Ecclesiastical court judgments – October 2018

Review of the ecclesiastical court judgments during October 2018,

This month’s consistory court judgments have included considerations of:

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

 

Reordering, extensions & other building works

Substantial reordering

Re St. Thomas Trowbridge [2018] ECC Sal 1 The Grade II church was partly conceived as a ‘low church’ alternative to the ‘higher’ form of worship found at the adjacent St James’ church, and this liturgical tradition is reflected in the design of the building [1]. The somewhat terse Pevsner entry for the church described it as “[a]n original design certainly, but just a little nightmarish.” The Listing Entry is rather more fulsome in its detail, including the chancel furniture considered in the instant judgment [16].  The incumbent and churchwardens petitioned for a faculty permitting a substantial re-ordering of the interior of the church including: replacement of the remaining pews and some green upholstered chairs with metal framed chairs upholstered in neutral-coloured fabric; the lowering of the timber pew platforms to create a level floor in the nave; the removal of some of the chancel furniture; new lighting and audio-visual equipment; and various repairs [2].

Much of the work proposed is “accepted by all concerned to be appropriate, or at least acceptable” and the Chancellor focus my attention on the two areas where concerns have been raised and where there is a lack of consensus, viz, the replacement of the seating; and the changes to the chancel flooring and furnishings [4].

The Worshipful Canon Ruth Arlow expressed her concern that the fragmentation of the set of chancel furniture – the retention of the pulpit, font, altar and bishop’s chair alongside the disposal of the lectern, reader’s desk and altar rails – would be harmful, although not seriously so; she commented “[I]t is a fine and striking set which is original to the church and lends the chancel and sanctuary a particular dignity” [20].

“[22]. Where I find the justification provided less convincing (i.e. in comparison to that relating to the seating [21]) is in relation to the disposal of the chancel furniture – namely the lectern, reader’s desk and altar rail…[t]he loss of the rail will not cause harm and will greatly improve the uses to which the chancel can be put.

“23. The lectern and reader’s desk are, however, clearly part of the church’s noteworthy set of liturgical furniture. Their loss would cause some, albeit slight, harm. Unlike the altar rail, I cannot see that the presence of the lectern and reader’s desk in the chancel will significantly affect the manner in which the area can be used for worship…I do not think that there is a clear and convincing justification for the fragmentation of this significant set of liturgical furniture and the lectern and reader’s desk must remain. Though they may not be in use by the current congregation, future generations may wish to bring them back into use”.

She noted that the ecclesiastical courts have established a different approach to the disposal of church property from the Duffield approach to changes to listed buildings. Clearly the lectern and reader’s desk are moveable items and therefore the Court’s approach to their disposal should be governed not by the Duffield guidelines but rather by the guidance on the disposal of church property as principally set down by the Court of Arches in Re St Lawrence, Oakley with Wootton St Lawrence [2015] Fam 27. However, the Chancellor did not consider that the Wootton St Lawrence approach would provide a different result to that which would come from the application of the Duffield guidelines [24].

The Chancellor granted a faculty for the majority of the items, but was not prepared for the lectern and reader’s desk to be removed, being part of the church’s set of liturgical furniture. Finally, she also required that once the worn carpet on the chancel step had been removed, the step should remain uncovered, as advised by the DAC. [Re St. Thomas Trowbridge [2018] ECC Sal 1] [Back] [Top]

Re St. Mary Lydiard Tregoz [2018] ECC Bri 3 An extensive programme of reordering was proposed, to include: re-roofing and stonework repairs; new drains and soakaways; repair and realignment of pews; conservation of paintings and monuments; new lighting; removal of some pews; and relocation of the boiler to the churchyard, to create a vestry [1]. The plans had been 8 years in the making and were only realisable after a third application for funding to the Lottery Heritage Fund.

