Review of the ecclesiastical court judgments during May 2020
On 2 June 2020, the Archbishops of Canterbury and York announced that Morag Ellis QC had been appointed as Dean of the Arches and Auditor, and Master of the Faculties, on the retirement of Charles George QC. She will take up her duties on the 8th June 2020.
A total of eight consistory court judgments were circulated in May. The issues addressed include:
In our post Faculty petitions under the coronavirus restrictions we noted that during the lockdown period of the coronavirus pandemic “[c]ases involving hearings are very rare and are likely to be postponed during the outbreak”. However, a recent exception was Re St. Mary Andover.
In addition, Re St Mary and the Holy Rood Donington provides the final component in the legal peregrinations of the remains of Captain Matthew Flinders since their discovery during the HS2 archeological investigations at the site of the former extra-parochial churchyard of St James’s Piccadilly.
Re St. Mary Andover  ECC Win 4 St Mary’s Andover is an historic church building, now listed at grade II*, which as well as being a parish church serves as the civic church for Andover. It has recently been designated a ‘Resource Church’, and as part of plans to revitalise the life of the church, permission is sought to make various alterations to the interior . The proposed extensive reordering included: removal of certain items; reordering chancel; reordering of nave and transepts; removal of pews and removal/adjustment of AV equipment .
The main items of concern were: the removal of the chancel stalls to provide additional space for contemporary musical accompaniment for services and for visiting choirs and musicians; the replacement of the nave pews with chairs and the carpeting of the nave. However, earlier controversial iterations of the scheme which proposed the creation of full height screens at the west end of the church are not included .
After the Victorian Society wrote to withdraw as Party Opponent, the Petitioners to sought determination by way of written representations; Chancellor Ormondroyd refused because the rationale for holding a hearing – to understand the Petitioners’ case – had not changed . In advance of the hearing, he identified the issues that he would need to explore the following issues , and
“. A hearing was held using ‘Zoom’ video conferencing technology on 16 April 2020, pursuant to the court’s power to “hold a hearing and receive evidence… by using any other method of direct oral communication” (Faculty Jurisdiction Rules 2015, r18.1(2)(e)), and without objection. At the hearing, [the Chancellor] was addressed by Miss Arlow of counsel on behalf of the Petitioners and heard evidence under oath from the Reverend Chris Bradish and Mr Neil Burton. Although [the Chancellor] had invited a representative of the Victorian Society to attend the hearing, in the event no-one did attend.
“I visited the church on 21 April 2020; consistent with government guidance on social distancing the church was simply left open for me and I visited alone without meeting or interacting with anyone at any stage of the visit. I am grateful to all parties for their assistance in making these novel arrangements work in a manner which was both safe and practically effective”.
In determining the petition, the Chancellor followed the approach set out under the heading ‘legal framework’, viz. Re St. Alkmund, Duffield  Fam 158 and Re St. John the Baptist Penshurst  Court of Arches (Rochester) paras. 21 and 22, and on the subject of enhancements to the significance of the building, the approach of Briden Ch in Re Bath Abbey  ECC B&Wl at . Although unsure whether the was the right approach, he was content to adopt it for the purpose of these proceedings .
After hearing the objections of Historic England, the Victorian Society, and the Local Planning Authority,  to , the Chancellor reviewed the case for the Petitioners, with respect to the effects on the building,  to , and the Justification for the proposals,  to .
The Chancellor was satisfied that the petitioners had made a case for the works, with the exception of the carpeting, and he granted a faculty accordingly. [Re St. Mary Andover  ECC Win 4] [Top of section] [Top of page]
Re St. Helen Worcester  ECC Wor 2 “The church of St Helen on the High Street in the heart of Worcester is probably one of the oldest churches in the city, and possibly in the diocese” . However, in 1938, the five city-centre parishes were combined into one, and the use of St Helen’s as a church ceased altogether . Since 2002, St Helen’s has been under the stewardship of All Saints Church, being used once again for worship and also for a variety of other church activities and community purposes. All Saints has recently been designated by the Diocese as a resource church, which enables access to greater funding .
