Ecclesiastical court judgments and related issues- September

Review of the ecclesiastical court judgments during September 2018

The month’s consistory court judgments have included petitions relating to:

In addition, this post includes links to recent decisions of Cathedrals Fabric Commission for England and  two further “trench arch” applications to the Environment Agency; there are also links to other posts relating to ecclesiastical law.


Reordering, extensions & other building works

[top]

Substantial reordering

Re SS Phillip and James Leckhampton [2018] ECC Glo 1 The petitioners sought to reorder the church including: removing all the pews from the nave and side aisles; creating a raised level floor throughout with underfloor heating; creation of ‘pods’ within the south and north aisles to house an office, kitchen and meeting room space above and chair storage; four WCs; relocating the font; glazing in of the south transept chapel; glazed draught lobby. There were local objections and objections from some of the amenity societies.

The Victorian Society made a formal objection. They objected to the pods, the removal of the pews, the raising of the floor, the impact loss of the removal of the chancel step, the underfloor heating above the columbarium, the glazing of the memorial chapel. The Chancellor granted a faculty: “I have, of course, considered the St Alkmund, Duffield test. Are these ‘exceptional circumstances’ where the public benefit outweighs the level of harm … It is with a somewhat heavy heart that I have to find that the needs of the parish and its current congregation are such that that test is made out.”

Sections 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 are examined in more detail in a later post, Balancing mission, aesthetics and heritage of parish churches – Part III.

[Re SS Philip and James [2018] Ecc Glo] [post] [Back] [Top]

Other building works, including re-roofing

Re St. James Louth [2018] ECC Lin 1 A faculty was sought to remove worn Victorian tiles at the west end of the nave, apart from those around the font, and to replace them with Cadeby limestone paving; this would match the paving laid 20 years previously, when Victorian tiles in the remainder of the nave were replaced, when the Parochial Church Council was unable to replace all the tiles in the nave.

According to a 1998 report provided to support the 1998 Faculty application, the tiles in the sanctuary and chancel were “the finest encaustic tile that was available” but those elsewhere in the church were ‘‘cheaper quarry tiles that require attention”.

Heritage England and the Victorian Society objected to the present scheme. The Chancellor was satisfied that any harm to the significance of the Grade I church as a building of special architectural or historic interest would not be serious, and accordingly granted a faculty. [Re St. James Louth [2018] ECC Lin 1] [Back] [Top]

Re All Saints Branston [2018] ECC Lin 2 In 1972 a reredos had been installed in the church of St. James Grimsby (now Grimsby Minster) in memory of a parishioner’s wife. The reredos had been made by the sculptor Frank Roper to a design by the architect George Pace. In the course of a reordering in 1995, undertaken without faculty, the reredos was removed and stored in the church. Some other items of furnishing were also removed at the time and there present whereabouts were unknown.

The petitioners in the instant case wished to relocate the reredos to All Saints Branston. The Chancellor granted a faculty, but directed that the archdeacon should prepare a list of the furnishings removed in 1995, with the names of the donors and locations of the items, if known, with a view to the Court then making an order in respect of those items. [Re All Saints Branston [2018] ECC Lin 2] [Back] [Top]

Re Mariners’ Church Gloucester [2018] ECC Glo 2 The Chancellor granted a faculty for reordering within a 19th century proprietary chapel, which has only relatively recently become subject to faculty jurisdiction. The chapel was built to cater for the bargees and seamen who worked in or visited the dockland area of Gloucester:

“[3]. …The plainness and the simplicity of the building was not damaged by the fluctuating congregations whose behaviour, whether in drink, fighting, swearing or spitting on the floor might not, sadly, have been appreciated in many inner city churches in Gloucester in the period. This building could and did cope with all this”.

Its rather convoluted history, which nevertheless makes for an interesting read [1 to 7], comments:

 “[7]. …the building managed to wriggle out of the Faculty jurisdiction notice by, it would seem, keeping its head down over the years. Indeed, there has been confusion as to whether the church was ever consecrated”.