The DAC recommend the grant of a Faculty, subject to conditions; the Ancient Monument Society made no comments; the primary concern of the Society for the Protection of Ancient Buildings was the location of the new boiler [6]; this too was a concern for Historic England [7, 8]. However, the Church Buildings Council commented [9]:

“…the Council is deeply disturbed that funding, and the main funding body, is dictating the direction of the project, over and above the needs of the parish and building. It regrets that the mandatory requirement to consult the CBC was not done at an earlier stage of formulating an application to the HLF for the scope of work. With the advice of the Council being offered at such a late stage in the process, this has effectively disabled its impact”.

The CBC notes that the statutory guidance on when to consult the CBC is available, but is to be found here, not at the (dead) ULR in the judgment. We have noted earlier that whereas CBC guidance is issued under statutory authority it does not have statutory authority per se. Nevertheless, an early involvement of the CBC in cases such as this would seem to be prudent.

The Petitioners made a detailed rebuttal of the CBC’s trenchant criticisms, but stood by its earlier advice and did not wish to become a party opponent [11]. Having read  all of the documents with the greatest care, the very full and very extensive ‘packs’ of materials, the criticism of them by the CBC and the measured response by the petitioners, Chancellor Gau had no hesitation in rejecting the criticism of the petition made by the CBC; accordingly he had no hesitation in concluding that the answer to question 1 in Duffield above is a conclusive ‘no’, and in these circumstances granted the petition as prayed, subject to the conditions identified at paragraph 4. [Re St. Mary Lydiard Tregoz [2018] ECC Bri 3] [Back] [Top]

Removal and replacement of pews &c

Re All Saints Sanderstead [2018] ECC Swk 4 The petitioners wished to remove seven rows of pews in the north aisle of the church and replace them with some existing upholstered chairs in storage, in order to allow a more flexible use of the space. There were no objections form the DAC, Historic England or the local planning authority [3].

Whilst, the Victorian Society accepted that the replacement of the pews would not in itself be “unduly harmful”, it had greater objections to their replacement by  the upholstered chairs were not suitable for the Grade I listed church. In applying Duffield, the Chancellor noted that no-one had suggested that the pews
themselves were intrinsically of great significance: “Such harm that will arise, if any, is from the unsympathetic replacement of the pews which may impact adversely on the high significance of the interior” [21]. In answering Question 3 he stated [24]:

“I think that the harm is serious in the sense that it is significant but not serious in the sense of very detrimental. Moderate seems to me to be a good way of describing it”.

Although the justification for removing the pews and replacing them with chairs was clear and convincing, the justification for replacing them with upholstered chairs was less clear and convincing [25]. He concluded [28]:

“I have decided that the level of harm in the present case is not such that I should decline to authorise the pragmatic solution proposed by the Petitioners to the issue of the replacement of the pews, namely their replacement by chairs already owned by the church”.

Faculty granted.  [Re All Saints Sanderstead [2018] ECC Swk 4] [Back] [Top]

Re All Saints Cawood [2018] ECC Yor 5 The Vicar and Churchwarden sought permission to remove and dispose of six pews from the rear area of the church in order to establish a flexible area for use for various activities, and also to erect an additional plaque directly under the present War Memorial wall plaque in order to add ten missing names. The Chancellor had already, on application, granted an interim faculty for the memorial plaque, so that it could be completed prior to the war centenary commemorations. The Chancellor was satisfied that the petitioners had made out a case for the removal of the pews and granted a faculty.

Chancellor Canon Peter Collier QC concluded:

“17. This being an ‘opposed’ petition the petitioners will have to pay the additional costs created by this being an opposed petition”.

This is yet a further example of an ‘objection’ being raised by someone who is generally supportive of the proposals. As has been pointed out before, there are clear cost benefits to a church if uncontroversial issues such as this are avoided through better information/ pastoral involvement.

