Ecclesiastical court judgments – February (I)

Review of the ecclesiastical court judgments during February 2020

This post reviews the first seven of the nineteen consistory court judgments that were circulated in February; these relate to Reordering, extensions & other building works and Bells. Also included in this post are links to other posts relating to ecclesiastical lawPrivy Council Business, and CFCE Determinations.

The second part will covers the remaining nine judgments relating to: ExhumationChurchyards and burials.


This summary also includes Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.


Reordering, extensions & other building works

Substantial reordering

Re St. John the Baptist Suckley [2017] ECC Wor 2 In 2015, the Chancellor had granted a faculty to authorise several items as part of an ambitious programme of reordering, Re St. John the Baptist Suckley [2015] Charles Mynors Ch. (Worcester). The Chancellor described this as

“[1]. … a remarkably ambitious programme of works that would, if implemented in its entirety, radically transform the building into a multi-purpose space capable of use for much more than merely Sunday worship”. There were twelve principal elements of the programme, together estimated to cost more than £300,000.”

The original faculty gave permission in principle for a number of items, subject to certain conditions, [2] and [3]; the Chancellor noted at the time that the other items that formed part of the overall package of works would have to be the subject of a further petition or petitions [5]. Under a new incumbent, two new faculties were submitted in 2016, although these were subsequently withdrawn, [6] and [10].

A new architect was appointed, the reordering scheme revised and a new petition submitted for the approval of the four remaining items which had not been approved in 2015: installation of a new wooden floor with underfloor heating; the alteration of some pews and the disposal of others; the screening of the vestry; and the introduction of a kitchenette, WC and upper room in the north transept [12].

The Chancellor first gave consideration to the options of amendments to previously approved proposals [14] to [18]. On this he concluded [emphasis added]:

“[18]. Deciding whether a particular proposed change can be authorised by amending a faculty is bound to be a matter of fact and degree. But one test is likely to be a consideration of the probability of the change raising objections distinct from those that might have arisen in relation to the original proposal. And that in turn may require consideration of whether (and why) the original proposals were controversial …

Each of the four items was considered in turn. The Chancellor approved the new flooring and underfloor heating. He did not authorise the new details of the proposed vestry screening, or the kitchenette, WC and upper room, as there needed to be consultation with the local planning authority, Historic England and the Victorian Society. As the proposal regarding the pews had changed, so as to request now permission to remove two-thirds of them, again the Chancellor required the matter to be the subject of a separate petition with further consultation. [Re St. John the Baptist Suckley [2017] ECC Wor 2] [Back] [Top]

Re St. John the Evangelist Cononley with Bradley [2020] ECC Lee 1 Following an earlier judgment in January 2016, neutral citation number [2016] ECC Lee 1, a faculty was issued for an “ambitious reordering of the interior of this unlisted church”which included: relocating the font; extending the width of the chancel steps; removal of choir stalls from the chancel; removal of the pews in the nave; re-flooring of nave, narthex and chancel; introduction of kitchen and toilet facilities in narthex; relocation and improvements to the Victorian screen [1]. The works did not proceed as swiftly as hoped and various orders were made extending the period for completion, a final extension was granted on 4th April 2019, requiring the work to be completed by 31 January 2020 [3].

On 31 January 2020, the interim vicar (who was not a party to the original proceedings), emailed the registry, seeking to expedite matters; she indicated that the first service to take place in the re-ordered building was scheduled for 1 March 2020, followed by a community ‘church warming’ event and then a re-dedication on Sunday 5 April 2020 [6].

The Chancellor was concerned with two aspects of the application: with regard to the lateness, he said:

“[7] … it is poor practice to implement certain works authorised by faculty and then apply to vary the faculty so as to change or exclude other elements. A faculty is table d’hôte not à la carte. Permission is given for a suite of works to be implemented holistically not on a pick or mix basis. That said, the Court granted liberty to apply without limit of time, and in the circumstances it would be improper and ungenerous to reject the application on the ground of delay alone”.