“. As a result of its somewhat chequered history, the building is in poor repair, and has been on the Historic England buildings at risk register for some while. The heating and lighting need renewal. And the overall appearance of the interior is most unsatisfactory. Notwithstanding that, St Helen’s Church is without doubt a medieval building of very considerable historic and architectural interest. And it has the potential to display that interest to much greater effect than is currently the case. It is listed Grade II*.
10. The church occupies a key city-centre site, but in spite of the wide range of activities taking place there, most passers-by are probably largely unaware of its existence, as there is no opening onto the High Street, and it has for most of the last century not been in public use. Since the partial re-opening in 2002, efforts have been made to publicise the activities taking place there, and to encourage access via the south porch opening onto Fish Street, but with only limited success”.
The works proposed a new entrance into the High Street (making it more accessible – the existing access being from Fish Street), replacing the kitchen, floor levelling, underfloor heating, new lighting and a new extension to house new toilets [11,12]. The church also commissioned an extended analysis of the significance of
the building, and a full assessment of the impact of the proposed works on that significance .
The emerging proposals, including the design of the new doorway, have been the subject of extensive discussions throughout the development process, involving the Church Buildings Council, Historic England, the Society for the Protection of Ancient Buildings, the Victorian Society, the City Council, and the Diocesan Advisory Committee . All were in broad agreement with most aspects of the proposals: the Society for the Protection of Ancient Buildings and the Victorian Society questioned the need to remove the east window for the insertion of the new doorway. The Chancellor considered, however, that a new large entrance would require the existing window opening and the stone panel beneath  to .
The detailed design of the new toilet block at the north-west corner of the church, was also the subject of some concern on the part of several of the bodies consulted; these had largely been met by design revisions, but the Chancellor imposed a condition to ensure that the DAC, as well as the local planning authority, is able to be satisfied as to the final design .
The Chancellor granted a faculty for all the works; he was satisfied that the works would “meet a clearly identified need, and that this outweighs any incidental loss of historic fabric or significance that may occur.” [Re St. Helen Worcester  ECC Wor 2] [Top of section] [Top of page]
Re St. George Newcastle  ECC New 2 The proposal was to add a single-storey extension at the north-west corner of the Grade I listed church . St George’s Church, Jesmond (as it is usually known) was built in 1888 and is Grade 1 listed. The current petition is the culmination of several years of consideration and planning which began under the previous incumbent and which has gone through several stages. The most basic problem, which lies at the heart of the petition, is that there are no toilet facilities in the church, the nearest ones being in the Church Hall, which is some 85 metres from the Church. In addition there are no kitchen facilities in the church and if it is desired to serve refreshments in the Church itself all of the crockery and equipment has to be carried over from the Church Hall .
Fourteen members of the congregation submitted letters of objection in response to the public notices  to . Each objector was a member of the congregation; there were no objections from any persons living nearby who were not members of the congregation. The main ground for objection was the potential impact of the extension on the Memorial Garden which it would overlook, that it would be a cause of upset to the family members of those whose ashes are interred there and prevent its use for quiet reflection and remembrance .
The Petitioners’ responded to the letters of objection  to  and concluded by saying:
“. …support has come from the majority of the congregation, reinforced by the PCC at regular meetings and that unanimous support has come from the DAC, the Church Buildings Council (CBC), Historic England, Northumberland and Newcastle Society (apart from the Vice Chairman) and the Newcastle Conservation Advisory Panel (NCAP), the Victorian Society (which has representatives on NCAP) did not wish to comment. Finally they say that “Crucially, firm support for the project was given by the Bishop of Newcastle”
However, this last point was queried by the Chancellor . He noted that this was not a case where he was assisted by any of the authorities in relation to the alteration of listed churches. Although guided by Re St. Alkmund, Duffield  Fam 158,
“. here it is not suggested that the proposed extension would do any harm to the character of the Church and the entire scheme from its inception has been developed in order to preserve the magnificent interior of St George’s…”
“. Neither am I persuaded that the very significant cost of this proposed alteration (£378,211) is something which ought to weigh very heavily with me in coming to my decision. It is clear that some sort of extension is necessary”.
