The “elderly actress” and the first petitioner

 “[The Court fees] will be higher than usual …in large measure…due to the first petitioner not following the Court’s directions with regard to public notice and making repeated ad hominem criticisms of unnamed diocesan employees and the staff at the registry, all of which have been found to be ill-founded, and most rooted in a fundamental misapprehension of the legal process which the petitioners chose to invoke”. 

Re St. Mary Chithurst

But it all started so well, with what as “at heart a straightforward petition: some may consider it trivial. It concerns a proposal to fell an ash tree” [1]. However, in the experience of the Chancellor, such proposals can generate strong local feeling, citing Re St. Peter West Blatchington [2019] ECC Chi 4, which “attracted some attention in the local and national press”; this will be more familiar to our readers as “Churchwardens, pine cones and a cheeky squirrel“, which (at the time) was written as “light relief from Brexit”.

In view of the dramatis personae, the instant case of Re St. Mary Chithurst [2020] ECC Chi 1, held the promise to be a sequel to “The Servant” or “Blow Up”, but in reality had more in common with an embryo plot line for Midsomer Murders – toxic village relationships but without resort to murder. Also absent was a caricature vicar, the real-life incumbent being “much exercised by the pastoral consequences of the current dispute….[and] anxious for healing when the matter has been resolved” [39]. The somewhat incongruous reference to Sarah Miles as “the elderly actress” sets the tone for the proceedings. Nevertheless, some useful legal points emerged and we would recommend reading the full judgment, if only to gain a flavour of the growing acrimony between those unfortunate enough to have been involved.

The churchyard of St Mary’s church, Chithurst, was closed by Order in Council on 8 August 1901 and the responsibility for its care and maintenance was subsequently passed by the Parochial Church Council (ecclesiastical) to the Parish Council (civil), pursuant to the statutory forerunner of S215 Local Government Act 1972. The ash tree is question was not dead and arguably not yet dying, and its dangerousness was contested. The Ecclesiastical Law Association summarized the case as follows:

“The (civil) Parish Council, which was responsible for the maintenance of the closed churchyard at Chithurst, wished to fell an ash tree, which was suffering from ash die-back, on the grounds that the disease might cause the tree to become dangerous within the next few years and cause damage to the church or passers-by. The proposal was opposed by two neighbours. The Chancellor was satisfied that the petitioners had made a good case for the felling of the tree and granted a faculty”.

The petitioners had hoped to be granted permission to fell the ash tree under a List B application to the Archdeacon. The Chancellor identified the discretionary nature of an Archdeacon’s statutory power to give notice under List B, comparing it with the discretion afforded to an incumbent in relation to the Churchyard Regulations, i.e. List B does not create a right to the issuance of List B permission – see FJR r 3.3(5), Re St John the Baptist, Adel [2016] ECC Lee 8. In this instance, it was the view of the court that the ash tree is question was not dead and arguably was not yet dying, and its dangerousness was contested. But even had the proposal clearly fallen within item B6(2), the Chancellor stressed that the Archdeacon was perfectly entitled to decline to give notice, particularly since it was already apparent that there would be local objection [5 to 7]. The sequence of events leading to the petition by the clerk to, and chairman of, Trotton with Chithurst Parish Council was laid out in an email to the Registry in November 2019:

“[8] …initially hoped we could get permission via a List B application. However, the next-door neighbour to the church (Sarah Miles, the elderly actress) is objecting passionately to the tree being taken down, so the archdeacon is not willing to allow the list B procedure…

…We are not, therefore, a civil PC at war with our church counterparts; we are a responsible civil body that works closely with them but is trying to avoid danger to people and church property without leaving it to the stage where we are no longer able to afford the necessary work and have no option but to close the church on safety grounds“.

Subsequent threats followed: five threatened courses of action “put forward  by members of [the] environmental and finance committees” in the Parish Council’s submission [26]; the possibility of  recouping the cost of the lodgement fee by reducing the financial support the Council gives to the parish church [64]. In addition, the Council had not followed the Court’s directions with regard to public notices, [16] to [20], and made “repeated ad hominem criticisms of unnamed diocesan employees and the staff at the registry, all of which have been found to be ill-founded”, [63].

