Ecclesiastical court judgments – June

Review of the ecclesiastical court judgments during June 2019

Following the loss last September of the Ecclesiastical Law Association website and its backup, the site has now been rebuilt the site and all the judgments, new and former) uploaded – a total of 684. An alphabetical list of all consistory court judgments is now available on the ELA web site, with links to case summaries and the full judgments. This information (as of 3 June 2019) has also be circulated to Diocesan Registrars, Chancellors and others, who are requested to forward copies of judgments which are not currently included. However, we will continue to hold copies of new judgments on L&RUK.

Our Round-up for 16th June reproduced the clarification of the role of the archdeacon in relation to List B faculty applications from the May 2019 Archdeacons’ News.

June’s consistory court judgments have included:

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


Reordering, extensions & other building works

[top]

Substantial reordering

Re St. Peter Stoke Upon Tern [2019] ECC Lic 3 The proposed works to the Grade II church involved a “a significant remodelling” of the gabled, timber-framed porch [1]; the porch has a panelled door surmounted by a glass tympanum which are not original features and which were added in the Twentieth Century [2]. The proposed works involve repairing damaged and decayed stonework and a significant remodelling of the porch. The footprint and overall shape of the porch are to remain unaltered and elements of the current structure are to be retained; however, the glazing and timberwork arrangements are to be altered [3].

There was no response to the public notice; Historic England expressed a preference for the porch being rebuilt close to its original design, but was prepared to defer to the Diocesan Advisory Committee [10], whose only reservation was the proposed curtain heater over the door [11]. However, the Victorian Society set out the strong objections that the works would involve the demolition of a “principal element” of the listed building, as the design would be so different from the original porch. However, the Society’s observations “[were] not informed by actual inspection of the church or the porch” [15]. The Chancellor noted [emphasis added]:

“[15]. …The absence of a site visit does not automatically reduce the weight which is to be accorded to the representations of the Victorian Society or any other amenity society. However, in this particular case the location of the church and the use to which the porch is being put are of significance and in the absence of a site visit I have concern that the Society has not taken full account of those matters. I also note the heightened language used by the Society in its submissions. That language is to be contrasted with the markedly more nuanced and balanced approach taken by Historic England and summarised above. The language used in the Victorian Society’s submissions is suggestive of a disproportionate reaction to what is proposed.”

The Society also criticized those who have the care of the church in their failure of maintenance and repair in the past – an oversimplification which the Chancellor rejected [17]. In granting the faculty, Chancellor Eyre said:

[20]. It is clearly appropriate that those modifications which are necessary to make the church readily accessible to those with mobility difficulties should be permitted. There can be no real question that the original design should be altered to the extent that such alteration is necessary to facilitate that access. The core question here is whether the benefits from the lighter and more comfortable internal arrangements which would result from the proposed glazing outweigh the harm to the church’s special significance resulting from the change to the design of the windows and the related changes.

The matter is finely balanced and I am conscious of the presumption against proposals adversely affecting the character of a listed church. However, I am satisfied that the balance is tipped in favour of permitting the proposals by the fact that the church is in an isolated location which makes it appropriate for the body of the church to be kept locked. In those circumstances the porch plays an important part in the mission of the church by providing a place for prayer, for reflection, and for giving information about the work and activities of the local church. Enabling that rôle to be performed well is an important matter. I am satisfied that the proposed works will have the benefit of improving the extent to which the porch fulfils that function. That benefit is real and important and it outweighs the modest impact on the church’s special significance which will result from the change in the glazing and timber arrangements and the related works.

 [Re St. Peter Stoke Upon Tern [2019] ECC Lic 3] [Back] [Top]

Other building works, including re-roofing

Re St. Mary Melton Mowbray [2019] ECC Lei 3 Chancellor Blackett-Ord granted a confirmatory faculty for unauthorized restoration work to the 17th-century painting of the Royal Coat of Arms, which had been undertaken by a non-specialist. The archives of the Church revealed that in 1951 the Royal Coat of Arms had been taken down and sent to the College of Arms for restoration, where it was found to have a previous date of 1634, and that “Embedded in the woodwork were shot holes and it was assumed that it had been used for musketry target practice during the Civil War” [7].

However, he noted, “the references to Cromwellian musketry may reflect a general lack of careful consideration to the history of this very interesting object”. It was “plainly impossible for Cromwellians to have been shooting at a board that was painted in 1682”, and “the bullet-holes are mere pellet-holes and none is the size of a hole that would have been made by a musket ball”. His own guess was that “the holes are in the form that would have been left by lead shot fired by an enthusiastic sexton at the birds which we know were in the habit of making use of the top of the board for non-liturgical purposes” [12, 13]. He noted:

“[16] It is unfortunate that the opportunity was not taken for a specialist examination of the board before the present works were embarked upon. Such an examination might have answered these questions, and given consideration to whether the board should on the one hand be repainted, or on the other hand conserved but in its present rather tatty appearance.”

