Ecclesiastical court judgments – September (II)

Review of the ecclesiastical court judgments during September 2019

In September we received details of fifteen consistory court judgments. The first eight, on Reordering, extensions & other building works, were summarized in our Part I post. The remaining nine, summarized in this Part, include judgments relating to:

This summary also includes links to other posts relating to ecclesiastical law. The Ecclesiastical Law Association noted that was necessary to change the neutral citations of some earlier judgments, listed below.


Reordering, extensions & other building works

Removal and replacement of pews &c

Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3 As part of a scheme of reordering in 2011-2012, 30 red-upholstered chairs with black metal frames were introduced into the Lady Chapel of the Grade II* church in 2012 without faculty consent, and in a manner inconsistent with the confirmation as to the specification of the chairs that had been provided to the DAC by the church’s own architect [3]; the chairs do not comply with DAC or Church Buildings Council guidance; and the unanimous view of the DAC and of the amenity societies which have been consulted in relation to the faculty application are that they are not considered to be appropriate to this Grade II* listed building in terms of their design, colour and upholstered nature [4].

The churchwardens subsequently applied for a retrospective faculty to authorise the 30 chairs. The amenity societies consulted (SPAB, HE, Victorian Society) were strongly opposed to the chairs [5]. The DAC did not object to the chairs being approved by the court, subject to the proviso that they might be retained in use for a period of 5 years after the date of the faculty whilst funds were raised for suitable and appropriate replacement chairs. The DAC also noted that the chairs were currently stored in various locations around the church; and it recommended that a plan should be produced for storing the chairs when they were not in use.

The Chancellor was of the opinion that the chairs were “incongruous and aesthetically inappropriate in and to the setting of this medieval Grade II* listed building” [8]. However, he granted a faculty for the chairs, but subject to a condition that within 5 years the petitioners should apply for a further faculty for “suitable and appropriate replacement chairs which respect the interior and significance of this Grade II* listed church”. He also directed that within 3 months after the date of this faculty, a plan is to be produced by the parish to regulate the storage of the chairs in a suitable location or locations (otherwise than in the chapel in the south transept) when they are not in use [10]. [Re St. Peter & St. Paul Aston Rowant [2019] ECC Oxf 3] [Back] [Top]

Re St. Margaret of Antioch Toxteth [2019] ECC Liv 2 The petitioners sought to remove the pews from the Grade II* church and replace them with chairs from the Anglican Cathedral in Liverpool. The Chancellor,  HH Judge Graham Wood QC, specifically gave reasons for his determination since “concerns have been expressed as to the provenance of the pews, and whether or not they were installed at the time of construction, and thus of historic interest to the architecture”. His determination was further informed by a site visit to discuss with the petitioners whether or not some accommodation could be made to meet the concerns raised by the Victorian Society [1].

The church is an elaborately-decorated Victorian church, designed by Street. However, the Chancellor considered that the pews as “not in a particularly good condition, certainly not ergonomically comfortable or efficient, but certainly simple in form” [5]. The church had gone through a period of decline, but was now developing with a mission for outreach, and wished to provide a more flexible space for a number of activities, including the hosting of food banks, messy church, arts projects, plays and concerts [6].

The intention of the petitioners was that the pews should be replaced by approximately 120 chairs donated from the Anglican cathedral in Liverpool, and designed for use in worship. This would enable flexibility in the nave which cannot be achieved by the current benches; although they are movable, they are extremely heavy and time-consuming to shift [5]. [The pews in question are depicted in the new item here]

The question to be determined was whether or not the removal of what may well be original pews, albeit those which are not fixed to the floor would affect the architectural or historic aspect of the building [7]. This was “a narrow question, and clearly depends on whether the pews are those originally commissioned and designed by Street, or whether they are subsequent additions”. However, this question was “virtually impossible to resolve on the present evidence, with a divergence of opinion. Accordingly, [he] decided to err on the cautious side, and to assume that they are original Street pews”.

In relation to the Duffield questions as commended as an approach by the Court of Arches in Re St Alkmund, Duffield [2013] Fam 158,, the Chancellor commented:

“[12]Even if the first Duffield question was answered positively (which is was not, [11]), this is a case where I have little doubt that the substantial benefit which would accrue to the church is having a versatility and flexibility in the worship area for other uses, thereby generating income to preserve this old historic church easily outweighs the very minor harm which would be caused by moving the pews from the nave, disposing of the majority of them, but retaining some in the lady chapel”.

On the assurance of the petitioners that some of the pews would be retained, whether or not they are original Street pews, the Chancellor was satisfied that this is an appropriate case where a faculty should be granted” [14]. A faculty granted subject to conditions [15]. [Re St. Margaret of Antioch Toxteth [2019] ECC Liv 2] [Parish web site] [Back] [Top]

Re St. Helens Parish Church [2019] ECC Liv 3 The Parish Church of St. Helens is a very large church in the centre of the town, capable of seating 800 people. It was built in the 1920s and is listed Grade II. The petition proposed the permanent removal of 5 pews from the front of the nave and 12 pews from the rear. Authority had previously been given by Archdeacon’s Licence for the removal of the pews on a temporary basis. The reason given for the proposals was to provide more flexible space for church and community use. There were objections from local parishioners, who did not wish to become party opponents; Historic England did not wish to be involved, and no response was received from  the 20th Century Society [10,11].