More troubling was the impecuniosity argument:

“[8]. A prudent PCC should never embark upon a project when they lack the funds – either in hand or promised – to complete it. It concerns me that at this very late stage an application should be made to the Court to vary a faculty because a parish cannot afford to complete the works which have been authorised” [8].

The Chancellor commented:

“[13]. It is clear from the sequence of correspondence that the liberty to apply to vary the conditions in the faculty was not intended to be unlimited but to allow the parish the option of considering one of the other two designs which [the church’s inspecting architect] had floated both with the parish and with the DAC and other consultees.

[14]. The first matter for me to consider is whether it would be appropriate to revisit the principle that the replacement chairs be wooden, rather than upholstered.

[…]

[17]. I considered seeking the advice of the DAC on the application to vary and also to consult the Victorian Society. However I am conscious that [the incumbent] wants a swift response and has contacted the registry asking for the matter to be expedited. I consider it unlikely that the Victorian Society will have altered its position which was expressed at the time fully and with clarity. The role of the DAC is advisory only and I have come to the view that even were it to offer support for what the parish now proposes (which I consider to be unlikely), my ultimate disposal of the application would not be affected.

[18]. In short, the request for a variation of the faculty must be rejected. The application comes too late. The works have largely been implemented. To allow this variation would be to break faith with the basis upon which the consultation took place, the manner in which it was put before the DAC and the way in which the petition was advanced in the Consistory Court.

However, some concessions were offered to the incumbent as a route to progressing the reordering [19 to 21].

[Re St. John the Evangelist Cononley with Bradley [2020] ECC Lee 1] [Back] [Top]

Other building works, including re-roofing

Re St. Peter & St. Paul Coleshill [2020] ECC Bir 1 The reordering works approved by a faculty in Re St Peter and St Paul Coleshill [2015] had not been completed within the time allowed. At that time, no party had sought to become party opponents and accordingly the Chancellor made his decision taking into account the submissions made by the amenity bodies. No appeal was lodged in respect of the decision and the work duly commenced [2].

A new petition was presented, requesting authority to carry out the remaining items of work. As this relates to phases 3 and 4 of the work, originally considered in the initial judgment he considered it to be “only fair to allow the amenity authorities to consider the position afresh” [4].

Historic England [5 to 8] and the Society for the Protection of Ancient Buildings [9 to 10] expressed concerns about certain aspects of the proposals (including the pews, the heating system, raising the floors, carpeting, the screens and the glazing). The Chancellor noted [11] “In relation to the pews it is significant in my judgment that the Victorian Society have not raised any objection to the proposals to remove some (but not all) of the pews”. However, he concluded [11]:

“It seems to me that the way in which the Parish and the amenity authorities have cooperated is admirable and I am satisfied that the proposals represent a compromise which should satisfy all parties. In the circumstances therefore I in effect renew the existing Faculty. The original Faculty contained three conditions, as to the approval for the wiring routes, an archaeological scheme to be submitted before the reordering works commenced and an archaeological watching brief in respect of any excavation work. In so far as those conditions are still relevant, they should still apply.”

[Re St. Peter & St. Paul Coleshill [2020] ECC Bir 1] [Back] [Top]

Re St. John the Evangelist Manthorpe [2019] ECC Lin 5 This short judgment concerns two outstanding matters following the judgment in Re St. John the Evangelist Manthorpe [2019] ECC Lin 4, viz. the dismantling of the pulpit and repositioning of the chancel pews. The rationale for the latter is a consequence of the movement of the altar rail to allow more ease in administering communion.

With regard to the repositioning, the Chancellor commented [emphasis added]:

“[2]. … This explanation [from the project architect] was not provided in any of the documents before me when I gave judgement. I am satisfied that this is adequate justification for the repositioning of the chancel pews. I would invite the Petitioners to consider where these pews may best be incorporated elsewhere in the church within the new scheme. I cannot permit their removal from the church.

With regard to the pulpit:

“[3]. … I cannot permit the disassembly of the pulpit (even by using existing mortar beds and not cutting stone). It is part of the original design of this estate church and its ‘re -imagining’ into 2 separate items would be to inflict such harm on the church s a whole that it cannot be permitted.”

