitted), the judgment also included a statement on five other items which “for the avoidance of doubt, permission is NOT granted”, [capitalization in original]. Furthermore, the faculty was subject to a number of detailed conditions [11]:

“requiring the submission of more details in terms of the design and materials of the elements proposed…the Petitioners should understand that approval of these matters will not be automatic, so it may be in their best interests to submit these details sooner rather than later”.

The petitioners were also cautioned [13]:

“… I would remark that the success of this petition has been secured by the removal of the contentious elements – chiefly as far as the Victorian Society is concerned the proposal to use the historic baptistery for toilets and urinals. If this proposal is ultimately to be pursued, the Petitioners should not make any assumption that it will be successful. Likewise the proposal to remove the choir stalls. I make this clear so that the Petitioners do not commit now to an eventual layout which is dependent on either of these elements”. [Back] [Top]

Re All Saints Harbury [2018] ECC Cov 5 The petitioners sought a faculty to allow a temporary reordering of the thirteenth century Grade II church, authorised by the Archdeacon in July 2016, to remain permanently along with some additional new elements. The reordering included a children’s area at the west end of the church, the removal of a large painting from the west wall, the permanent removal of six pews, and an information ‘Hub’. There were four objectors, of whom one became a party opponent.

The Diocesan Advisory Committee concluded that the proposed works would not affect the special significance of the church, a conclusion accords with the Chancellor’s assessment on his site visit; it was also reinforced by the stance taken by Historic England and the Victorian Society. Consequently, under Re Duffield: St Alkmund [2013] 2 WLR 854 as modified in Re Penshurst: St John the Baptist (2015) 17 Ecc L J 393, the test to be applied was whether the Petitioners have shown reasons for the proposed works which are sufficiently strong to justify making the changes sought.

The Chancellor concluded that the impact of the proposed changes on the appearance of the church would be modest, and that the proposals for providing information about the church to a growing population were appropriate. Faculty granted. [Back] [Top]

Re St. Stephen Acomb [2018] ECC Yor 3 The petitioners sought a number of changes to the church: installation of an audio-visual system; replacement of the existing lighting to the west end of the nave and both entrance lobbies with LED light fittings; introduction of lighting for the external path; introduction of external floodlighting to the spire/tower; and installation of a new noticeboard near the lychgate.

The DAC recommended the works for approval by the court subject to a proviso that the church surveyor should satisfy himself with the adequacy of the lux diagram, which was to meet CIBSE standards. However, the issue of light pollution was raised by a parishioner who objected to the proposed lighting of the spire on the ground that it would cause a significant amount of light pollution.

The petitioners indicated that they had followed their architect’s advice and also that of a specialist lighting consultant; as a result they proposed to use modern LED type lights which minimise light pollution by focusing the light to specific areas and thereby minimising spill and light pollution. Furthermore they noted that they would not be able to proceed until they have obtained Local Authority planning permission and that will not be granted unless the Local Authority is satisfied that there will be no environmental pollution. The Chancellor noted:

“[13]. …In that respect, it is in my judgement significant, that the local authority planning officer who was clearly concerned about the environmental impact of the proposals was not concerned about light spill or light pollution.

[14]. In my judgement, the petitioners have made out their case for the proposal. I am dealing with that proposal effectively as amended in relation to the matters set out in the preceding paragraph you. Further, I am satisfied that they have taken and will take all necessary steps in order to ensure that there is no unacceptable light pollution as a result of this proposal. I am also satisfied that the concern raised by [the objector] does not provide a reason why the proposal should not be allowed to proceed.

The Chancellor had been made aware of a recent visit by an officer of the planning department, who recommended the fixing of the external light sources on the stonework, rather than on poles. DAC was consulting its members regarding the mounting of the fixtures on the fabric of the church. The Chancellor noted that the church is Grade II and that the proposal is to fix into the mortar joints, also the fittings and wiring will be painted out so as to match the stone colouring.

A faculty was granted conditional on the light fittings not being fixed to the fabric of the church unless and until the DAC has approved both the principle and the manner of so doing, or by the court in the event of agreement not being reached. [Back] [Top]

Other building works, including re-roofing

Re St. Mary West Chiltington [2018] ECC Chi 2 The petitioners sought to install two new gas-fired central heating boilers in the link structure between the church and the new vestry, to replace a single 17 year old gas-fired boiler installed in the same link structure, constructed in 1999-2000, and a 25 year old oil-fired boiler installed in a Victorian boiler-house 20 metres from the church. There was one written objection that the proposed installation would take up valuable storage space.

