Ecclesiastical court judgments – January (II)

Review of the ecclesiastical court judgments during January 2020

Part I of this post reviewed the first nine of the seventeen consistory court judgments that were circulated in January; these related to Reordering, extensions & other building works. This second part covers the remaining eight judgments relating to: ExhumationChurchyards and burials; Audio Visual Equipment; Bells; and CDM. This summary also includes links to other posts relating to ecclesiastical law.


Audio Visual Equipment

Re St. Francis of Assisi Bournemouth [2020] ECC Win 1 St Francis of Assisi, Bournemouth is a grade II listed church dating from the early 20th century, and forming part of a group with a church hall, curates’ house, former vicarage and cloister [1]. The petitioners sought permission for the installation of an audio-visual system including three 49″ flat screen monitors to pillars in the nave, a 55″ screen for the sanctuary area (all for viewing by the congregation), and a 32″ screen to be fitted to the rear of the foremost 49″ screen (for viewing from the sanctuary) [3].

There were three letters of objection, stating that the screens would be detrimental to the character of the Grade II 20th century church; there was no need for permanent screens; the financial cost was not justified; and there were concerns about privacy and data protection [7]. The Chancellor considered the petition in the light of that the approach laid down in Re St. Alkmund, Duffield [2013] Fam 158 as modified by Re St. John the Baptist Penshurst [2015] Court of Arches (Rochester). He noted that none of the special architectural and historic interest of the church would be adversely affected by the proposals [10].

One of the objections to the inclusion of video cameras within the proposed IT installation was concern regarding privacy/data control [7(d)]. Chancellor Ormondroyd noted: “[12]. I see no reason for concern in terms of data protection from the provision of the camera, which will not be used routinely to record the congregation. If there are concerns then there is separate legislation to deal with them”.

[Indeed: this is covered in our post Parishes and the “GDPR” in which we noted, “By incorporating the [directly applicable EU Regulation on] GDPR into UK law, the majority of its provisions will remain post-Brexit”. This is reinforced by the recent statement from the Information  Commissioner’s Office, here.]

The Chancellor was satisfied that there was a genuine requirement for screens in order to facilitate the worship and mission of the church as it is currently advanced, particularly in terms of special occasions and use of the church building by third parties. I was further satisfied that the current proposals represent the best option in terms of a balance between function, cost and preservation of the character of the building. He commented: “that being so, it is not for me to second guess the PCC’s decision-making as to how it promotes worship and mission and/or spends its budget”. Faculty granted.  [Re St. Francis of Assisi Bournemouth [2020] ECC Win 1] [Back] [Top]


Exhumation

Family graves

Re St. John the Baptist Ashley [2020] ECC Lic 1* The petitioner, a non-parishioner, wished to reserve a grave space in the churchyard for herself and her partner, next to the plot in which her father was buried. “[the Petitioner] has a close connexion to this church; sound reasons for wanting to make provision now for her interment; and a good reason for seeking to reserve the space in question. Moreover, her petition is supported by the incumbent and the Parochial Church Council” [4]. However, there were only 50 available spaces, and burials averaged 7 a year. The petitioner, aged 31, was unlikely to die before the remaining spaces were required within about 7 years’ time by those legally entitled to be buried in the churchyard, and so a reservation would prevent parishioners being buried in the remaining spaces [5]. The Chancellor described the Applicable Principles:

[8] Where there is ample space in a churchyard and consent from the incumbent and in the absence of a policy by the Parochial Church Council of opposing the reservation of grave spaces a faculty will readily be granted for a reservation. However, where space is limited or where there is such a policy then a faculty will not normally be granted and justification for taking the exceptional course of allowing a reservation in such circumstances will have to be shown.
[9] The reason why a reservation will not normally be authorised when space is limited is because of the risk that such a reservation would prejudice the right of those parishioners who would otherwise be entitled to be buried in the churchyard.

