Review of the ecclesiastical court judgments during June
Nine consistory court judgments were circulated in June and featured: reordering, extensions & other building works; exhumation; and churchyards 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
Other building works, including re-roofing
Re St. Andrew Hingham  ECC Nor 2 The petitioners sought permission to install lavatories and re-locate the kitchen servery, and remove 10 pews from the end of the nave and 6 pews from the east end of the nave of the Grade I church. There is a total of 60 pews, all from the Victorian Arts and Crafts Period with finely carved pew ends . The objective of the reordering was to improve health and safety (trip incidents of around font due to congestion), create a better area for families during baptism, and to provide a more usable area for a wide range of activities alongside the provision of worship .
It was generally agreed that the proposed changes would result in a degree of harm to the significance of the church on the basis of Re St. Alkmund, Duffield  Fam 158 (referred to as “the test”). The Chancellor considered that in his judgment this would be a low degree of harm, and a strong need had been clearly established . The issues to be determined were the degree of harm caused by: removing any pews; and by the number of pews being removed . After reviewing the objections of the Victorian Society [10, 11] , he commented:
“. There is no dispute that the pews are impressive and that they make a marked contribution to the special historic and architectural features of the church. It is good practice to intervene to the minimum necessary for the demonstrable needs of the petitioners.
However, I consider there is one caveat to that. It is important churches assess what their needs are and produce coherent proposals for change. Piecemeal changes have their own dangers and lead to fresh proposals sooner rather than later.”
The Church Buildings Council did not object to the proposal and Historic England felt that its concerns had been met, particularly in respect of the pews, and on balance did not wish to object to the proposals . The Chancellor agreed with the general view that the proposal, apart from the removal of the pews, is justified and any harm caused, in the sense of the legal test, is justified by the need. The harm is low and the need is clear, convincing and also long-standing . With regard to the pews, he assessed the harm caused here is moderate, and as far as the need is concerned, he was satisfied that there is a substantial need to create a more flexible space for those who will be using the church for additional activities particularly when the new facilities are in place. He also accept that thought has been given to the aesthetic of the space as a whole in formulating these proposals. He was satisfied that the moderate degree of harm is justified by this need . Faculty granted. [Re St. Andrew Hingham  ECC Nor 2] [Top of section] [Top of post]
Re St. George’s Minster Doncaster  ECC She 2 The proposed works included the installation of four toilets and a foldaway servery at the east end of the north aisle of this Grade I listed church. The works required the removal of 18 pews with associated pew platforms, together with the removal of central heating and pipework from the pews. The floor would be excavated and a new floor laid with underfloor heating installed. This would also involve the relocation of two memorial features .
The Petitioners’ hope and intention was that these works would be the first step to a greater re-ordering plan. During 2018 an association between the Minster team, the local authority and local businesses was formed to drive forward a scheme for restoration and change at the Minster . The long-term aspirations are not a component of the present petition, but after the reviewing the objections of the Victorian Society, the Chancellor observed :
“Evidently the Victorian Society are setting a marker of trenchant opposition to the more radical aspirations for the re-ordering of the Minster. They do not accept that 18 pews need to be removed to fulfil what they do appear to concede is an urgent need for toilets and a servery”.
However, she made clear that “this judgment in no way seeks to pre-judge or evaluate the next stage of the overall project”  and considered “the Petition as a freestanding matter, whilst noting, of course, the respective positions of the Petitioners and the commenters and objectors as to the proposed next phase ”.
The need for the proposed works was set out as below
“. The Minster in Doncaster is an iconic building which features in almost every photographic image of the town…The Petitioners are able, however, to demonstrate convincingly that more extensive use of the church is hindered by the remarkable absence of any toilets or drinking water or hand washing facilities or any facilities to make refreshments in the Minster itself…The consequence is that wider use of this Doncaster icon by its local community is inhibited and opportunities to generate income are being lost.
The works that are proposed by this petition go some way to reduce the building’s deficiencies as a venue for events. They will cost £215,000 and funds are largely in place for them to be undertaken and I can see that they need to be undertaken as soon as possible.”
Historic England stated [Chancellor’s underlining]:
“. …We therefore do not object to proposals that constitute the stage I faculty application. The “less than substantial” harm which would be caused through the removal of the pews should be weighed against the benefits of the proposals as outlined in the Statement of Need”.