Against this background, the court reviewed the petitioners’ case, which concluded “it would be madness to put the (perfectly understandable but irresponsible) obsessions of one tree-lover and her lodger ahead of the safety of the public“, [20] to [27]; the objectors’ case, where Miss Miles made certain allegations of neglect in the maintenance of the churchyard, concluding with a plea to the court ” Once we see deterioration within the canopy then we will act. BUT PLEASE NOT YET!” [emphasis in the original]. The letter included a poem authored by Miss Miles in 2014 “which is a lavish encomium to the Chithurst Ash Tree”. A letter from Mr Hollis, who also lives at Chithurst Manor, referred to a report of Dr Martin Dobson, an expert arboriculturalists. Much of the remainder of his letter was directed to complaints regarding the conduct of the Parish Council and of individual councillors, rather than to the merits of the specific proposal contained in the petition, [28] to [32].

In the DAC there was a split in the voting:  6 for “not recommending”, 5 for “not objecting”, none supported recommending the proposal, [33,34].  Although not relevant in the instant case, the Chancellor noted the CBC Guidance to PCCs on the Planting, Felling, Lopping and Topping of Trees in Churchyards (2016) which is supplemental the List B provisions, where invoked, with expansive definitions provided of terms such as ‘dying’, ‘dead’ and ‘dangerous’ [36]. However, the Guidance notes that about six people are killed each year by falling trees or branches, and states that PCC members may be held personally liable. Liability will similarly attach to Parish Councils where the responsibility for maintaining churchyard has been transferred, [35 to 37].

Since the legal responsibility for the maintenance of the churchyard had passed to the Parish Council, the views of the PCC were of less direct relevance, and certainly not determinative of the matter. Nevertheless, the PCC seemed to be in favour of the felling of the tree, and was grateful to the Parish Council for taking the initiative in relation to the health and safety risk in a timely manner [38]. Since passing a resolution to this effect “the PCC has properly stepped back and allowed the faculty case to proceed at the pace dictated by the petitioners who have been in the driving seat throughout” [39]. Furthermore, the PCC “properly declined to pay the lodgement fee in respect of the current petition as this would be a misuse of their charitable funds: legal responsibility for the maintenance of the churchyard rests with the Parish Council, and this includes the fees prescribed for obtaining statutory consents, such as a faculty” [39].

The Chancellor considered the many procedural complaints made by the first petitioner [40[ to [44], but it was unclear, however, whether he was speaking on behalf of the Parish Council or in his personal capacity”. Nevertheless, these were “entirely misplaced and based upon a complete misapprehension as to nature of the faculty jurisdiction, and the careful manner in which it balances the interests of petitioners and objectors”.

Summarizing the law in relation to trees, the Chancellor said:

“[45]. Trees in churchyards are subject both to the faculty jurisdiction and to secular control. The latter imposes restrictions in relation to those specific trees which are subject to a tree preservation order (TPO). Consent from the local authority is required for the felling, lopping and topping of such trees. Further, trees (whether subject to a TPO or not) may contribute to the character or appearance of a conservation area.

[46]. The ash tree which is the subject of the current petition is not subject to a TPO, nor is the church within a conservation area. The DAC Notification of Advice expresses the opinion that the felling of the tree is not likely to affect ‘the character of the church as a building of a special architectural or historic interest’.

The Worshipful Mark Hill Q.C. was aware that certain chancellors had adopted the so-called Duffield framework in determining petitions relating to trees, but was not convinced that the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158 necessarily intended its guidelines to extend beyond changes to listed church buildings, as opposed to their settings [47. The questions themselves speak of the character of the building, and no more expansive definition is given or implied.

“[49]. In the absence of such special features (such as those in Re All Saints Marcham [2020] ECC Oxf 1 [48]), the Court’s approach should be the ordinary presumption against change, with the burden of proof on the petitioners to demonstrate to the civil standard that the works should be carried out” [49].