The many alterations over the years were done without any thought about obtaining a Faculty, and demonstrate how:

“[17]. …the wisdom (however boring and time consuming) of the Faculty jurisdiction which would have stopped this current mess, and the DAC could have given advice as to how what was being proposed could have been done better”.

Particular attention was paid to the “small partitioned area against the back wall…described as the vestry”.  No record exists of its construction on which the Chancellor commented:

“[18]. …I am prepared to say that almost anything might be better designed and more appropriate for that space. It looks like a small builders’ shack that has migrated inside this church. Inside it resembles, if there is such a thing, a sort of clerical man-shed. In this plasterboard erection are kitchen units, and on its roof, at least in 2013 were stored arched boards detailing past chaplains and benefactors”.

Nevertheless, the congregation has now outgrown the church and the Chancellor granted, in effect, outline planning permission for the proposed scheme; its full details and funding must be further worked up, in discussion with the DAC and then approved, but fundraising for this work can now proceed. Reflecting the considerations undertaken by the consistory court, Chancellor June Rodgers said:

“[47]. …Had this been a church on the edge of redundancy which the Gloucester Council wanted to take over as a tourist site, it might have stayed in its present (but not totally original state), used only occasionally then alteration, other than necessary maintenance then it might have stayed but this church is a living entity and its users want change.”

 [Re Mariners’ Church Gloucester [2018] ECC Glo 2] [Note] [Back] [Top]

Re St. Aidan Bamburgh [2018] ECC New 2 The area around the font of the Grade I church consisted of sandstone flags, which over time had become very worn and had been patched with slate and concrete. The Church Wardens petitioned for permission to uplift the sandstone and slate paving floor of the Baptistry and west end of the church, re-lay with new matching sandstone and re-use the slate, supplemented as appropriate, in the South Aisle to form a continuous slate floor in that location.

Historic England did not object to the proposal; the Church Buildings Council, pointing to available guidance, urged assessment of the significance of the floor as well as consideration of whether wholesale replacement was necessary under the guiding principle of conservative repair. However, it concluded by deferring to the DAC whilst offering further help if such were sought.

On the basis of photographs of the flooring, the Society for the Protection of Ancient Buildings objected to the proposal, preferring to see further patch repairs. However, following a site visit, the Deputy Chancellor observed:

“[13]. … the photographs, whilst showing much wear and patchwork, were far more flattering of the area than was justified.

[14]. Although this flooring may be up to 200 years old, that has to be seen in the context of a medieval church and, looking at the use to which the west end was then put, it is questionable how much thought, care and attention went into laying it even then”.

[…]

[16]. The presumption of leaving things as they stand is readily rebutted by the need to make good the accumulated and extensive patching and mixture of materials, as well as making the area safe, a process that cannot adequately be met by focused repair work and can only be met by the sensitive renewal that is proposed.”

He was satisfied that the proposed work was necessary in the interests of safety from trip hazards, and would not result in harm to the significance of the church as a building of special architectural or historic interest. Faculty granted [Re St. Aidan Bamburgh [2018] ECC New 2] [Back] [Top]

Re St. Andrew Kettleburgh [2017] ECC SEI 4 The petitioners sought a faculty for the reordering of the  Grade I listed church, which included works to the south porch and the west end of the nave, the repositioning of three rows of pews and adjustment of floor levels. There were no individual objectors but there were objections or reservations from Historic England and the Church Buildings Council.