The church is Grade I listed, but in the judgement of the Deputy Chancellor, the petitioners’ proposals, if implemented, would not result in harm to the significance of the church as a building of special architectural or historic interest. This is also the view of the DAC and was not a point raised by the objector. Therefore applying the questions posed in Re St Alkmund, Duffield [2013] Fam. 158 at 87, this is therefore a case in which the presumption “in favour of things as they stand” is easily rebutted by the needs that would be served by the proposed works, and by the particular characteristics of those proposed works as outlined in this judgment and explained in more detail in the petition [5].

The Deputy Chancellor had no hesitation in granting the faculty as sought by the petitioners. [Back] [Top]

Re St. Philip & St. Jacob Bristol [2018] ECC Bri 1 Chancellor Justin Gau expressed his difficulty in dealing with the case: the amenities bodies did not submit any objections to the Registry; all their correspondence was directly with the petitioner, some of which was forwarded to the Registry. In such circumstances, there is no legal requirement for the Chancellor to take note of what they have said. Furthermore, there was an apparent reluctance for the amenities bodies to liaise with the registry in relation to progressing matters.

In an effort to resolve matters an informal directions hearing was held in the church with the attendance of representatives of the amenities bodies, as was done by Chancellor Hill QC in the case of Re Holy Trinity Poynings [2017] ECC Chi. However, “the idea of a directions hearing on a Saturday morning clearly was not attractive to the amenities bodies and the only representative who attended was Stephen Guy from Historic England [3].

At the directions hearing it became clear from the site visit that the removal of the pews and pew bases (for which no one has raised an objection, admissible or otherwise) would create a floor surface on different levels. The original stone floor is on a slope and the pew bases are at different heights. The installation of a new floor ‘floating’ above the original floor would create a smooth, flat surface. The new floor would be easily reversible and will allow this growing church to continue its mission and outreach. Having seen the floor Mr Guy was clear that, in all those circumstances, Historic England would have no objections to the petition [4].

Applying Re Duffield: St Alkmund [2013] 2 WLR 854, 6, the Chancellor was satisfied, having visited the Church that the answer to the first question is ‘no’. Whilst this is a Grade II* listed church the proposal by the petitioners which appears radical is, in fact, easily reversible. Should there be a further petition in due course to effect a permanent change to the floor then this will be dealt with on its merits when it is submitted. Faculty granted, subject to the condition that the choice of chairs to replace the pews was to be overseen by the acting Archdeacon. [Back] [Top]

In the matter of a building in the churchyard of Christ Church Spitalfields and an application for restoration order and a petition for a confirmatory faculty [2018] EACC 3 Arches Court granted permission to appeal on some of the grounds raised by the applicants with regard to the judgment of the consistory court of the Diocese of London, Chancellor June Rodgers sitting as Deputy Chancellor, [2017] ECC Lon 1. [Back] [Top]

Re All Saints Pickwell [2018] ECC Lei 3 An application was made for a confirmatory faculty to approve the covering of the north-aisle roof of a Grade I listed church with the non-metallic roofing membrane Sarnafil, which had been carried out without faculty consent. Although the Diocesan Advisory Committee had been consulted, one of the churchwardens ordered the work to be done, with the approval of the Parochial Church Council but without faculty approval. Rather than directing the unauthorised work to be undone, the Chancellor granted a faculty with the proviso that the Sarnafil roofing should be inspected and maintained regularly; when it needed to be replaced the church should apply for permission for a replacement form of roofing, “which should be decided by [the Chancellor] or [his] successor. Furthermore, there should be no presumption that because Sarnafil is already there, then Sarnafil should be used in the future.”

With regard to costs, the Chancellor issued the direction [emphasis added]:

“[51]. Mr Watts [the churchwarden] was the driving force behind the decision to go ahead with the Sarnafil option without faculty approval. As a consequence of it, I have not decided the question whether Sarnafil will normally be an acceptable option. I have only been able to decide what should be done in the circumstances created by Mr Watts’s behaviour.