Case law cited in support of these Principles included: Re St Nicholas, Pevensey [2012] PTSR 1207 at [18] and [20]; Re St Margaret, Drayton (Norwich 2015) Arlow Ch; Re All Saints, Ashwicken [2016] Ecc Nor 4; and Re St Benedict Biscop, Womborne [2019] Ecc Lic 2 at [14]. Chancellor Eyre concluded:

“[15]. It follows that in the current circumstances the faculty sought must be refused. In the event that arrangements are in due course made to provide extra space in this churchyard whether by the acquisition of further land or by way of reuse of parts of the churchyard or otherwise then it will be open to [the Petitioner] to make a fresh application.

[Re St. John the Baptist Ashley [2020] ECC Lic 1] [Back] [Top]

Errors in burial

Re All Saints Barrowby [2019] ECC Lin 1 The ashes of the father of the petitioners were interred in 2013. The intention of the family was that in due time the petitioners’ mother’s ashes would be interred in the same grave plot. After the petitioners’ mother died and the grave of their father was reopened, it was found that the grave was too shallow to take a second interment, and the mothers ashes had to be interred in a plot a few rows away. The petitioners now wished to have their mother’s ashes exhumed and reinterred in a grave next to their father’s grave. The Chancellor determined that there had been a ‘mistake’ in that the father’s grave had been dug too shallow, which had frustrated the intentions of the family. He therefore decided that this was an exceptional situation where a faculty could be granted for exhumation and reinterment. [Re All Saints Barrowby [2019] ECC


Churchyards and burials

Churchyard Regulations

Re St. Leonard Alton [2019] ECC Lic 10 The petitioner wished to place a memorial on the grave of his late wife whose burial was in 2017; it was to be of rough hewn local stone and to have an upright wedge or pyramidical shape, with a bronze plaque attached [3]. Although supported by the PCC and incumbent [4], the DAC did not recommend approval. It expressed “strong reservations” about the design and felt it was not in accordance with the setting. It also expressed reservations about the proposed inscription which it regarded as being too lengthy; was overly personal; and the inclusion of a single verse of Lord Byron’s poem lacked context and was inappropriate [5].

In explaining the approach to be taken on the Diocesan Churchyard Regulations, Chancellor Stephen Eyre said:

“[11]. A uniformity of memorials is neither necessary nor desirable. As the Regulations say at [43] and [44] …

[12]. Particular care is needed in the wording of inscriptions. It is important to bear in mind that the inscriptions will be read not just by those who knew the departed loved one but also by those who did not. The message sent to the latter is in some respects as important as that sent to the former. In those circumstances the message conveyed by an inscription must be consistent with Christian belief and must be something more than an expression of loss no matter how deeply felt.

[13]. The design of this memorial is out of the ordinary though what is proposed is by no means unique …I  am satisfied that it is appropriate to authorise a memorial of local stone in the pyramidical shape proposed together with a bronze plaque. Such a memorial will differ from others in the churchyard but will not detract from the overall appearance nor will it “stand out like a sore thumb”.

[16]. The passage from Byron is part of a secular poem which conveys no suggestion of Christian resurrection hope. Indeed, [the Petitioner] says that it is avowedly an expression of loss. I have no doubt that [his] loss is intense and the language proposed is beautiful. Nonetheless, it is language which is not appropriate on a memorial in churchyard and cannot be permitted. That is because of the message which it conveys or rather because of its failure to
convey a message consistent with the purpose of the churchyard.

