Ecclesiastical court judgments – March (Part 2)

Review of the ecclesiastical court judgments during March 2019

This second part of our round-up of March’s consistory court judgments includes:

and links to other posts relating to ecclesiastical law.

Part 1 which was posted on 30 March included reviews of judgments on Reordering, extensions & other building works, and Exhumation.


Churchyards and burials

Development of churchyard

Re St. Mary the Virgin Goosnargh [2019] ECC Bla 2 With the approval and support of the Team Rector and churchwardens, the Chair of the Church Fabric Committee sought a faculty to allow an extension to the existing churchyard path, in order to facilitate access to an existing wooden bench in wet weather when the ground becomes very wet. The petition was supported by the PCC and recommended for approval by the DAC. The local planning authority had no objection. There a single letter of objection from a family with a recent burial in this area, suggesting that the path might increase the waterlogging. However, the Deputy Chancellor granted a faculty subject to conditions. [Re St. Mary the Virgin Goosnargh [2019] ECC Bla 2] [Back] [Top].

Churchyard Regulations

Re St. Alban Wickersley [2019] ECC She 3 The incumbent and churchwardens wished to remove from the churchyard a headstone which had been introduced in December 2016 as a memorial to the mother and sister of the party opponent. A memorial had been erected in 1974 when the mother died. In 2016, when the daughter died, the stonemason submitted a memorial application in the standard form for a replacement memorial, which the incumbent approved. In due course the stonemason installed a memorial which was not in accordance with the approved application, and which had a number of features which were outside the churchyards regulations.

The Chancellor, The Worshipful Sarah L Singleton QC, ordered that the memorial should be removed and, as agreed between the stonemason and the party opponent, replaced by a new memorial at the expense of the stonemason. The stonemason was ordered to pay part of the Diocesan Registry costs and part of the party opponent’s solicitors’ costs. She concluded her robust judgment saying:

“[11]. … Unfortunately, the stark facts of this case could not simply be ignored. Incumbents seeking to uphold the Chancellor’s churchyard rules when exercising the discretion delegated to them cannot be left in the position where they are misled and unsupported. Monumental masons must know that the rules will be enforced and also that paperwork must be accurate; the costs of putting matters right can and will fall upon them if the rules are ignored or applications are not accurately completed.”

“An unfortunate matter” indeed.

[Re St. Alban Wickersley [2019] ECC She 3] [Back] [Top]

Re St. James Bulkington [2018] ECC Cov 8* The Deputy Chancellor did not approve the memorial design as proposed by the petitioner, as many aspects lay outwith diocesan churchyard regulations. In response to the communication with the petitioner, “he sent to the registry a two-page document together with 112 photographs of other memorials in the Churchyard at St James (not photographs of 112 different memorials but 112 photographs with which to illustrate his arguments)”. In declining to grant a faculty, the Deputy Chancellor stated:

“[19]. By reason of the matters set out above, the faculty as requested will not be granted. However, I have found that it would not be inappropriate to grant a faculty for a memorial to [the petitioner’s wife] …

… A faculty for a memorial will be granted if it complies with the matters set out above. In order for the faculty to be granted the petitioner must within thirteen weeks (or such other extended reasonable period as is agreed with a representative of the diocesan registry, but no more than thirty weeks from now) submit a revised design for the proposed memorial that has been agreed with the Incumbent of Bulkington St James and, if the incumbent considers it appropriate, or in the case of an interregnum, by a simple majority of the Parochial Church Council. The revised design will then be returned to this Court for ratification”.

[Re St. James Bulkington [2018] ECC Cov 8] [Back] [Top].

Reservation of grave space

Re St. Benedict Biscop Wombourne [2019] ECC Lic 2* In 1953 a faculty was granted to the petitioner’s grandfather to permit the erection of a memorial and the creation of a vault, reserving to the petitioner’s grandfather and the members of his family the right of burial in the vault. The present petitioner’s grandparents and other deceased members of the family had since been buried in the vault. There were six shelves in the vault, of which four had been used. The petitioner wished to reserve the remaining two shelves for the burial of himself and his fiancée. The churchyard was closed by Order in Council in July 2003 but that order permitted burials in existing vaults and in the graves of family members elsewhere in the churchyard [5].

The petitioner’s cousin objected to a faculty being granted on the grounds that the reservations would prevent any further members of the family (who might predecease the petitioner and his fiancée) from being placed in the vault, and because she believed (incorrectly) that the terms of the original faculty limited the right of interment to direct descendants only.

This was essentially a family matter [8 to 11], and no other parties expressed any interest; there was no response to the public notice, and the incumbent and the PCC stated that they had no objection of their own to the proposal, provided it is acceptable to the other family members.

In a compromise suggestion, the petitioner had proposed that he and his fiancée should both agree that they should be cremated on their death; the cremated remains of whichever of them died first should then be retained and that on the death of the survivor, the remains of both should be combined in the same container and placed on a single shelf in the vault [11]. The Chancellor noted that he had not been referred to any authority dealing with the question of the reservation of spaces in a vault nor had his own researches revealed any decision precisely on the point. He therefore approached the matter by reference to his understanding of the generally applicable principles [12].