“.The matters which have caused me the greatest concern in this case – and I say at once that I have found this to be by far and away the most difficult case in which I have had to give a judgement in my almost 7 years as Chancellor and nearly 2 years previously as Deputy Chancellor – are those relating to the question of the encroachment into the area of the Memorial Garden and the effect upon those who have the ashes of relatives interred there”.
Re Lambeth Cemetery  ECC Swk 3 The petitioner sought to have the cremated remains of her partner James’s brother and sister exhumed from the consecrated area of Lambeth Cemetery and reinterred in the same double grave plot which James had reserved in 1991, intending the plot for his mother and himself.
The reason for the request was that James’s mother had died and her body had been buried in the plot, and James’s brother and sister had then died, and their cremated remains had been interred in the plot. This presented a problem when James subsequently died, because for him to be buried in the grave (he did not wish to be cremated), the cremated remains of his brother and sister would have to be lifted in order to allow his burial, with their cremated remains then being returned to the grave.
Chancellor Petchey said:
“. It seems to me that the exceptionality test [in Re Blagdon Cemetery  Fam 299] may not be appropriate in circumstances such as these where what I am considering are arrangements to ensure that the cremated remains continue to be interred in the same grave. However that may be, I am satisfied that the circumstances are, in any event, appropriate ones in which to make an exception (see per Cameron QC, Dean in In re Blagdon Cemetery at paragraph 33) and I direct that a faculty should issue.”
Re St Mary and the Holy Rood Donington  ECC Lin 1 The petitioners sought a faculty for the creation of a grave in the east end of the north aisle of the Grade I church for the reburial of the remains of Capt. Matthew Flinders, “the famous navigator and cartographer”, and the installation of a new ledger stone above the grave . Capt. Flinders’ coffin with a (coffin) breastplate bearing his name, had been discovered in 2019 during HS2 works to expand Euston Station, and the proposal was to return his remains to the town where he was born .
The Chancellor held that there were 3 issues that fall to be determined :
(i) the effect of closure of the church and churchyard to new burials by Orders in Council in 1864 and 1865, respectively; and whether the proposed burial in the church is now lawfully permitted;
(ii) if it is, whether the proposed reburial within a church should be permitted applying an exceptionality test; and
(iii) if it is, whether the exceptionality test is satisfied in respect of the memorial ledger stone that is proposed and whether the entire proposal satisfies the tests set out in Re St Alkmund, Duffield 2013 Fam 158.
The churchyard had been closed for burials from 1 August 1865, but an Order in Council in 2020 added an exception to the original Order in Council, to allow the interment of Capt. Flinders’ remains in the north aisle of the church. With regard to (i), in April 2020 the Queen by Order in Council, pursuant to her powers under S1 Burials Act 1855, ordered that an exception is to be added to the Orders made in Council by Queen Victoria.
The Chancellor determined that, notwithstanding the 2020 Order in Council, a faculty was still needed to authorise the interment in the church, and there needed to be exceptional circumstances to allow an interment inside the church. He decided that the circumstances were exceptional, and that allowing the burial in church would not set a precedent, as the Orders in Council prevented any further burials. He therefore granted a faculty. [Re St Mary and the Holy Rood Donington  ECC Lin 1] [Post] [Top of section] [Top of page]
Re St. Nicholas Great Coates  ECC Lin 2 The petitioner sought to introduce into the churchyard a memorial to her late husband which included kerbs laid flush with the ground. The Diocesan Advisory Committee felt unable to recommend the proposal, as the churchyard regulations had for three decades not allowed the introduction of kerbs; it was also mindful that the Church Council did not support the proposal .
The Diocesan Churchyard Regulations are set out in full at paragraph 15. The Introduction explains that what is permitted to be placed within a churchyard must always be judged against the character and needs of the churchyard as a whole, which is a place ‘set apart’ for sacred use forever . It is important, therefore, that so far as it is possible, the character of the churchyard surrounding this Grade 1 listed church within a conservation area, is maintained. The Chancellor noted [underlining in original]:
“. … this is not an application for a raised kerb but one flush with the ground. It must be accepted that it would therefore be possible to mow over the area of the kerb, although if the kerb became sunken or cracked then this could present practical problems for the mowing operation.