Applying In Re St Alkmund, Duffield [2013] Fam 158 as reaffirmed by the Court of Arches in In re St John the Baptist, Penshurst [2015] WLR (D) 115, the Chancellor judged that the proposals (save for the electrical upgrading) would result in harm to the significance of this church as a building of special architectural and historical interest, adding “it is difficult to see how this could be seriously contested” [32]. The principal need was the long-term issue, of improving access to the church, providing a “welcome” area, improving the appearance of the church, and upgrading the electrics [38]. Taking account of the comments of HE and the CBC, and the response of the petitioners, the Chancellor granted a faculty, subject to conditions [39].  [Re St. Andrew Kettleburgh [2017] ECC SEI 4] [Back] [Top]

Re St. Peter & St. Paul Great Somerford [2018] ECC Bri 2 The reordering proposals included: tiling; redecoration; creation of a coffee area by removing five pews; modification to the font; removal of choir stalls; accessible lavatory; a galley kitchen; removal of further pews to create a new vestry; some new stackable, upholstered chairs; and renewal of the heating and electrical systems. The church’s small aging congregation wished to increase the flexibility of use of the church and thus increase the numbers of those who attend.

The temporary faculty granted under licence had allowed the petitioners to assess the new layout of the church for regular and occasional services; the response of the various congregations have been overwhelmingly positive (not least the ending of the “inappropriately comedic ‘three point turn’“ in the crowded Chancel area that had been forced on undertakers as the coffin was brought in and removed from church) [6].

The Chancellor was satisfied that the proposals, if implemented, would result in little if any significant harm to the church as a building of special architectural or historical interest, and granted a faculty.  [Re St. Peter & St. Paul Great Somerford [2018] ECC Bri 2] [Back] [Top]

Re St. John the Baptist Bamford and Derwent [2018] ECC Der 3 The Grade II* listed church St John’s was built around 1859 – 1860 to designs by William Butterfield; “The pews and internal fittings, even down to very small items like hinges, were designed by him also. This is the only church by Butterfield within the Diocese of Derby” [2]. The Petitioners wished to remove four pews, two from each side of the main aisle of the church nave, in order to provide a larger space for nave communions and village events, such as concerts.

Historic England considered that the pews made a strong contribution to the overall significance of the church. The proposed removal would therefore be harmful, thus requiring ‘clear and convincing justification’, but they acknowledged that there is limited space at the front of the nave to allow for flexible use.

The Victorian Society describes the interior as “exceptional, coherent and a largely intact example” of the work of William Butterfield; the  proposed removal “could result in a harmfully excessive reduction of the important historic seating. In particular, [it considered] the loss of the pew labelled 4…to be problematic…”.

The Chancellor determined that any harm to the significance of the building would be ‘low’, but only authorised the removal of three of the pews, as he considered that the removal of the fourth pew would provide very little extra space, as observed by the Victorian Society. [Re St. John the Baptist Bamford and Derwent [2018] ECC Der 3] [Back] [Top]

Re St. John the Baptist Hillmorton (1) [2017] ECC Cov 9 The petition proposed the reordering of the west end of the church, including: adding a ceiling to the vestry; replacing the current extension with a larger extension containing two toilets and baby-changing facilities; removing one row of pews in the nave; and removing two pews under the organ gallery and installing in their stead a servery/kitchenette and seating area; and works in the south aisle by way of the repositioning of an effigy.

The Georgian Society and the Society for the Protection of Ancient Buildings objected to the removal of two pews from under the organ gallery. The Chancellor was satisfied that any harm caused by the proposed works to the church’s special significance was only moderate, and he granted a faculty. He noted [20]:

“The Georgian Group is somewhat dismissive of the need for an “eating area”. In my judgement that view fails to appreciate what is necessary if the church is to carry out its work in the modern world. The provision of refreshments of at least a modest level and of space for those who have attended worship to talk to each other after the services is an important part of making the church fit for its rôle.

[Re St. John the Baptist Hillmorton [2017] ECC Cov 9] [Back] [Top]


Exhumation

Errors in burial

Re Hither Green Cemetery [2018] ECC Swk 3 The petitioner sought permission to exhume the remains of her child in order to have the remains cremated; she then wished to keep the cremated remains at home. The funeral had involved a humanist ceremony, but inexplicably, the remains had been buried in a consecrated part of the cemetery. At the time, the child’s parents were unaware that the grave was in consecrated ground. The petitioner subsequently regretted the interment and had found the situation difficult to come to terms with.