He suggested that the petitioners should take further advice from the DAC about moving the pulpit within the church, but reiterated his objection to its “reimagining”. [Re St. John the Evangelist Manthorpe [2019] ECC Lin 5] [Back] [Top]

Re St. Mary the Virgin West Butterwick [2019] ECC lin 7 The petitioners sought to undertake repairs to a window in the north wall of the nave of this Grade II church, built in 1841 with interior fittings renewed in 1979; also to install a window guard. In part of the window to be repaired are 2 roundels alongside each other in either light [1]. There was uncertainty regarding the age of these figurative panels, and also the need for protective glazing.

Much of the judgment concerns obtaining advice on the treatment of these panels, [3] to [12], on which the Chancellor commented [emphasis added]:

“[16] Conservation work has been done on the other windows in the church without any of the issues that have arisen in this faculty application. The issue of what age this glass may be has caused the CBC to be cautious in their advice. It is unfortunate that their advice, when it has come, has been interspersed by significant periods of time. It may be that under resourcing or illness may have contributed to those delays. However, it is also clear that these delays have had a demoralising effect on the Churchwardens who have not stood again for office. This I regret.

[17] … the time taken in this case in formulating advice has been far too long and the engagement [by the CBC] in serving the needs of this parish in progressing this faculty have not been given sufficient priority, for whatever reason

The Chancellor was satisfied from the evidence that all the glass in the window was Victorian, and granted a faculty [18]. [Re St. Mary the Virgin West Butterwick [2019] ECC lin 7] [Back] [Top]

Re St. Philip & St James Whittington [2017] ECC Wor 1 Although recently circulated, this case was first reviewed in Ecclesiastical court judgments – December 2017

[Back] [Top]


Bells

Re St. Michael Glentworth [2019] ECC Lin 8 The Petitioners sought a faculty to install an automatic winding mechanism and automatic regulation to the tower clock at the Grade II* church. The estimated cost of the work is £5800, and the Parish Council have agreed to fund up to £1850 towards the cost [1]. There is no explanation in the judgments of where the balance of the funding is to be obtained. However, the annual service of the clock s paid for by the civil Parish Council [3], and in agreeing to the option favoured by the PCC, there is an implicit assumption that it will fund the balance.

Until January 2018 the clock was wound manually by a rota of volunteers but after a risk assessment such manual winding was suspended until safer option could be explored. The Risk Assessment was undertaken in March 2016; the report notes that the clock is wound on average every 5 days which is about 70 days per year [5]. Following the report, the PCC decided that no one should access the clock room floor without PCC permission and a ladder guard was purchased. The PCC and the Parish Council considered 3 proposals [6] and on 2 April 2019, the PCC has unanimously agreed to seek a faculty for an automatic winding mechanism; this option is supported by the Parish Council.

Applying Re St. Alkmund, Duffield [2013] Fam 158 “which provides a framework for decisions of this kind to that set out in the ‘Bishopsgate questions’, Re St Luke the Evangelist, Maidstone (1995) Fam1), the Chancellor was satisfied that the proposals for the automatic winding mechanism would not result in harm to the significance of the church as a building of special architectural or historic interest [12]. A faculty was granted with the condition that all surplus items such as weights, pulleys, winding handle and jack etc should be labelled and safely stored close to the clock [13,14], and the Chancellor “[was] sure the PCC would want to join me in expressing gratitude to the rota of manual winders who have been prepared to ascend the tower to wind the clock for the assistance of the whole community over the years. [Re St. Michael Glentworth [2019] ECC Lin 8] [Back] [Top]


Links to issues that have been considered in L&RUK in February

General/Miscellaneous 


Privy Council Business

At the Privy Council on 12 February 2020, the Queen-in-Council made an order allowing two people on their decease to be buried in a churchyard that has been closed since 1900 [scroll to page 139].