The Victorian Society, whilst accepting that some pews needed to be removed, regarded 18 as too many: “The proposed facilities would not require anything near eighteen benches worth of space, even accounting for an area of gathering space. If the use of the north aisle is to proceed with therefore us a few benches are removed than is currently envisaged” .
In reviewing the Petition according to the guidance in Re St. Alkmund, Duffield  Fam 158, the Chancellor noted that the Petitioners had developed a plan which he considered to be the least damaging possible in the context of this paragraph to achieve what they say is crucially necessary for this church . She was satisfied that the petitioners had made a good case for the proposals, which would provide some much-needed basic facilities, and granted a faculty. [Re St. George’s Minster Doncaster  ECC She 2] [Top of section] [Top of post]
Re St. Bartholomew Brighton  ECC Chi 2 A faculty was sought for various building works to this Grade I church . However, the description omitted to mention that the works in question had largely been completed, and when this was drawn to the attention of the court, Hill Ch directed that the works cease and that a confirmatory faculty was sought . The PCC applied for the court’s directions to be ‘set aside while the necessary action required is undertaken’, but since the PCC was not a party to the proceedings, nor was it required to take any action under the directions, that application was dismissed . With regard to the circumstances in which the works came to be undertaken
“the evidence of the principal parties [was] not entirely consistent. Whilst the churchwardens now effectively concede that the works were unauthorised and were carried out under a misapprehension, the inspecting architect’s contention is that the works came within List A and accordingly no faculty was required. The contractor’s position is that he took it on trust that the requisite permissions were in place” .
In their evidence, which is “recited extensively” in paragraphs  to , the petitioners and additional parties advanced a number of justifications for the unlawful works. These justifications are reviewed and rebutted by the Chancellor  to . In sum, he could find no justification for proceeding with these works on any of the bases advanced by the various parties: the introduction of the kitchenette required the prior authority of a faculty and none was sought. It was therefore necessary to consider whether, in all the circumstances of the case, a confirmatory faculty should now be granted .
“. The test to be applied when the court is considering whether to grant a confirmatory faculty is the assessment of whether a faculty would have been granted had it been sought prospectively. In many instances, this hypothetical question is straightforward and admits of only one answer. In others, the matter is more finely balanced. Had the churchwardens, aided by the inspecting architect and contractor, not circumvented the faculty jurisdiction, they would have had to consult the DAC whose advice might have been rather different had it not been presented with a fait accompli.”
Applying the Duffield framework, “it therefore follows that the ordinary presumption in faculty proceedings ‘in favour of things as they stand’ is applicable, and can be rebutted more or less readily, depending on the particular nature of the proposals. It is unnecessary to consider the remaining questions” . Furthermore, the handwritten Statement of Needs made out a cogent case for the introduction of the
kitchenette,  and the DAC recommended that a retrospective faculty may issue , although had it been consulted in advance, a more ambitious project could have been explored . The Chancellor considered refusing this petition and encouraging the parish to re-think its proposals for providing refreshments but,
“having regard to the fact that current works are almost complete and that a considerable sum has been expended in getting thus far, [he considered] it disproportionate to order these works to be ripped out and begun again with a better and more imaginative project. We are where we are” .
In granting a faculty, subject to conditions, the Chancellor made it clear that these new works did not come within the list of works which could be carried out without faculty and that what had already been done had been carried out unlawfully. He directed that the costs of the application should be shared between the churchwardens, the architect and the contractor, who were “fortunate that a confirmatory faculty has been granted, otherwise they would also have had to bear the cost of reversing the unlawful works and making good” .
[Re St. Bartholomew Brighton  ECC Chi 2] [Post] [Top of section] [Top of post]
Re All Saints Hove  ECC Chi 3 The works described in the petition relating to this Grade I church, “of outstanding significance for the extraordinary quality of its architectural design and furnishings”, were:
“. …Provision of a new café in the west end of the church including new freestanding café servery and food prep kitchen; integrated chair store; new services for the above (water, power, drainage); new glazed door to south porch; new loose café furniture and welcome desk.”
The petition was unopposed  to , and the only dissenting voice was that of the Victorian Society, which expresses reservations about the proposed chair storage, and suggested that the open servery could be replaced by one capable of being closed . The Chancellor, however, was satisfied with the two proposals. The Victorian Society also suggested that the choice of chair for the café area could be linked with a more holistic reordering of the seating in the church.