Whilst not blaming the conservator, he did criticize the PCC for “failing to have a proper investigation of this very interesting board before any works were done to it, and for failing to give clear instructions to [her] as to what she was meant to be doing”. The PCC was fortunate that a petition was granted, albeit “with some hesitation”. [Re St. Mary Melton Mowbray [2019] ECC Lei 3] [Back] [Top]


Exhumation

Errors in burial

Re St. Nicholas Charlwood [2019] ECC Swk 2 The petitioner sought a faculty for the exhumation and cremation of the body of her mother; a declaration was signed by the petitioner and the other next of kin signed a declaration, stating their full agreement to the proposal the body to be taken to the Surrey and Sussex Crematorium for cremation and the scattering  of the cremated remains in a garden [4]. By an undated letter, the Priest-in-Charge of St Nicholas, Charlwood, confirmed that, having spoken to the churchwardens and various members of the PCC, there would be no objection to the Petition from the church. Whilst there is no formal resolution to this effect, the Deputy Chancellor took this as sufficient evidence of the Parish’s consent to the Petition [3].

The petitioner’s mother died in a motor accident in 2000; her father had been in a state of shock such that he had left it to a family friend to arrange the funeral. Notwithstanding that the father and his three daughters were all atheists, the family friend arranged for burial in the consecrated churchyard at Charlwood. Each member of the family had never been happy with this and had only recently found it possible to discuss the matter together. They now wished the mother’s body to be exhumed and cremated, and the ashes scattered elsewhere [5].

The Deputy Chancellor considered in turn the guiding principles laid down in Re Blagdon Cemetery [2002] Fam 299 [26 to 29] and concluded that this was an exceptional case where exhumation should be allowed:

” … I am persuaded that there was a fundamental mistake of intention in this case … For a family of conscientious atheists, Christian burial was not the right choice. The daughters have tried very hard to honour and make sense of their mother’s memory through the medium of her grave, but they reached a point whereby the thing which should provide some solace was doing the opposite.”

[Re St. Nicholas Charlwood [2019] ECC Swk 2] [Back] [Top].

Other

Re St. Michael & All Angels Adbaston [2019] ECC Lic 4 The petitioner’s father died during the severe winter of 1980/81, where temperatures in the area fell to -27 deg. C and there was up to 6’ of snow on the ground which was frozen for many weeks. The vicar’s pragmatic advice was that the best way of effecting an interment within a reasonable period after the deceased’s death was for there to be a cremation rather than a burial, because any interment of cremated remains would be in a smaller space and at a lesser depth then if there were to be a burial [5]. The petitioner’s mother died in June 2018, aged 102, and in accordance with her wishes her body had been buried in the churchyard.

The petitioner now wished to have her father’s ashes exhumed and interred in her mother’s grave. The Chancellor observed that these circumstances changed the position, which otherwise would have precluded the granting of a faculty: the family acted properly in seeking to effect the interment expeditiously after the death; they
consulted the incumbent of St. Michael’s and acted in accordance with his advice. That advice was given in the particular circumstances of the severe weather conditions. The Chancellor was satisfied that the remains would not have been interred in the way or at the location they were but for those severe conditions which precluded burial elsewhere in the churchyard [6].

In granting the faculty, Chancellor Eyre stated [8]:

“The circumstances in which [the] remains were interred combine with the fact that the purpose of the proposed exhumation is to unite his remains with those of his widow elsewhere in the same churchyard to mean that this is an exceptional case in which exhumation can be justified”.

[Re St. Michael and All Angels Adbaston [2019] ECC Lic 4] [Back] [Top]


Organs

Re St. James Heckmondwike [2019] ECC Lee The petitioners sought to remove the existing organ console, without making any changes to the oak organ casing or decorative pipes, and install of an electronic organ in the same location with speakers mounted behind the organ display pipes; a clergy vestry and store would be created in the space made available by the removal of the organ works. The current pipe organ (built in 1878) has been effectively out of use for 25 years, with hymn accompaniment for the “modest congregation” provided by recorded music, which is in itself inadequate to meet the needs of the congregation (and often fails). Apart from an occasional singing group, there has been no choir for many years, and visiting organists have reported the organ to be very difficult to play. The cost of restoring the organ is prohibitive (somewhere between £70,000 and £100,000 is the conservative estimate) and the Church members have no enthusiasm for such a large fundraising effort when other missional objectives are considered of much greater relevance [2].

