Review of the ecclesiastical court judgments during August 2018,

This month’s consistory court judgments have included:

• Reordering, extensions & other building works
• Churchyards and burials

This summary also includes links to other posts relating to ecclesiastical law. Links to some of the judgments will be added when they become available.

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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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Substantial reordering

Re St Phillip and St James, Leckhampton [2018] Glo 1Sections of the judgment which will be of general interest to parties involved in the reordering of a church under the faculty jurisdiction are reproduced in our post Lessons from Pip and Jim’s. The legal aspects of the case will be examined in more detail in a later post. [Re SS Philip and James [2018] Ecc Glo] [Back] [Top]

Reordering and alternative uses

Re Christ Church Laxey [2018] ECC Sodor 1 The Team Rector and churchwardens sought a confirmatory faculty for the retention of a nave altar, which had been in use since a reordering of the interior of the church in 2013/2014; as part of the reordering, wood from the old choir stalls had been used as a table which has served as a nave altar from such time. The previous incumbent considered that it was “lacking in refinement for such a holy purpose”. However, a new altar could not be purchased in time for Easter Sunday 2014 when the bishop was visiting “and on such occasion he consecrated such nave altar, albeit that it is conceded that it had not been the intention of the Vicar, Wardens and Parochial Church Council [`PCC`] that he should do so. It has since remained in situ and in regular use”.

The Diocesan Advisory Committee objected to its retention on the grounds inter alia  that it was too low (it originally had castors, which had been removed), and the surface area was too small [8]. Nevertheless, the Vicar General was satisfied that the surface of the altar was adequate, and he granted a confirmatory faculty subject to conditions that blocks should be placed under the legs of the altar, to raise the altar to a more appropriate height, and that the altar should at all times be covered by a Laudian fall. [Re Christ Church Laxey [2018] ECC Sodor 1] [Back] [Top]

Other building works, including re-roofing

Re St. Giles Kellamarsh [2018] ECC Der 2 The faculty petition related to extensive repairs to the church. Though the petition was unopposed, the Chancellor highlighted a “serious procedural problem”, in that the Public Notice did not adequately summarise the nature of the proposed works, such that someone reading the Public Notice would understand what was proposed. It simply said: “To undertake repairs and refurbishments in accordance with the Schedule of Works ref 1403A prepared by Jane Holt Architect 16.02.18 and accompanying drawings numbered…….” The Chancellor therefore directed the issue of new Public Notices summarising the works, and granted an interim faculty for the work to start, subject (inter alia) to a condition that if notice of objection was received, then the work should stop if the Chancellor so ordered.

In addition, he added the following Postscript relating to the Diocese of Derby, although it clearly has wider relevance within the faculty jurisdiction:

“[18] The procedural problem which has arisen in this case has happened far too often in different cases in the recent past, and in circumstances far more blatant than here, where the petitioners have obviously prepared their petition with care and, on its face, strictly in accordance with the requirements printed on the petition form itself.

I want the practice that I have criticised in this case, to cease, and the wording on the petition itself to be self-contained, and comprehensible and comprehensive, without reference to other documents, drawings, specifications or the like, so that it makes sense to the reader of the public notice, who will have no immediate access to the specification or drawings.

I therefore request that all those who handle petitions at an early stage, or are consulted by petitioners – in particular Archdeacons, the DAC Secretary and Registrar – to have regard to the concerns that I have raised, and ensure, so far as they can, that the works described on petitions are suitable to appear on the public notices.

Insofar as any slip through the net, I will return them to the Registry without further ado, so the deficiencies can be rectified and fresh notices prepared. This earlier remedy of a breach of the Rules will inevitably give rise to delay, which is regrettable, but will avoid time being unnecessarily wasted by those who are grappling to understand in a given case, what it is all about!

[Re St. Giles Kellamarsh [2018] ECC Der 2] [Back] [Top]

Re St Wilfred Portsea [2018] ECC Por 3 A faculty was sought for the removal of two World War I war memorials and a soldier’s grave marker from an unlisted mission church, 1907, and placing them on display with other WWI material in the adjacent community room, where they would be more visible and accessible to the community.

The proposal to relocate the memorials would not cause any harm to the fabric of church itself or affect the significance of the church building. The question was whether the move would reduce or detract from the respect and reverence with which they should be treated or whether as the petitioners contend, the new location would enhance their significance and the church’s mission among the wider community.

The Chancellor noted that the reality is that the larger memorial is hidden from view and the smaller memorial and grave marker, while displayed in the chapel, are not generally observed and are not felt to be a focus of prayer. The proposal to relocate all three items together will enable them to be displayed more prominently, with suitable explanatory material and in a place where they can be recognised and respected by the wider community. Faculty granted.  [Re St Wilfred Portsea [2018] ECC Por 3] [Back] [Top]

Removal and replacement of pews &c

Re All Saints Little Bealings [2018] ECC SEI 1 A faculty was granted for the major re-ordering of this thirteenth century Grade II listed church, because although it will result in harm, and in the case of two specific proposals harm with a high impact, not only is that harm judged as being justified clearly and convincingly in terms of the needs of and benefit to the church, but that these proposals offer the only realistic way in which this church can be saved from inevitable closure.