The Chancellor granted a faculty subject to conditions, including a requirement that within five years the parish should put forward proposals for replacing the existing folding chairs in the body of the church. [Re All Saints Hove  ECC Chi 3] [Top of section] [Top of post]
Re St. Leonard Badlesmere  ECC Can 3 The priest-in-charge and churchwardens sought a confirmatory faculty for replacement of the nave and chancel ceilings and partial redecoration of the interior of the church, including the reredos panels . At the preliminary hearing, the Chancellor directed that the Petition be amended by the deleting of the word “retrospective”, explaining that a confirmatory faculty cannot operate to legalise unauthorised works retrospectively, although it may confirm their lawfulness for the future, In Re St Mary’s Balham,  1 AER 993, 995-996. In addition, since it was apparent that the walls of the church and reredos panels had been the subject of redecoration, and he directed that the Petition be further amended by the addition of the words after “interior”: “namely the painting of the nave and chancel ceilings and walls and the reredos panels” .
In summary of the events,
“. …the history…began in the late autumn of 2018, when the Churchwardens properly reported to the DAC Secretary a fall of plaster from the western end of the church ceiling [putting] forward a quotation from a local builder…who had done works at a nearby church and at Leeds Castle and was therefore regarded as an appropriate contractor. Following advice from the DAC, [the Chancellor] granted an interim faculty to authorise the necessary repair work, on condition, amongst other things, that a confirmatory faculty be sought within three months.
. In January 2019…a conservation architect of great experience, contacted the DAC Secretary on behalf of the Parish to say that, in his view, work beyond the specific repair authorised by the interim faculty was required because further failures were likely…it then transpired that not only the authorised work, but also re-plastering and decoration of the whole ceiling and walls, had been undertaken”.
Two DAC architects inspected the works and concern was expressed because modern artificial fibre had been utilised in the plaster and there was lack of clarity about the type of paint employed . In January 2020, the PCC appointed a new inspecting architect, who set about helping the Petitioners prepare to submit the confirmatory faculty petition. As part of these preparations, he undertook a full, forensic investigation of what had been done, which is summarized in paragraph 9.
Applying the principles outlined in principles in Re St. Alkmund, Duffield  Fam 158 and Re St John the Baptist, Penshurst (2015) 17 Ecc LJ 393, the Commissary General considered that there was some minor harm to the significance of the Grade II* building, but accepted the expert evidence that it would do more harm than good, in physical terms, to strip out the work and start again. She accordingly granted a confirmatory faculty, subject to a condition that the work done should be monitored and reported on annually by the church architect for a period of ten years. [Re St. Leonard Badlesmere  ECC Can 3] [Top of section] [Top of post]
Removal and replacement of pews &c
Re Holy Trinity Rivington  ECC Man 1 The Petitioners sought a faculty for the “rearrangement of pews to create a versatile space”; this would involve the rearrangement of three pews at the western end on the south side of the nave and, apart from one pew, their re-location against the south wall to form an enclosed space which has pews on three sides . The pews are the bench type and were installed in 1862, at the same time the centre aisle was introduced – previously there had been a north and a south aisle. The Petition had the unanimous support of the PCC , although the Public Notice gave rise to a large number of `objections` . Each of these was either resident in the parish or on the electoral roll of the parish or were deemed by the Chancellor, after appropriate enquiry, to be an interested person who had a right to have their objections taken into account . Rivington is a very rural parish with an electoral roll of almost 100 very few of whom live in the parish . None chose to become a party opponent, although the Chancellor confirmed that, in deciding whether the grant a faculty, he too into account all the views of those referred to in paragraph 10.
He applied the tests in Re St. Alkmund, Duffield  Fam 158 at para 87, as affirmed and clarified by that Court`s later decision in the cases of Re St John the Baptist, Penshurst (2015) 17 Ecc LJ 393 at para 22 and Re St. Peter Shipton Bellinger  Court of Arches at para 39, [19, 20]. Additionally, the recent dicta of Hodge Ch in Re St. Mary the Virgin North Aston  ECC Oxf 3 at para 19 was cited with approval.