[50]. I respectfully adopt the observations of Ormondroyd Ch in Re St. Mary Mapledurwell [2019] ECC Win 1 paras 9 and 10 in which he said: “The issue for the Court to decide is whether there is a clear and convincing justification for the felling of the ash tree which forms the subject of the petition” [50].

The merits of the parties were summarized [51]: “The petitioners’ case is that the tree poses a present risk and needs to be felled. The objectors concede that the tree is diseased but argue that the time has not yet come when health and safety concerns are such as to require it to be cut down.” The Chancellor concluded:

“[57]. It seems to me that the Parish Council has identified a serious risk which is real – not fanciful – and which would result in serious personal injury (or worse) and/or damage to the grade I listed church building. The risk is not immediate: were it so, the Court would have granted an emergency interim faculty on health and safety grounds. Instead the petition has been expedited but within a time frame which has allowed arguments for and against felling to be properly advanced and carefully considered.

[58]. Assessing the evidence in the round, and giving due weight to the DAC Notification of Advice, I have come to the conclusion that the petitioners’ case is made out. I am satisfied on the balance of probabilities that there is a clear and convincing justification for the felling of the ash tree…There is no suggestion that the tree contributes in any meaningful way to the setting of the church or that its removal would be detrimental to the aesthetic. And even if there were, the countervailing arguments concerning disease and public safety would prevail.

[59]. …The Consistory Court should be slow to interfere with careful and responsible decisions made by Parish Councils who carry the legal liability for maintaining churchyards…But provided a Parish Council has made a careful and well-informed decision, the Court should afford that decision due weight and exercise an appropriate degree of deference”.

With regard to Duffield framework, had this been adopted:

“[61]. … [Chancellor Hill] would have determined the first question in the negative, namely that the proposed felling of the ash tree would not result in harm to the significance of the church as a building of special architectural or historic interests. The listing statement is very short: “Dedication unknown. Chancel with west bell-turret and west porch. C11 with later windows. Modern porch.” No mention is made of the churchyard. I would then have determined the petition in the same way and for the same reasons as I have in the preceding paragraphs without recourse to the harm/justification analysis in questions 3, 4 and 5.”

Noting that the first petitioner has stated that even though the Parish Council paid the lodgement fee, it proposed to recoup it by reducing the financial support it gives to the parish church, the Chancellor commented:

[64]. That would be unfortunate. I am pleased to record the first petitioner’s unpaid service to the community as clerk to the Parish Council, and the generosity of the Council to the parish church.

It would be regrettable if the parish church and congregation were to be penalized because the first petitioner misunderstood the nature of the faculty jurisdiction and unwisely conducted these proceedings in such a way as to drive up the court costs rather than keep them to a minimum”

Cite this article as: David Pocklington, "The “elderly actress” and the first petitioner" in Law & Religion UK, 27 April 2020, https://lawandreligionuk.com/2020/04/27/the-elderly-actress-and-the-first-petitioner/

4 thoughts on “The “elderly actress” and the first petitioner

  1. Having read the whole judgment I fully appreciate the Chancellor’s comment, “I am pleased to record the … generosity of the Council to the parish church.”. Our open churchyard has benefited from such generosity, until now.

    However, such generosity has been challenged. Our parish council was sent a circular stating, “At this Precept time, I do hope that Herefordshire parish councils are heeding NALC’s [National Association of Local Councils] advice not to benefit the property of the Church in the form of grants or direct maintenance of churchyards. NALC’s view, as sent out to you all in 2018, is that this would be an unlawful expenditure and your parish council could be at risk of a costly Judicial Review challenge. If your Church provides a service to the local community such as a Pensioners’ Christmas Party or a trip to the seaside for local children, that could be funded by the Parish Council because it does not benefit the property of the church. The latest (attached) advice relates to a 2017 Church Care document which erroneously suggests that parish councils can fund repairs to Church property”.