Applying the Duffield questions as endorsed by the Court of Arches in Re St Alkmund, Duffield [2013] Fam 158, the Chancellor could not identify any evidential basis for harm to the architectural or historic aspect of the church building, or to undermine the need set out in the petition papers [24],

“[25]. … I do not believe that it is necessary to move on to the third of the Duffield questions. However, whether this issue is approached on the basis that the presumption of leaving things as they are is to be rebutted, or, in the event that I am wrong on the first question of harm, that any harm which may be perceived is outweighed by the need to further the mission of the church, I have little doubt that this is an appropriate case for the granting of a faculty.”

He acknowledged the real concern which the older generation, and those who have worshipped at this church for many decades will feel as they see wholesale
changes made to the worship space and the church building which to them is symbolic, and represents a heritage which must be passed on to subsequent generations. “However, there comes a time when it is necessary to acknowledge that the needs of the future generations may not always lie comfortably with those of the present” [26, 27]. No conditions were attached to the faculty.

 [Re St. Helens Parish Church [2019] ECC Liv 3] [Back] [Top]

Re All Saints Wellington [2019] ECC Lic 7 The petitioners wished to remove the front four rows of pews from the nave of the Grade II* church, in order to provide a more flexible space, particularly for services and events involving children. It was also proposed to replace the pews with upholstered chairs. The Diocesan Advisory Committee did not recommend the upholstered chairs, and Historic England and the Georgian Group held similar views. The Chancellor was satisfied that a case had been made out for the removal of the front four rows of pews, but refused to approve replacement chairs with upholstered backs, which, in the red colour proposed, would create an adverse visual impact in front of the remaining pews. [Re All Saints Wellington [2019] ECC Lic 7] [Back] [Top]


Telecommunications

Re St. Peter & St. Paul Shorne [2019] ECC Roc 4 This is a judgment relating to costs. The Vicar and Churchwardens and NET Coverage Solutions Ltd. sought a faculty to authorise the installation of telecommunications equipment at the church. There were various notices of objection, but only one objector became a party opponent. Shortly before the planned hearing date, the petitioners withdrew their petition. The party opponent claimed costs aginst the petitioners on the grounds that the petitioners had acted unreasonably. The Chancellor determined that the petitioners had, to a certain extent, acted unreasonably in the matter. He directed that the party opponent’s costs be reduced by 10% and that half the reduced amount of costs should be paid by the petitioners. [Re St. Peter & St. Paul Shorne [2019] ECC Roc 4] [Back] [Top]. [Top]


Exhumation

Errors in burial

Re Tunbridge Wells Cemetery [2019] ECC Roc 5 The case arose out of the same set of facts which concerned errors in the burial of the two petitioners’ relatives, in plots “very close to each other”, who had died within within a few days of each other in 2012. This was compounded by further errors in the placement of a temporary cross and headstone on one of the burials [4]. The errors only came to light in March 2019 when an additional interment was about to be made in one of the plots in question.

The Chancellor expressed his suspicion that these pre-interment checks were made “because of a suspicion that something was not right, as indeed was the case” [5]. He further noted “At that stage, the full facts had not emerged, though they may well have been suspected. Very sensibly, agreement was reached that a new grave plot would be excavated close by for a temporary interment, so as to enable the burial service to go ahead [6]. The Registrar of the cemetery accepted that the mistake was wholly on the part of the cemetery and/or its officials. Neither of the petitioners had done anything to cause or contribute towards what had happened [8].

The second petitioner wished to have the remains of her father exhumed, because by mistake they had been interred in the grave of the first petitioner’s father. The second petitioner’s father’s remains could then be reinterred in the same grave as the second petitioner’s mother and brother. Permission was sought to lift the coffins of the mother and brother in order to deepen the plot, if necessary, to accommodate the third interment.  The first petitioner wished to exhume his mother’s remains and have them reinterred with his father’s remains, following the exhumation of the second petitioner’s father’s remains [1]. All parties agreed to what was sought in the petitions, which was supported by the cemetery authorities [10] who stated in writing that there would be no costs implications for the petitioners; the Head of Housing, Health and Environment confirmed that the cemetery would bear the costs of and incidental to these proceedings [14].

The Chancellor was guided by Re Blagdon Cemetery [2002] Fam 299; in his judgement of the facts, he considered that a mistake has occurred, the precise circumstances of the original mistake may never be known, although he was wholly satisfied that it was an innocent one.