Commenting on the points raised by the objectors, summarized in  to , Chancellor Tattersall said:
“. Although, as appears below, I have concluded that these objections are not sufficient to persuade me not to grant the faculty sought, it is important that I should expressly record that each of the objectors made their objections in a clear and concise way and that I have no doubt as to the sincerity of the views that they have each expressed.”
After considering the response of the Petitioners,  to , he said:
. Applying the Duffield questions, I am satisfied that the removal of the pews will not result in harm to the significance of this Grade II listed building as a building of special architectural or historic interest. Having so found, I am required to ask myself whether the Petitioners shown a sufficiently good reason for change to overcome the ordinary presumption that in the absence of a good reason change should not be permitted?
Having carefully considered all the objections set out above, the Chancellor was satisfied that the Petitioners had shown a sufficiently good reason for change to overcome such presumption for the very modest proposals. [Re Holy Trinity Rivington  ECC Man 1] [Top of section] [Top of post]
Re St. John the Baptist Suckley  ECC Wor 3 In 2015 the parish had embarked on an extensive set of reordering proposals, which had been the subject of faculty petitions in 2015,  to , and 2017,  to . A further faculty was granted on 11 June 2018, and the present application requests another amendment to that described in  to . The petitioners now wished to replace some of the pews with the Alpha SB2M chair, a metal-framed chair upholstered in a beige, wipeable, stain-resistant fabric, instead of the Chorus Theo (all wood) chair which had originally been proposed .
The Chancellor stated:
“. … the substitution of one type of freestanding chair for another was capable of being authorised by an amendment to the existing faculty, without the need to submit a completely new petition. However, the amended specification would need to be the subject of consultation with all of the bodies notified of the original proposal – that is, Historic England, the Victorian Society and the local planning authority (Malvern Hills District Council). I would also wish to be told the views of the Diocesan Advisory Committee (DAC)”.
The Chancellor quoted the representations of the Victorian Society and the DAC in full, “as they [seemed] to encapsulate eloquently two opposing views as to proposals of this type. The Victorian Society argued that a metal-framed upholstered chair would not fit in with the remaining pews [27,28]; however, the DAC was content with the change . Noting that the number of chairs proposed to be purchased is 90, not 40, he agreed with both the Victorian Society and the DAC that the chairs and pews should be seen together, as part of a whole church interior [33,34]. However, he gave relatively little weight to the cost of the two alternatives:
“. … the original scheme was then estimated to cost £300,000; experience suggests that it would have ended up costing at least £400,000. Against figures such as those, the £14,000 saving made by choosing one type of chair rather than another is relatively minor – and would not justify the selection of a type of chair that was practically or aesthetically unsatisfactory”.
The Chancellor took the view that “no modern chair, however designed, will match a Victorian pew”, and he could see “no particular basis for a general rule against upholstered chairs in listed churches:
“. …as to which type of chair is more aesthetically appropriate, I consider that a block of either 40 or 90 new chairs will look like a large block of new chairs, however well-designed each one may be. Those who prefer pews will not like either; those who prefer chairs will prefer either by comparison with a pew. Both of the two chairs under consideration in this case appear to be adequately attractive; beauty, as is commonly recognised, is in the eye of the beholder”.
He granted permission for either chair to be installed. [Re St. John the Baptist Suckley  ECC Wor 3] [Top of section] [Top of page]
Re Holy Cross Epperstone  ECC S&N 1 The petitioner’s father’s cremated remains were interred in Epperstone churchyard in Nottinghamshire in 2004. After he died, the petitioner moved to Bradford-on-Avon . In 2013 the petitioner’s mother moved to a nursing home in Bradford-on-Avon and she died in 2018. The petitioner wished to have her father’s ashes exhumed from Epperstone churchyard and interred with her mother’s ashes in Bradford-on-Avon, because it would be inconvenient for the petitioner to travel regularly between Bradford-on-Avon and Nottinghamshire to visit her father’s grave .
Chancellor Ockelton invited the petitioner and those close to her to look at the judgment of this court in Re Bingham Cemetery  ECC S&N 1, in order to have some idea of the relevant legal principles, and to make any further submissions they wished in the light of it. He noted :
“They have done so. In addition, the Revd Anthony Giles, Vicar of Epperstone says, without reference to law or theology, that he ‘supports the desired outcome’ and there is consent from the managers of the relevant burial ground in Bradford-on-Avon, where there is a consecrated portion in which the ashes could be reburied.”