[52]. I therefore intend to order that Mr Watts should pay the costs of the proceedings personally. He may not take a contribution or indemnity from the PCC or from any other church funds. If he is right in his contention that he was supported thoroughly by the PCC, then the individual members of the PCC are at liberty to make their own voluntary contributions towards his debt.“

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Re St. Aidan Acomb [2018] ECC Yor 2 The vicar and churchwardens wished to carry out certain items of refurbishment to the church, including “install etched safety glass panels between the main entrance lobby and the church”. It was intended that these glass panels should replace the existing wooden panels, in the interests of safety and security and allowing more light into the lobby. Two parishioners objected to the glass panels on the grounds that anyone who felt ill and wanted to sit outside the body of the church for a while during a service would not be able to enjoy some privacy in the lobby if there were glass panels. The petitioners pointed out that there were other areas in the church where people who were feeling ill could enjoy some privacy. The Chancellor determined that the petitioners had made out a proper case for the work and granted a faculty. [Back] [Top]

Removal and replacement of pews &c

Re St. John the Baptist Heaton Mersey [2018] ECC Man 1 The petitioners wished to remove the church pews and replace them with ICS stacking chairs of solid oak with an oak veneered plywood seat and back. The Victoria Society objected to the proposal, but was not a party opponent. The Chancellor was satisfied that a very low degree of harm to the church would result from the removal of the pews, which would be substantially outweighed by the public benefit that would be achieved by their replacement. He accordingly granted a faculty. [Back] [Top]


Exhumation

Errors in burial

Re Cheshunt Cemetery (No. 1) [2018] ECC StA 1 The Petitioners’ daughter died aged 10 in 1982 in tragic circumstances, and the petitioners had no part in the funeral arrangements, which included interment of ashes in a consecrated part of Cheshunt Cemetery. Upon making enquiries in 2017 about the possibility of having her remains buried next to those of her daughter, the mother discovered that the ground in which her daughter’s remains were interred was consecrated. The petitioners, both atheists, would not have agreed to the interment of their daughter’s remains in consecrated ground, had they been aware of the situation at the time of their daughter’s death. And in view of her atheistic beliefs, the mother could not contemplate being buried in consecrated ground next to her daughter. The Deputy Chancellor determined that, notwithstanding the passage of time since the interment in 1982, this was a case of exceptional circumstances based on a fundamental mistake at the time of the interment. The Deputy Chancellor therefore granted a faculty for exhumation and reinterment in an unconsecrated part of another cemetery. [Re Cheshunt Cemetery (No. 1) [2018] ECC StA 1] [Back] [Top]

Other

Re Cheshunt Cemetery (No. 2) [2018] ECC StA 2* The petitioners’ baby had tragically died aged two days in 2004. The child’s cremated remains had been interred next to the graves of other children in a consecrated area of Cheshunt Cemetery. The petitioners had been happy with the location of their baby’s grave and with a Christian service conducted by a priest, though they stated in papers before the hearing that they were “from non-religious families”. The petitioners were now planning to move to a town 28 miles away and had in mind moving abroad in 5 or 6 years’ time. They now regretted the decision to have the baby’s ashes interred and wished to have the ashes exhumed, so that they could keep the ashes with them wherever they moved. The mother intended in due time to be buried with her baby’s ashes. Following the guidance of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299 (“….a change of mind as to the place of burial on the part of relatives or others responsible for the interment should not be treated as an acceptable ground for authorising exhumation …” and “… remains are not to be regarded as ‘portable’ at a later date, because relatives move elsewhere and have difficulty visiting the grave …”), the Deputy Chancellor could find no special circumstances to justify the grant of a faculty. [Back] [Top]


Organs

Re St. Denys Ravensthorpe [2018] ECC Pet 1 The reordering proposals included the construction of a WC and servery, the removal of a pipe organ installed in 1958 and its replacement with a digital organ. Two parishioners objected to the proposals. The Chancellor was satisfied that the proposed scheme would not cause harm to the significance of the church as a building of special architectural or historic interest and accordingly granted a faculty. [Back] [Top]


Fonts

Re Eastern Green St. Andrew [2018] ECC Cov 6 The Vicar and Churchwardens of the unlisted Victorian church petitioned to remove the existing stone font installed in 1975 and currently situated at the north-east end of the nave, near the pulpit. This would be replaced with a new portable solid-oak font, incorporating the original font bowl and cover. There was one letter of objection. The Chancellor granted a faculty, subject to a condition that when not in use, the font should be positioned at the west end of the church. The Chancellor also authorised the disposal of the stone font, and if it could not be used in another church or appropriate setting, it was to be buried in the churchyard. [Re St. Andrew Eastern Green [2018] ECC Cov 6] [Photo] [Comment] [Back] [Top]


Links to other posts

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

Churchyards

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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 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 – July 2018" in Law & Religion UK, 30 July 2018, https://lawandreligionuk.com/2018/07/30/ecclesiastical-court-judgments-july-2018/

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