“Her Majesty, in the exercise of Her powers under section1 of the Burial Act 1855, by and with the advice of Her Privy Council, is pleased to order as follows:—

Notwithstanding anything in the Orders in Council made under the Burial Acts 1853 and 1855 on 15 ​May 1900 and 29 June 1900 directing the discontinuance of burials in All Saints Churchyard, Berrington, Shropshire, the exception to be added in that the bodies of Mrs Doreen Waters and Mr Maurice Orton on their decease may be buried in the graves in the churchyard next to Meirion Gwynfor Waters and Brenda June Orton respectively, provided that no part of the coffin containing the body shall be at a depth less than one metre below the surface of the ground adjoining the grave”.

Also at this meeting, page 129, the Secretary of State for Justice, after giving ten days’ notice of his intention to do so, has, under the Burial Act 1853 as amended, made representations to Her Majesty in Council that, subject to the exceptions below, burials should be discontinued in:-

  • The Ascension Burial Ground, All Souls Lane, Huntington Road, Cambridge;
  • Tydd St Giles Church, Church Lane, Wisbech, Cambridgeshire;
  • St Michael and All Angels’ Church, Leafield, Witney, Oxfordshire;
  • All Saints Church, Vicarage Road, West Sussex;
  • Old St Mark’s Churchyard, Low Moor, Bradford, West Yorkshire;
  • All Saints Churchyard, Pitsford, Northamptonshire;
  • St Martin of Tours Churchyard, Eynsford, Rochester, Kent; and
  • St John the Baptist Church, Hythe, Winchester, Hampshire.

The exceptions cited followed a familiar format,

(a) in any vault or walled grave in the churchyard, burial may be allowed but every coffin in such vault or grave must be separately enclosed by stonework or brick work properly cemented;

(b) in any existing earthen grave in the churchyard, the burial may be allowed of the body of any member of the family of the person or persons previously buried in that grave, but no part of the coffin containing the body shall be less than one metre below the level of the surface of the ground adjoining the grave; and

(c) in any grave space in which no interment has previously taken place, the burial may be allowed of any person for whom, or any member of the family for which that grave space has been reserved and appropriated, with the exclusive right of burial there, but no part of the coffin containing the body shall be less than one metre below the level of the surface of the ground adjoining the grave.

Her Majesty in Council was pleased to give Notice of these representations and to order that they be taken into consideration by a Committee of the Privy Council on 25th March 2020. And Her Majesty was further pleased to direct that this Order should be published in the London Gazette, and that copies of it should be fixed on the doors of the Churches or Chapels of the above mentioned places, or displayed conspicuously inside them, for one month before 25th March 2020.


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 when the following applications were determined:

  • Cathedral Church of St Peter in Exeter: Works to the Chapter House and Chapel of the Holy Ghost. Refused the installation of the internal lobby; Deferred determination of the elements of the application relating to excavating 100-150mm further than the concrete slab in the Chapter House and the local excavation external to the west wall, pending the receipt of further information; and approved other elements of application, subject to conditions.
  • Cathedral Church of Lincoln: Permanent removal of Panel 11 of the Southern Run of the Romanesque Frieze from the West Front of the cathedral. Approved, provided Panel 11 replaced by new panel that is approved by the Commission under the Care of Cathedrals Measure (2011). 
  • Cathedral Church of Ripon: To carry out an archaeological evaluation involving the excavation of up to four trenches in the south churchyard of Ripon Cathedral. The evaluation is required to assess the archaeological impact of a proposed development. Approved subject to conditions. 
  • Cathedral Church of St Paul, London: To create a newly designed internal porch at the North Transept entrance of St Paul’s Cathedral through the construction of a lightweight and high quality elliptical timber structure with an internal glazed rotunda. The porch will enable the North Transept to become a permanently available entrance to the Cathedral. It will fulfil the Cathedral’s operational, ceremonial and liturgical requirements for the dignified equal access and welcome of visitors and worshippers entering the building via the new permanent stone ramps and staircase, due to complete construction in summer 2020. Approved subject to conditions.

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 – February (I)" in Law & Religion UK, 4 March 2020, https://lawandreligionuk.com/2020/03/04/ecclesiastical-court-judgments-february-i/

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