Referring to Re Bingham, the Chancellor refused to grant a faculty, as inconvenience did not amount to an exceptional reason for departing from the general principle that Christian burial is to be seen as permanent. [Re Holy Cross Epperstone  ECC S&N 1] [Top of section] [Top of page]
Re St Margaret’s Rottingdean  ECC Chi 4] The Judgment and Directions authorised an emergency faculty on Thursday, 11 June and a further emergency faculty was permitted on the afternoon of 15 June which provided a “temporary expedient” in the case of two headstones, the wording on which was deemed “deeply offensive”. The headstones have been move to an undisclosed location for secure keeping, pending the lodging of a petition for a confirmatory faculty before 15 December 2020. [Re St Margaret’s Rottingdean  ECC Chi 4] [Post] [Top of section] [Top of post]
Cookham Parish Council: environmental permit application advertisement, SL6 9ED The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/QB3796WS/A001. This is for the discharge of 0.75 cubic metre per day of secondary treated sewage effluent to groundwater at SU 88310 84062 from a septic tank with conversion unit.
Recent summaries of specific issues that have been considered in the consistory courts include:
- Of graves, headstones and “offensive” inscriptions: Re St Margaret’s Rottingdean, (17 June 2020).
- Captain Flinders navigates the law of burial, (1 June 2020).
At the meeting on 23 June 2020, it was reported that 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. Accordingly, Her Majesty, in exercise of the powers conferred on Her by section 1 of the Burial Act 1853, is pleased, by and with the advice of Her Privy Council, to order that burials shall be discontinued forthwith in:
- All Saints Churchyard, Pitsford, Northamptonshire;
- St Michael and All Angels’ Church, Leafield, Witney, Oxfordshire; and
- Old St Mark’s Churchyard, Low Moor, Bradford, West Yorkshire.
subject to conditions  and detailed in the attached plans [36 to 38].
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 Thursday 21 May when applications were approved, subject to conditions:
- Cathedral of the Holy and Undivided Trinity, Bristol: A major programme of refurbishment to the Bristol Cathedral organ case and Walker instrument. Restoration of the organ case , Approved s.t.c.; The rebuilding of the organ and its conversion to electro-pneumatic action, Approved s.t.c.; Addition of 32’ extension to the Pedal Trombone, Refused.
- Cathedral Church of St Peter in Exeter: Cyclical retreatment and local repairs to the Image Screen on the West Front, Approved s.t.c;
- Cathedral of the Holy and Undivided Trinity of Norwich: To install a new external memorial to commemorate Le Paradis, in the south east bay of St Saviour’s Chapel, Approved s.t.c;
- Cathedral of the Holy and Undivided Trinity of Norwich: To excavate a trench for the purposes of laying an IT duct outside 1 and 2 The Close (occupied by Norwich School), Approved s.t.c..
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.
Re St. Bartholomew Brighton  ECC Chi 2 Prompted by a report in The Church Times I’ve come back to this page and read the whole judgment. It is a salutary lesson for all churchwardens and PCCs. Some notable comments by Mark Hill Ch. are:
32. This strained justification has all the forensic plausibility of a 30 mile drive to Barnard Castle to test one’s eyesight. A1(2) reads ‘Repairs and replacement of fittings in existing kitchens, lavatories and office accommodation’ (emphasis added). By no stretch of the imagination could a tea urn and a tap constitute a kitchen. The intention was not to repair or replace, but to introduce something new.
35. Again, this has no relevance as it only concerns church halls and similar buildings (see above). Further, the particular text reads ‘The introduction, removal or disposal of furniture’. A wall-mounted boiler and sinks do not constitute furniture. A dictionary definition is probably unnecessary, but the Oxford Learner’s Dictionary defines furniture as ‘objects that can be moved, such as tables, chairs, and beds, that are put into a house or an office to make it
suitable for living or working in’.
61. I require a copy of this judgment to be sent to the Ecclesiastical Architects and Surveyors Association (whether or not Mr Graham is a member) and to the PCC secretaries of any other parishes where Mr Graham is currently the inspecting architect. Mr Graham might also wish to consider waiving or abating any professional fees he has levied in this matter. At best, his performance has been sub-optimal, and it has also placed Mr Tiplady in a difficult position from which he has learned a salutary lesson.