“[19] …All that followed flowed from the original mistake. For the avoidance of doubt, I find that it is much more likely than not that the original mistake arose out of simple human error, i.e. a mistake as to the plot. The original mistake relating to the interment of the mortal remains of [second petitioner’s father] meant that when it came to the funeral of the [first petitioner’s mother], there was no option but for her mortal remains to be interred in a grave plot other than that which was intended. Accordingly, the decision taken at the time, which was the correct one, was brought about and infected by the original mistake”.

Granting the petitions [22], the Chancellor directed that faculties are to issue as sought, subject to a number of conditions, including inter alia in respect of both petitions: the exhumations are to be effected with due care and attention to decency, early in the morning, and with the plots screened from the view of the public, and with a priest present; no coffins are to be opened in the course of the exhumations and/or re-interments; any headstones or markers which are in the wrong place after these exhumations and re-interments shall be removed and replaced on the correct plots; and The Kent & Sussex and/or Tunbridge Wells Cemetery authority must pay the Registry and Court costs of and incidental to both petitions.

[Re Tunbridge Wells Cemetery [2019] ECC Roc 5] [Back] [Top]

Other

In the Matter of SMF deceased [2019] ECC Lee 4* This judgment has been anonymised, to protect the family of the petitioner. In 2003, the petitioner’s husband died aged 38, leaving the petitioner with two children, a son then aged 14 and a daughter aged 7. The basis of the petition was that the deceased’s daughter, now aged 23, wished to have a ring made from the deceased’s ashes, as a special memento which might help to ease the grief of losing her father. This would involve exhuming the ashes and taking a spoonful of ashes to be converted by an industrial process to form a stone, which would be placed in a ring setting. The remaining ashes would be reinterred in the original grave. The deceased’s widow (the petitioner) and the deceased’s surviving parent (his mother) supported the proposal. Whilst expressing sympathy for the family, the Chancellor determined that, bearing in mind the relevant legal and doctrinal principles relating to exhumation, as summarised in Re Blagdon Cemetery [2002] Fam 299 and other cases, he could not find in this case exceptional circumstances which would allow him to grant a faculty. [In the Matter of SMF deceased [2019] ECC Lee 4] [Post] [Back] [Top]


Churchyards and burials

Churchyard Regulations

Re St. Denys Stanford in the Vale [2019] ECC Oxf 1 The petitioner wished to re-locate the headstone at the grave of her son by a small distance sideways, so that it would be aligned with what she believed to be the centre of the head of her son’s grave. The vicar and churchwardens objected on the grounds that (1) realigning the stone would make it stand out amongst other stones in the churchyard with which it would not be in line; (2) headstones were aligned with those in rows behind them “for dignity, and creating an orderly environment”; (3) the petitioner had agreed in writing to the headstone being aligned with the stones behind; and (4) allowing the petition would be seen as creating a precedent. The Chancellor did not consider the first and fourth objections as carrying much weight, but that the second and third objections did. The vicar was entitled to require such uniformity of alignment of monuments as he thought fit, within the parameters of the churchyard regulations, and the petitioner had agreed in writing to the monument being placed where it was, even if there had been a mistake in understanding on her part. The Chancellor accordingly refused to grant a faculty. [Re St. Denys Stanford in the Vale [2019] ECC Oxf 1] [Back] [Top]

Trees

Re St. Peter West Blatchington [2019] ECC Chi 4 The churchwardens sought a faculty to authorise the felling of a Scots Pine. Two adults had recently been hit by falling pine cones, and there was a concern for the safety of children who used the footpaths next to the tree for access to pre-school events or the Sunday school. Two objectors (who did not become parties opponent) claimed that the loss of the tree would be detrimental to the visual amenity of the churchyard. The Chancellor granted a faculty, subject to a condition that a replacement tree of a species approved by the archdeacon should be planted during the current or next growing season at a location approved by the archdeacon. [Re St. Peter West Blatchington [2019] ECC Chi 4] [Post] [Back] [Top]

[Back] [Top]

Environmental Permit

Environment

The Parochial Church Council of St Mary The Virgin: environmental permit application advertisement CT4 6TT (11 September 2019). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 from the Parochial Church Council of St Mary The Virgin for St Mary The Virgin Church, Vicarage Lane, Elham, Canterbury, CT4 6TT. Application number: EPR/PB3094AT/A001. This is for the discharge of 0.75 cubic metres per day to groundwater at Location via a trench arch system.


Links to other posts

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

Exhumation

Churchyards

  • New CofE guidance on partial burial of remains &c, 2 Octoberr 2019

Notes on the conventions used for the navigation between cases reviewed in this post are summarized here. The photographs used in these posts are for illustrative purposes and do not relate to the case reviewed. 

Cite this article as: David Pocklington, "Ecclesiastical court judgments – September (II)" in Law & Religion UK, 3 October 2019, https://lawandreligionuk.com/2019/10/03/ecclesiastical-court-judgments-september-ii/

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