The petitioners proposed a major reordering of the 13th century church, including removal of most of the pews and installation of a kitchen, which would support a proposed ‘cafe hub’. The rationale for the proposals was to stem the decline of attendance at the church and encourage further church and community use, rather than risk closure. The Chancellor was satisfied that a good case had been made for the changes and granted a faculty for all but one item in the proposals. [Re All Saints Little Bealings [2018] ECC SEI 1] [Back] [Top]

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Churchyards and burials

• Development of churchyard
• Memorials

Development of churchyard

Re Holy Trinity Burial Ground Hull [2018] ECC Yor 4 The Chancellor considered two petitions relating to the disused burial ground of Holy Trinity Church Hull, now Hull Minster: [i] to carry out archaeological excavation including the removal of burials and their safe storage pending reburial, the removal and safe storage of affected memorials, partial demolition and safe storage of the northern boundary wall and the subsequent re-interment of burials in the northern part of the burial ground to allow construction of a new slip road at a difficult junction, part of the A63 Castle Street Improvement Scheme, all as per the Trinity Burial Ground Clearance and Exhumation Proposals; and [ii] works relating to the reinstatement of Trinity Burial Ground following archaeological excavation and the clearance of burials. The latter included the excavation of human remains; analysis of a large sample of the remains; the reinterment of the remains; the re-siting of memorials; rebuilding of the boundary wall of the burial ground; and landscaping.

There was one objection from a woman whose distant relatives (four times great-grandparents) were buried in the part of the burial ground which would be affected by the road-widening. Whilst there was as option for the Highways Agency to proceed via a Scheme under the sections 44 and 68, Mission and Pastoral Measure 2011, it chose to be one of the Petitioners via the faculty route, coupled with the expectation of obtaining a Development Control Order for the transfer of the land to them in due course. It was anticipated that that “somewhere approaching 19,000 interments will be disturbed” and it was proposed to take a sample of 1,500 skeletons for analysis. 

Engagement with Historic England has resulted in a wide agreement about the project, except in two areas: HE considered that the sample size should be between 2000 and 5000 and not limited to 1500, it also believed that the samples for analysis should be removed from and stored off-site for up to 10 years so that funding could be applied for to enable biomolecular analysis also to take place.

Three issues of law were raised by a cases such as this: [i] putting to use of a consecrated churchyard for a secular purpose and contrary to the terms of the sentence of consecration [42-47]; [ii] the exhumation of human remains which have been interred in consecrated ground under the protection of the ecclesiastical court of the diocese [48-49]; and [iii]  the scientific examination of those human remains between exhumation and reinterment [50-56]. The Chancellor was satisfied that a good case had been made out in terms of public benefit and authorised the issue of the faculties sought. [Re Holy Trinity Burial Ground Hull [2018] ECC Yor 4] [Back] [Top]

Re St. Mary & St. Hugh Harlow [2018] ECC Chd 1 The vicar and churchwardens applied for a faculty to re-use the churchyard for burials. Though the churchyard was not closed by Order in Council, burials could now only take place in existing graves. There was one objector. A hearing was held at which the Chancellor dismissed the objector’s twelve grounds of objection as having no substance. In view of this, and also of the fact that the objector had refused to have the matter dealt with by written representations, the Chancellor directed that the objector should pay the costs of the half-day hearing. [Re St. Mary & St. Hugh Harlow [2018] ECC Chd 1] [Back] [Top]

Re St. Catherine Ventnor [2018] ECC Por 2 The petitioners wished to carry out works in the churchyard: [i] developing a small contemplative garden area for burial of cremated remains; [ii] developing a small lawn and garden area for social and recreational use; and [iii] reconfiguring and resurfacing the parking and hard standing area. There was an objection in respect of the parking area. The Chancellor granted a faculty, subject to conditions regarding memorials, human remains and the recording of the works. [Re St. Catherine Ventnor [2018] ECC Por 2] [Back] [Top].

Memorials

Re St. Jude Hexthorpe [2018] ECC She 2 The war memorial in the churchyard was dedicated in 1921 and bore the names of those who gave their lives in the First World War. Subsequently, the names of those who lost their lives in the Second World War were added. The Parochial Church Council now wished to have the memorial refurbished in time for the forthcoming commemoration of 100 years from the end of the First World War. As part of the refurbishment, they wished to have the names of the fallen gilded. The Diocesan Advisory Committee did not approve of gilded lettering. The Chancellor granted a faculty allowing the names to be gilded: the DAC’s decision was based on an aesthetic evaluation, which the Chancellor felt was overruled by the depth of feeling of the petitioners to make the names prominent; a photograph of the memorial in 1921 shows that the lettering stood out; the aging of the memorial would allow it in due time to be more keeping with the church; the names of the fallen should be clearly legible to the local community. [Re St. Jude Hexthorpe [2018] ECC She 2] [Back] [Top]

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Links to other posts

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

General/Miscellaneous

• Lessons from Pip and Jim’s, 28 August 2018.

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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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