The Chancellor reviewed the law and guidance on exhumation [12 to 20] and noted that It is a short step from permitting exhumation following an “operative mistake” to permitting it in circumstances more generally where a person does not know that the land is consecrated or does not appreciate the legal effects of consecration, as in the instant case. He also addressed the issue of the Human Rights Act 1998 [21], commenting:

“It will be seen that where the effect of refusing permission for exhumation in circumstances where the petitioner did not know that the land was consecrated and the refusal of permission would be to prevent the manifestation of belief, a Court may hold that Articles 8 and 9 would be infringed…”

In the present case, the desire to keep the cremated remains at home was contrary to what has been considered appropriate by the Christian culture in England over many hundreds of years. However the Chancellor commented:

“I do not think that it is appropriate for me to seek to impose on her a particular way of looking at things and of treating [the deceased’s] remains. Having accepted that there exist exceptional circumstances, I do not think it is appropriate not to permit exhumation on this basis of what is to happen to the remains thereafter; and if I were to seek to do so an issue would evidently arise under Article 9. In this regard, it seems to me that the important point is that it is evident that, if a faculty be granted, [the petitioner] will treat the remains with respect”.

 Faculty granted.  [Re Hither Green Cemetery [2018] ECC Swk 3] [Back] [Top]

Other

Re Lambeth Cemetery [2003] Charles George Ch. (Southwark) In 1985 the petitioner’s young sister’s body had been buried in a consecrated part of Lambeth Cemetery. The family are Italian Roman Catholics, and when the burial took place they had no understanding of the significance of burial in consecrated ground, and it had been the intention of the parents after ten or so years to return to Southern Italy and take their daughter’s remains with them with a view to reburial in an above-ground mausoleum in South Italy, where that form of burial is common.

The family’s plan to return to Italy changed, but in 1998 a new mausoleum was opened at Streatham Park Cemetery, and since then it had been much used by the Italian community. The petitioner wished to move his sister’s body to the mausoleum. The Chancellor granted a faculty, on the basis that at the time of burial there had been a mistake in the family’s understanding of the nature of, and the consequences of, interment in consecrated ground, which had not been explained to them. [Re Lambeth Cemetery [2003] Charles George Ch. (Southwark)] [Back] [Top]

Following a request to the ELA for a copy of the above judgment which was not then available to it,  the Chancellor who dealt with the case (now the Dean of Arches) very kindly supplied a copy. 

Re St. Thomas Worting [2018] ECC Win 4* The Chancellor refused to grant a faculty for exhumation. The petitioner wished to exhume the recently interred cremated remains of her husband from the churchyard and reinter them in her garden. The petitioner said that she had had differences with the vicar and for that reason she found it painful and distressing to visit her husband’s grave. The Chancellor commented:

“[6]. As I indicated to [the petitioner] in correspondence from the registrar, I might be prepared to treat such a pastoral breakdown as evidence of exceptional circumstances which would permit exhumation and reinternment of the ashes elsewhere (although I would be somewhat reluctant to do so).

However, I will not take that course where there is no proposal to re-inter the ashes in consecrated ground or even a local authority cemetery. To do so would remove the ashes from a situation where they are subject to the protection of this court and the presumption of permanence in Christian burial, to a situation where they are not. This would be to undermine the permanence of Christian burial which I am required to protect”.