The Chancellor refused to grant a faculty, but directed that (a) a person who married into the family would be eligible to be buried in the vault; (b) an interment should be treated as including the placing of cremated remains in the vault; and (c) if “space remains on any given shelf for the seemly custody of the cremated remains of more than one person then it is permissible for there to be such remains of more than one person on each shelf in the vault.” [Re St. Benedict Biscop Wombourne [2019] ECC Lic 2] [Back] [Top]


Organs

Re St. Bartholomew Orford [2018] ECC SEI 3 The existing organ at the church was installed in the 1830s as a temporary measure after the original organ had been damaged as a result of the collapse of the west tower. However, whilst “adequate to accompany a choir” (the church has a respectably-sized choir of twenty four choristers), it was now deemed “unsuitable to perform the vast body of organ and choral music” [2].

In 2017 the PCC voted in favour of accepting the gift of a 1977 Peter Collins organ from Southampton University; “there is no dispute that this is a fine instrument and one which would enhance any church or other music venue. As the petitioner identified, if they fail to take up this offer, there is little likelihood of a comparable organ being offered to this generation” [2]. Although offered without cost, the DAC estimated that its installation would cost £60,000 to £100,000, and had concerns regarding its size and modern casing. English Heritage had reservations about the proposed organ, but the Church Buildings Council supported the project.

The Deputy Chancellor considered the impact of the organ, following the guidance in Re St. Alkmund, Duffield [2013] Fam 158 and Re St. John the Baptist Penshurst [2015] Court of Arches (Rochester) [28]. He concluded that the introduction of a 20th century organ case would result in harm to the significance of the church as a building of special architectural or historic interest, but the harm that would be caused would not be serious; the organ is freestanding and, at least in theory, could be reversed without causing any damage to the building [32]. He judged that there was a clear and convincing justification for its installation, although “whether it will produce additional funds for the church, or whether it will do no more than pay for itself, only time will tell” [34]. He ooncluded:

“[36]. St Bartholomew’s Church needs an organ suitable to its size and its ambitions. They have been offered an organ which may not be perfect in every particular, but the chances of the church being offered anything remotely suitable in the foreseeable future are negligible. This provides a reason why I have considered this application with care.

[37]. In coming to the conclusion that I shall issue a faculty, I am acutely aware that the DAC felt unable to recommend its installation. I have not taken the decision lightly, and I have had in mind that there is no purpose in having a Consistory Court to make the final determination if it does no more than to confirm on every occasion the decision of the DAC.”

[Re St. Bartholomew Orford [2018] ECC SEI 3] [Back] [Top]

Re St. Giles Skelton [2019] ECC Yor 5 The petitioners, the Priest-in-Charge, Churchwarden, and (present) organist sought permission to replace the existing pipe organ with an electronic organ. The removal of the pipe organ was the first step in a planned programme of re-ordering; members of the DAC considered the reports on the organ &c, and briefly discussed the wider scheme. The Committee then recommended the proposals with a proviso that the positioning of the digital speakers should be agreed between the Church Buildings Adviser and the petitioners [2].

The matter was referred to the Chancellor on the Online Faculty System. He considered the material which included a letter from Historic England in which it indicated that they had no objection to the removal of the pipe organ. There had been no response from the Victorian Society within the relevant time period and so they were deemed not to be objecting. Having considered all the material the Chancellor declared he was satisfied that the petitioners had made out a case for their proposals and directed that, subject to no objections being received following Public Notice, a faculty would issue [3].

A letter of objection was received from a former organist at the church, who argued that the small instrument was ideal for the size of the church and, with minimal maintenance, had been working well for approximately 130 years; there was no reason why the organ should not continue to be effective for another 100 years; the life of an electronic organ, he claimed, rarely exceeds 20 years [4].

On the basic question as to whether there is a case made out for replacing the organ, the Chancellor was satisfied that the various reports dealt with a number of the issues raised by the objector, but they did not deal with the underlying argument that any introduction of a digital organ is to be eschewed as short-sighted [11 to 14].

The tests that the Chancellor needed to apply were to consider: whether the petitioners have made at a case for the proposal; whether the proposals, if Implemented, would result in harm to the significance of the church as a building of special architectural or historic interest; and if they would, then there would be a number of other issues for to consider [10]. Chancellor Collier referred to his judgment in Re St. Nicholas Guisborough [2018] ECC Yor 6 in which he said:

“[37]. The next step is that there is no principle of law requiring that it be replaced like for like with a pipe-organ. However, there is a presumption that the starting point should be to replace a pipe-organ with a pipe-organ but that that is a presumption that can be rebutted.

“[38]. If they are to rebut the presumption the petitioners will need not only to give an account of the “wishes, needs, and resources of the parish in question” but will also need to show that they have considered the merits and demerits of any alternative proposals, Including those suggested by the DAC, and taking account of the comparative costs involved. In particular they will need to show that their preference for an alternative to a traditional pipe-organ follows careful and reasoned consideration after detailed and informed research. In just the same way the Chancellor must gave regard to the advice of the DAC but is not bound to accept it if there are good reasons for not doing so”.

In allowing the petition, the Chancellor indicated that he was satisfied that the petitioners have made out a case for their proposal; also satisfied that the loss of the organ will not be significant in terms of history or architecture. Finally he did not find that any of the arguments advanced by the objector whether taken singly or together overcome those advanced by the petitioners in favour of their proposals [18].  [Re St. Giles Skelton [2019] ECC Yor 5] [Back] [Top]


Links to other posts

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

Telecommunications

Exhumation

General/Miscellaneous

[Top]


Notes on the conventions used in these posts are summarized here

Cite this article as: David Pocklington, "Ecclesiastical court judgments – March (Part 2)" in Law & Religion UK, 2 April 2019, https://lawandreligionuk.com/2019/04/02/ecclesiastical-court-judgments-march-part-2/

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