The Chancellor determined to grant a faculty, subject to the Petitioner agreeing a suggested alternative inscription set out in the judgment, omitting the proposed verse or including an alternative verse from Holy Scripture or classical Christian poetry or hymnody [17, 18]. [Re St. Leonard Alton [2019] ECC Lic 10] [Back] [Top]

Re All Saints Lubenham [2019] ECC Lei 4 The application was for a memorial to those who had died in the Second World War. This memorial would be placed beneath the existing memorial to those who had died in the First World War. For the reasons set out in the judgment, the Chancellor was not satisfied with the details of the proposals and he adjourned the matter, requesting that revised proposals should be submitted. [Re All Saints Lubenham [2019] ECC Lei 4] [Back] [Top]

Re St. Andrew Tur Langton [2019] ECC Lei 5 A farmer and his son wished to install in the churchyard a memorial to the farmer’s late wife, comprising a small unpolished stone statue of a sheep on a plinth, inscribed in memory of the deceased and with the additional words “The Lord is my Shepherd”. Chancellor Blackett-Ord “[started] start from the position that the use of a sculpture of an animal as a memorial in a churchyard is so far outside the scope that is usually permitted that there must be a presumption against it” [7]. However, In its favour are a number of matters: the petitioners had given serious thought to the memorial; the proposed material appeared to be acceptable; it commemorates the farming background of the family; stone animals are not unknown in this churchyard; and a sheep as symbolic of a Christian, enjoys the very highest authority [8]. The Chancellor granted a faculty subject to conditions on the material used. [Re St. Andrew Tur Langton [2019] ECC Lei 5] [Back] [Top]

Re St. James Burton Lazars [2019] ECC Lei 1* The petitioner’s wife died in February 2018 and her body was cremated, but the ashes had not been interred in the Garden of Remembrance in the churchyard. The issue raised by the petition was not as to the form of the proposed memorial stone but as to whether a memorial stone should be permitted at all, and if so, when and where [2].

The Church had its own set of churchyards regulations, approved by faculty, two of which were pertinent [4]:

“(8). Memorial stones over burials of cremated remains are not permitted …”

“(19). Without faculty permission, the Incumbent (or, if there is none, the Area Dean) may permit the interment of ashes in the burial ground either in an existing grave or in any part of the churchyard that has been authorised by faculty for such a purpose”.

The Chancellor stated

“[6]. On general principles, an Incumbent does not permit a memorial stone to be erected where there are no human remains in situ. Under these regulations the Incumbent may allow a stone memorial in traditional form to mark a burial, but may not allow such a stone for cremated remains. Such remains may be buried either in an existing grave or in the Garden of Remembrance, but the burial of cremated remains does not of itself allow a headstone marking those remains.”

In April 2018, the petitioner reserved a grave for himself in the churchyard. By this time he had appreciated that if his wife’s cremated remains were to be buried in the churchyard or the Garden of Remembrance, no memorial stone could be put over them under the Incumbent’s authority, unless permitted by faculty [9].

He now wished to have a tablet in memory of his wife placed either on the grave he had reserved for himself, in anticipation of his wife being buried in the reserved grave after he himself had been buried in it, or on a cremation plot in the Garden of Remembrance, if his wife’s ashes were buried there.

The Chancellor stated that under the regulations, the following is already permitted [19]:

(a) that his wife’s ashes are buried in the Garden of Remembrance and this fact mentioned when a stone is erected over his own grave;

(b) that after his own death, his remains are cremated, and buried with her in
the Garden of Remembrance, but without a headstone;

(c) that her ashes are kept unburied until he is dead, at which time her ashes can be buried in his own grave space and at the same time as he is buried there, and the fact commemorated in a single stone.

He appreciated that none of this is precisely what the Petitioner wants. But the question was whether the petitioner’s particular desires justified the departure from the regulations that they would involve [20].

The Chancellor refused a faculty, as he did not feel that the Petitioner had made a good case for an exception to the church’s churchyard regulations [21].  [Re St. James Burton Lazars [2019] ECC Lei 1] [Back] [Top]

Trees

Re St. John the Baptist Ruardean [2020] ECC Glo 1 Faculty application was made on their behalf of the Petitioners by the Rt Revd Christopher Hill, honorary assistant bishop in the Diocese of Gloucester, concerning the extension of the churchyard at the Church of St. John the Baptist at Ruardean, and associated works including the removal of a line of trees and a fence and the repair of a retaining wall [1]. Since 2002, the current churchyard has become filled to near capacity, with fewer than 5 grave spaces remaining; “it is now urgent that there should be sufficient burial plots to meet local demand” [12]. Formal permission for change of use of the strip of land to become an additional burial ground was granted under the Town & Country Planning Act 1990, by the Forest of Dean District Council on the 5th December 2019, subject to reasonable conditions [13].