The Chancellor did not regard the circumstances sufficiently exceptional to justify the grant of a faculty. [Re St. Thomas Worting [2018] ECC Win 4] [Back] [Top]

Re All Saints Allesley (1) [2018] ECC Cov 7 The petitioner wished to have his father’s cremated remains exhumed from Allesley churchyard and reinterred in the churchyard of Willoughton, where he now lived and where his mother’s cremated remains had been interred. During her lifetime, the petitioner’s mother had expressed a wish not to be buried next to her husband’s grave at Allesley, but at Willoughton. Applying the principles laid down in Re Blagdon Cemetery [2002] Fam 299, the Chancellor found that this was a case where there were insufficient exceptional grounds to warrant the grant of a faculty. However, the judgment was set aside when it became apparent that there had been some confusion over the provision of further representations in accordance with directions that had been made, see subsequent case. [Re All Saints Allesley [2018] ECC Cov 7] [Back] [Top

Re All Saints Allesley (2) [2018] ECC Cov 10 The Chancellor of the Diocese had previously given a judgment on the same facts as the present case (see Re All Saints Allesley [2018] ECC Cov 7), supra, but the judgment was set aside when it became apparent that there had been some confusion over the provision of further representations in accordance with directions that had been made.

The Deputy Chancellor considered the matter afresh. He refused to grant a faculty to authorise the exhumation of the cremated remains of the petitioner’s father for re-interment next to the remains of the petitioner’s mother in a parish in another diocese where the petitioner lived: ‘… in reality this is a change of mind based upon a change in family circumstances … unfortunately those changes in their Family life do not amount to the exceptional circumstances that would be required to justify exhumation …’ [Re All Saints Allesley [2018] ECC Cov 10] [Back] [Top]


Churchyards and burials

Development of churchyard

Re St. John the Baptist Hillmorton (2) [2017] ECC Cov 1 The Chancellor granted a faculty for a single collective memorial on which could be recorded up to 120 names of those interred in the area for cremated remains of the churchyard. The Chancellor permitted a large stone of honed granite with three dark granite tablets. He would not normally have permitted such stone for a individual memorial in the churchyard of a sandstone church surrounded by mostly sandstone memorials. But he accepted that sandstone is much less durable than granite. Inscriptions would remain durable for longer on a granite tablet to which inscriptions would be added over a period of many years. Also, the memorial would not be close to other memorials in the churchyard and any adverse effect on the overall appearance of the churchyard would be minimal. [Re St. JtB Hillmorton [2017] ECC Cov 1] [Back] [Top]

Churchyard Regulations

In the Matter of Margaret Jane Moore [2018] ECC Bir 2 The petitioner wished to erect a memorial on his wife’s grave. The proposed design included a design of a rose in gold, red and green, and the petitioner had, through his daughter, sought help from his MP who in turn wrote to the Bishop of Birmingham. The Chancellor noted [5]:

“In the particular circumstances of this case I am satisfied that the Petitioner has to a certain extent been misled by what has gone before. I have discussed the matter with the Bishop of Birmingham and have come to the conclusion that in this particular instance I am prepared to allow gold lettering on the gravestone and to allow the image of a rose to be placed as a “divider” but upon the condition that the colour of the rose shall be gold”.

Faculty granted.  [Re Margaret Jane Moore [2018] ECC Bir 2] [Back] [Top]


Cathedrals Fabric Commission for England, (CFCE)

Determinations

At its meeting on 19 July 2018, the CFCE considered the following applications.

At the Commission’s meeting on 13 September 2018, it considered the following new applications.


Environmental Permit


Links to other posts

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

General/Miscellaneous

[Top]


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 neutral citation in the title will link to the L&RUK summary of the case.
  • “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.

Links to the Ecclesiastical Law Association web site

Following the catastrophic breakdown of its host’s server and the loss of the material on the site and on the back-up, the task of rebuilding the ELA website is continuing, There were 500-600 consistory court judgments and summaries on the old website, and these now have to be reinstated. The judgments reviewed in this post are now on the L&RUK site; this will probably be the future modus operandi for new judgments and we are in discussion with the ELA on how best to provide access to past cases for which the former URL will no longer be effective.

[Top]

Cite this article as: David Pocklington, "Ecclesiastical court judgments and related issues- September" in Law & Religion UK, 4 October 2018, https://lawandreligionuk.com/2018/10/04/ecclesiastical-court-judgments-and-related-issues-september-2/

Leave a Reply

Your email address will not be published.