[Re All Saints Cawood [2018] ECC Yor 5] [Back] [Top]


Churchyards and burials

 

Development of churchyard

Re St. Chad Saddleworth [2018] ECC Man 2 The Chancellor granted a faculty to authorise the introduction of 8-10 sheep into one of the three churchyards of the parish, for the purpose of keeping down the vegetation. This would be at nil cost, as it was  proposed to use electric sheep fencing which had been retained from an earlier use.

The PCC is responsible for the upkeep of 3 moorland graveyards; the one under consideration dates from the late 1800s to the 1950s and is situated at a distance from the Church building. It covers approximately 3.5 to 4 acres and contains in the region of 5,500 graves. It is still very occasionally used for burials in existing graves and interment of ashes. Graves are still visited by family and others. The PCC cannot afford to pay for maintenance, nor do they have the human resources to keep the vegetation under control, consequently; understandably it receives many complaints [but, presumably, few offers of assistance]. The other two churchyards are smaller but also overgrown [3]; if successful , the experiment  will be replicated in the Lower and Old Graveyards, and enclosed in a moveable area, 25yds x 25yds, enclosed within electric sheep fencing.

Responding to an objection that “sheep will eat all the flowers”, the Petitioners stated:

“The objector doesn`t appear to understand that the flock will be enclosed within electric sheep fencing in the old graveyard, some distance from the Parish Council`s cemetery, and will be visited daily by the shepherd, or in his absence, by responsible members of the congregation. The sheep will be placed in areas, and there are many, where graves are not visited and therefore devoid of flowers”.

The sheep which had eaten flowers on the grave of the objector’s husband had escaped from a surrounding field and not the New Graveyard. Having recently visited Saddleworth for reasons unconnected with this application, the Chancellor commented that he was “well aware that it is a delightful rural area where the escape of sheep from fields is, in reality, a hazard of everyday life”.

[Re St. Chad Saddleworth [2018] ECC Man 2] [Back] [Top]

Churchyard Regulations

Re Holy Trinity Arrow [2018] ECC Cov 11 The petitioners sought to introduce a memorial which fell outwith the Churchyard Regulations in relation to the material used, although the wording proposed “is in wholly appropriate and unexceptionable terms”; however, a faculty was required on account of the proposed type and shape of stone. However, the PCC objected but did not become a party opponent. HH Chancellor Eyre QC noted that in St Leonard, Birdingbury [2018] Ecc Cov 1 he had explained at some length his understanding of the principles to be applied in such cases.

In the instant case, the Chancellor found reasons to justify the grant of a faculty authorising a memorial of light grey Cornish granite, which is not covered by the churchyard regulations: the deceased had a connection with Cornwall; there were two Cornish light grey memorials already in the same row as the grave of the deceased, and one in the next row; and the stone was not far removed in the appearance from the majority of local stones in the churchyard. [Re Holy Trinity Arrow [2018] ECC Cov 11] [Back] [Top]

Re St. Saviour Ringley [2018] ECC Man 3 The parents of a stillborn baby sought to erect a heart-shaped blue pearl granite stone memorial measuring 27 inches by 21 inches by 3 inches on their baby’s grave. Stars were to be etched into the edge of the memorial and a heart etched underneath the proposed inscription. There were three other heart-shaped memorials in the churchyard, which had not been authorised by faculty in accordance with Churchyards Regulations, but the Chancellor decided that this did not justify him granting a faculty for a further heart-shaped memorial. Costs waives by Chancellor and Registrar. [Re St. Saviour Ringley [2018] ECC Man 3] [Back] [Top]


Links to other posts

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

General/Miscellaneous

CDM

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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 neutral citation in the title will link to the L&RUK summary of the case.
  • “Link to ELA judgment” provides a link to the relevant category of judgment on the website of the Ecclesiastical Law Association;
  • “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.

Note

The photographs used in this post do not necessarily relate to the cases discussed. 

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Cite this article as: David Pocklington, "Ecclesiastical court judgments – October 2018" in Law & Religion UK, 1 November 2018, https://lawandreligionuk.com/2018/11/01/ecclesiastical-court-judgments-october-2018/

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