. However, in my judgement the principal objection to kerbs around graves in a churchyard is not limited to whether they are raised or flush and the difficulties they may cause mowers. My fundamental concern about the use of kerbs in a churchyard is that it is a tight delineation of the grave creating thereby a border between it and the rest of the churchyard…it is important always to view the churchyard as a whole, as a place ‘ set apart’ for sacred use in perpetuity. It is a place where the graves and the churchyard should all meld together, with the fabric of the church building around which they are all set, so that the whole becomes a place at peace with itself, where the bereaved may come to remember their loved ones, who
rest in peace.
. I am concerned that kerbs, even flush with the ground, would have the effect of creating a series of individual memorial plots, boundaried and set apart, grave by grave, from the rest of the churchyard. This would conflict with the sense that each grave and its memorial was contributing to the overall peace and tranquillity of the whole churchyard, which as a whole was a place set apart for sacred use.
Re St. Giles Exhall  ECC Cov 1 The refusal of Chancellor Eyre to permit an inscription in Irish Gaelic without a translation has proved controversial, and resulted in a statement from the Church of England Irish language – an important part of our Church of England heritage. A summary of the case is on the website of the Ecclesiastical Law Association and a link to the judgment is below. We will post our review within the next few days.
Re St. John the Evangelist Killingworth  ECC New 1 The assistant curate and churchwardens applied for a faculty to have the church bell restored and rehung. The bell had been removed to the premises of a bell maintenance company in 2016, with the Archdeacon’s permission, as it had become unsafe . A legacy had become available to meet most of the cost of the repair and rehanging, with from parish funds available for the purpose . There was one objector, who did not become a party opponent, who raised three issues. The Chancellor saw no substance in the grounds of objection and granted a faculty. Although the objector correctly stated that only one quotation for the work was considered, although efforts were made to obtain alternative quotes.. However,
“… [i]t is clear…from the correspondence that a number of firms – in what is clearly a limited field – were approached and that, apart from O&P, the only other positive response was from a firm in Dorset who were only prepared to be involved if there were at least two or three other possible jobs to view, which was not the case and – in any event – the distance involved would have increased the costs”
Recent summaries of specific issues that have been considered in the consistory courts include:
- A sage appraisal of COVID-19, 29 May 2020.
- New CofE guidance: fabric and building maintenance, 27 May 2020.
- Churches during relaxation of lockdown – I, 27 May.
- Guidance on construction work in churches, 20 May 2020.
- Taskforce on reopening places of worship, 15 May 2020.
- Towards net zero carbon for churches, 12 May 2020.
- Towards opening churches in July, 11 May 2020.
- Access to church buildings during lockdown, 7 May 2020.
- Bishops back phased approach to church access, 5 May 2020.
At the meeting of the Privy Council on 20 May 2020, granted an Order for the postponement of General Synod Elections under the Coronavirus Act 2020, The General Synod of the Church of England (Postponement of Elections) Order 2020 SI 526.
In pursuance of the Orders in Council made on 12th February 2020 and 11th March 2020 these representations have been published and taken into consideration by a Committee of the Privy Council, Orders were granted prohibiting further burials in:—
- The Ascension Burial Ground, All Souls Lane, Huntingdon Road, Cambridge, Cambridgeshire;
- Tydd St Giles Church, Church Lane, Wisbech, Cambridgeshire;
- St John the Baptist Church, Hythe, Winchester, Hampshire; and
- Holy Trinity Churchyard, Calne, Wiltshire,
under the Burial Act 1853. These are subject to the normal conditions applying to closed churchyards.
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. The applications that the commission examined most recently were on Thursday 21 May 2020. These will be reported in the next ecclesiastical law round up. The next meeting of the CFCE is on Wednesday 15 July 2020.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here