The grant of that permission appears to have had the unfortunate outcome that the local paper, The Forester, printed an article suggesting that the removal of the conifers was going ahead, and failing to recognise that this Faculty application was still outstanding. The Deputy Chancellor accepted the assurance of the Petitioner that the article had not been generated or approved by anyone connected with the church or the PCC [13].

Historic England had been consulted during the pre-application process, and in a letter an Inspector of Ancient Monuments stated that the removal of the line of conifers would be welcome as it would re-establish the visual link between the church and the castle and would allow visitors better to understand the early origins of Ruardean and how important it was in the mediaeval period [11].

The Deputy Chancellor noted that the case for the extension to the existing churchyard, onto the strip of land some 13 metres wide by some 103 metres long, was well made [28], and the contentious issue was whether the line of some 44 conifers, and the remaining 13 stumps of others should be removed, together with the concrete fence posts and bases, and the remaining fence wire and occasional stones [30]. Importantly, the value of the line of conifers as habitat for birds and other fauna was considered; the ecology report concluded:

“None of the habitats of the site qualify for ‘Priority Habitats’ of the UK Biodiversity Action Plan…Therefore, no habitats of greater than site value … will be impacted by the proposed works. Planting of a mixed species hedge will ultimately increase the biodiversity value of the site post-development and is therefore considered to provide a positive net effect [32].

The ecological report made no mention of owls being sighted or using the line of conifers. [The Deputy Chancellor] concluded that any owls are unlikely to be disadvantaged by the proposed works [33].

The Court granted a faculty authorising the Petitioners to undertake the works in accordance with the designs, plans and other documents accompanying the petition and subject to the conditions set out in the Schedule. [Re St. John the Baptist Ruardean [2020] ECC Glo 1] [Back] [Top]


Bells

Re St. Nicholas Haxey [2019] ECC Lin 3* The petitioners sought to increase the number of bells in the tower from 6 to 10, or alternatively to 8. The original 6 are heavy, precluding most women and young people from ringing them [1]. The judgment considers in detail the technical merits of these options. There was a conflict in assessments between the Petitioners who were supported by other persons with a specialist knowledge of bells and ringing [2[ to [16], and the diocesan bells adviser [17] to [24]. There were also objectors who did not sought to become party opponents who had concerns about the effect of any augmentation on the unique and historic carillon that sits in a clock chamber beneath the bells [31] to [36].

In his determination the Chancellor applied  the approach of the approach laid down in Re St. Alkmund, Duffield [2013] Fam 158, and noted that there was no evidence that through damage to fabric, the proposals would result in harm to the significance of the church as a building of special architectural or historic interest [41]. However, the silence of the pre-Reformation bells, if it occurred, “would be ‘harm’ to the significance of the church as a building of special historic interest for obvious reasons” [43]. For a number of reasons, the Chancellor had reservations about the proposals and refused to grant a faculty as sought, suggesting that the petitioners should seek a revised scheme and revised quotation from the bell-founders. [Re St. Nicholas Haxey [2019] ECC Lin 3] [Back] [Top]


CDM


Links to other posts

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

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, most recently on 30 January 2020. The next meeting of the CFCE is on Wednesday 25 March 2020.


Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.

Cite this article as: David Pocklington, "Ecclesiastical court judgments – January (II)" in Law & Religion UK, 13 February 2020, https://lawandreligionuk.com/2020/02/13/ecclesiastical-court-judgments-january-ii/

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