A report was prepared by the Diocesan Organ Advisor, which stated “the organ contains some good quality pipe work and is solidly built. If restored it would . . serve the Parish well for a good number of years. The question is, at what cost?” There were no faults with the instrument, although when the manuals are coupled the tracker action is very heavy and makes playing exceptionally difficult. In view of the lack of maintenance, restoration is required [3]. The Diocesan Advisory Committee recommended the proposed works, including disposal of the pipe organ and retention of the original organ case with decorative pipes; however, there was no recommendation made for any of the amenity societies to be consulted and it was not thought appropriate to recommend that the Church Buildings Council be invited to comment on the proposals [5].

There was no response to the public notice itself, although as a result of the organ a premature/ presumptuous advertisement for disposal on at least one website, objections were received by email from Simon Walker, Chair of the Historic Organs Committee of the Royal Canadian College of Organists; there was also uninformed criticism by the “Facebook organist community” of PCC members “by people who clearly had not seen the documentation in this matter and were reacting purely to reports about the disposal of this organ” [10]. In a robust response to one of the objectors, the Revd Karen Young said [12]:

“St James uses formal Eucharistic liturgy and favours a traditional but liberal style. We do not recognise the terms ‘Nuts’, ‘Dumwits’ [sic] or even ‘Evangelical loons’ as mentioned on the organists’ Facebook page. As a PCC, we rely on the Faculty system and DAC advice to ensure a sense of proportion in these matters”

There was a further objection from the British Institute of Organ Studies [BIOS] which raised a formal objection “to any proposal that would include the removal of the organ but the retention of the carved façade/case and the pipes contained therein” [14]. However, 

[15]. As with [the other objection] it did not appear that BIOS had seen the report from the organ advisor, nor was the writer apparently aware of the history of the façade to this organ, and no-one on behalf of BIOS had seen, inspected or played the organ, nor – apparently – spoken with anyone who had seen, inspected or played the organ.

Deputy Chancellor Glyn Samuel subsequently noted, that the assertions of Mr Walker and Mr Hayden of the BIOS were each based upon supposition that the organ is of historical significance because it was made by Brindley and Foster, whose work is usually very fine. However, this particular organ was changed by Binns and later altered by an unnamed work in the 1980s [27].

In view of the non-involvement of the CBC by the DAC, the Deputy Chancellor used his discretionary powers (rules 9.7 and 9.8) and formally requested advice from Church Buildings Council; the CBC “swiftly…dealt with matters, arranging a formal viewing and inspection of the organ and preparing a concise but informative report on the organ in question and the proposal made by the Parish” [18]. The report is summarized in paragraphs 19 to 22, which in addition to commenting on the organ, included “some justifiable criticism that the statement of significance and the statement of needs did not adequately address issues of importance to this faculty application” [22] .

Applying Re St. Alkmund, Duffield [2013] Fam 158, as subsequently considered in Re St. John the Baptist Penshurst [2015] Court of Arches (Rochester), the Deputy Chancellor was “particularly assisted” by the two expert reports that have been prepared, by the representatives of Church Buildings Council and by the Diocesan Advisory Committee organ adviser in determining the potential harm the character of the church as a building of special architectural and historic interest [26].

Noting the absence of any mention of the organ in the historic listing of the Church, and the opinion expressed on behalf of CBC,  he concluded that removal of this pipe organ will not cause harm to the character of this building. However, he supported the contention of both BIOS and Church Buildings Council that an alternative location for the pipe organ must be sought [27]. It was “absolutely clear” that  to remove the organ casing/façade so that it can remain with other parts of the organ would cause substantial harm to the character of the church as a building of special architectural and historic interest. The organ case/façade is not a part of the original installation of the instrument. However, the organ case/façade does match very closely the other fine carved woodwork in this church and was commissioned of the same artist [28].

Based upon the written material, the Deputy Chancellor concluded that the proposed scheme does not cause harm to the significance of the church as a building of special architectural or historic interest. He also supported the Parish proposal to create a vestry with storage space above [28]. However, the permission to remove the pipe organ will be conditional upon the Parish seeking and finding a suitable recipient for this organ and that all works of removal must be supervised by a professional organ contractor [29], for which an extendable period of three years was allowed [32]. The Parish was also encouraged to seek an alternative location to behind the current organ case/façade for the speakers. [Re St. James Heckmondwike [2019] ECC Lee] [Back] [Top]


Links to other posts

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

Churchyards/Burials

General/Miscellaneous


CFCE Determinations

The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. This also includes the applications that the commission examined, View form 8s, the decisions made by the commission, View form 10s. The last meeting of the CFCE was on Thursday 30 May 2019 when it considered the applications here. The decisions made by the commission at the meeting on 31 January and 28 March are here and here. The next meeting will be on18th July.


Notes on the conventions used in these posts are summarized here.

Cite this article as: David Pocklington, "Ecclesiastical court judgments – June" in Law & Religion UK, 2 July 2019, https://lawandreligionuk.com/2019/07/02/ecclesiastical-court-judgments-june-3/

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