    NALC appears to overlook the Burial Laws Amendment Act 1880, which is still in force. Section 6 of the 1880 Act gives rights to all resident parishioners to be buried in the churchyard, with or without any religious service. Therefore a parish churchyard ‘provides a service to the local community’ for all who die in the civil parish. “Every householder is by law responsible for the burial of any person dying within his house, under penalties, and for taking the body to the churchyard when there is no other lawful place, and every clergyman obstructing the burial in the churchyard is also liable to penalties.” the Lord Chancellor introducing the bill in Parliament: see Hansard May 1880: bit.ly/BLAAct_1880
    .
    I regard as correct NALC’s advice concerning the Local Government Act 1894 s.8 because it refers to “property relating to the affairs of the church”: i.e. a parish council cannot fund the repair or maintain the church building itself. This could relate to the Compulsory Church Rate Abolition Act 1868. In 1894 a church could still raise a voluntary rate, and some do today, for such expenditure.

    Of course, the public clock on the church tower is a different matter: Parish Councils Act 1957 Part I – Powers to Provide Public Amenities and sections 2, 5 and 6: Power to contribute to the reasonable costs of maintaining public clocks whoever owns them.

    NALC’s advice has been challenged, but with no success so far.

  2. Two points: fair enough about the common law right of burial in the churchyard – but that will, presumably, only apply if the parish church has an open burial ground. If the burial ground has been closed, then it’s difficult to see how it could be providing a “a service to the local community”.

    Secondly, who has challenged the advice? Presumably it’s not susceptible to JR, because the NALC isn’t a public body. Or is it?

    • Thanks, Frank.

      1. Agreed. As I mentioned above, our churchyard is still open in contrast to Re St. Mary Chithurst case.

      2. A member of the PCC, and former parish clerk, who drew NALC’s attention to the Local Government Act 1972. It seems illogical to argue that a Parish Council is not permitted by law to contribute to maintaining an open churchyard under s.214 when every parishioner has a right to be buried, when under s.215 (2) they can be made liable to maintain a closed one when no one has a right to be buried: subject to the Parish Council not exercising their right under s.215(3) to pass responsibility for a closed churchyard to the district council.
      The response was, “We don’t engage with the public”.

      It is understood that the parish council involved is now taking it up with NALC.

      3. I would accept that NALC is not a public authority. It is hoped that NALC realises that the parish council might be susceptible to JR for wrongly interpreting the law.

  3. The saga continues. Our parish council has now received advice from four sources: all say do not contribute to the churchyard maintenance as the law is unclear.

    My research included ‘Parish Administration’ by Charles Arnold-Baker (every parish clerk’s bible – in 2018 in its 11th edn) 1st edn 1958. Included is the Parish Councils Act 1957 s.10 ‘Power to contribute towards expenses of burial. A parish council may contribute towards the expenses incurred by any other person in maintaining any place of interment in the parish in which the remains of inhabitants of the parish are or may be interred.’. Now replaced by Local Government Act 1972 s.214.

    1957 Hansard 2nd reading contains interesting reasons for the origin of the 1957 Act:
    “The enactment of this Bill is especially desired by the National Association of Parish Councils, which has existed for only nine years, and which is a purely voluntary organisation but, nevertheless, represents the great majority of parish councils. I understand that the present membership is about 5,500 parish councils. I would pay tribute to the officers of that Association for the very great help they have given me in drafting the Bill. …

    Clause 2, dealing with clocks, and clause 10, dealing with contributions towards churchyards and other burial grounds, make it possible to support two conspicuous village landmarks which are widely falling into disrepair because the body which usually owns them cannot afford their proper upkeep. Parish councils are responsible also for the maintenance of closed churchyards. They can provide burial grounds, but they cannot yet provide any sort of village clock.

    Nowadays, village clocks are often wrong and churchyards are often overgrown and untidy because the body which owns them cannot afford to maintain them. Both institutions are public but very local, and there is little prospect of improvement unless the parish council, representing the only really interested public, is empowered to help.” bit.ly/PCbill1957

    How times change at NALC!

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