Review of the ecclesiastical court judgments during July 2020
Only three consistory court judgments were circulated in July, two featuring Reordering, extensions & other building works and the other, exhumation. This summary also includes Privy Council Business, and CFCE Determinations.
Re St. Michael Cropthorne  ECC Wor 4 The petitioners sought to create an accessible lean-to WC to the north of the nave with access from inside the church via the north door, and a tea-point at the west end of the south aisle . The installation of the tea point would require the shortening of four pews and one pew frontal. The Diocesan Advisory Committee recommended the proposed works, subject to a number of provisos  and the Church Buildings Council was content with the proposals . The Society for the Protection of Ancient Buildings (SPAB) – which had apparently intervened in 1896 to prevent the pews in the south-west corner being altered in a manner very similar to the current proposal – explicitly declined to make any comment on this occasion . Likewise the Victorian Society declined to comment . The local planning authority had been consulted, but had not yet made any comment; planning permission, not yet granted, will be required for the extension on the north side . Historic England was opposed to the shortening of the ancient pews, but did not become a party opponent [14,15].
In the light of the comments of the CBC and Historic England, the parish commissioned an assessment of the significance of the pews to be altered , on which the Chancellor noted:
“. … [the assessment by the historic buildings conservation consultants] wisely makes no attempt to justify or criticise the proposed works, merely commenting on the significance of the pews to be altered, which is the specialist area of expertise of the authors. That is commendable, in contrast to the approach of many consultants who attempt to undertake the balancing exercise (harm versus need) – a matter as to which they have no particular expertise.”
He further noted:
“. Various decisions of consistory courts since then have followed the principles set out in Duffield and Penshurst; they are still good law. Most recently, three decisions of consistory courts – Re St. Peter & St. Paul Aston Rowant  ECC Oxf 3, Re St. Michael Llanyblodwel  ECC Lic 6 and Re All Saints Wellington  ECC Lic 7 – have highlighted the desirability of considering whether an identified need could be met in a way that caused less harm than the proposal forming the subject of a petition.
The Chancellor decide to grant a faculty, being satisfied that only modest harm would be caused to the character of the building and that such harm as would be caused by the works would be more than outweighed by the resulting improvements to the way in which the church could be used for worship and mission. [Re St. Michael Cropthorne  ECC Wor 4] [Top of section] [Top of page]
Re St. Lawrence Appleby  ECC Car 1 The judgment, as set out in paragraphs 1 to 64, was first delivered on 13 May 2020, but was subsequently amended by the addition of an Addendum in the additional paragraphs 65 to 68, following a notification that important information had not been circulated to the Notices Parties.
The church is late 12 century, situated in Appleby town centre and within the Appleby Conservation Area and the Appleby Heritage Action Zone. It is located on low-lying ground beside the River Eden and in December 2015 and January 2016 suffered serious internal flooding to a considerable depth; this prompted a large number of proposals for remedial and other works which were considered by the Diocesan Advisory Committee [DAC] and were the subject of a site visit in May 2016 .
The last part of these post-flooding faculties related to the provision of simple kitchen facilities in a cupboard at the west end of the north aisle. However, the kitchen was not installed even though the DAC had recommended its approval, probably because of cost . The petitioners now sought to complete the work with a small kitchen/servery within a cupboard at the west end of the north aisle of the church; to remove some pews from the north aisle, to create a multi-purpose area, and to use wood from the removed pews for the servery cupboard; and to carry out some internal redecoration .
The Chancellor considered the proposals in relation to the questions identified by the Court of Arches 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  Fam 193, at para 39. He also agreed with and adopted the recent dicta of Hodge Ch in Re St. Mary the Virgin North Aston ECC Oxf 3 at para 19. He noted [emphasis added]:
“. Petitions for a faculty should set out with clarity what is proposed, enclose plans if appropriate and advance full reasons from the outset as to why it is believed such works are necessary or appropriate. I am far from convinced that that was fully done in this case in that I believe that the Petitioners have sought to respond to the points raised by the Noticed Parties rather than setting out their justification for what is proposed from the outset. Although such a practice is important in all cases, it is particularly important in cases involving Grade I and Grade II* listed churches where the Duffield principles, as explained above, are required to be applied because the petitioners have to show that the public benefit outweighs harm to the significance of the church as a building of special architectural or historic interest.
. If the parish decides to pursue further matters, and in particular those referred to in paras 14.1. and 14.2., it will be important that all relevant information is supplied and that there is full justification of why it is sought to undertake any further works.
Applying the Duffield questions, the Chancellor was satisfied that: the installation of a kitchen/servery would result in harm to the significance of the building as a building of special architectural or historic interest of this Grade I listed church; the degree of harm will be minimal or small; the justification for the provision of very modest catering facilities in a church which seeks to promote mission and outreach is self-evident; and the resulting public benefit undoubtedly outweighs such a minimal or small degree of harm.
Chancellor granted a faculty, subject to conditions that (a) some form of ventilation, to be approved by the Diocesan Advisory Committee, should be provided to protect the memorials next to the kitchen/servery and (b) any chairs chosen to replace the pew seating removed should be the subject of a separate faculty petition and consultation with the amenity societies
“ After the delivery of this judgment to the Petitioners and the Noticed Parties, VS [the Victorian Society] observed that no details of the chairs had been supplied to it prior to it being consulted and, after enquiry, I was satisfied that such was the case.
 In such circumstances I am satisfied that it would be inappropriate for me to make any decision in relation to the replacement chairs and thus I no longer adopt the approach set out in para 55 above.
 I thus advised both the Petitioners and VS, through the Diocesan Registrar, that, if both the Petitioners and VS agreed, I would make the following order,
[67.1]. the faculty sought by the Petitioners should be granted in respect of all the proposed works on condition that:
[67.1.1]. the existing wall memorials in the kitchen/servery area are to be left in place;
[67.1.2]. prior to the commencement of such works the means of ventilation and protection of the stone wall memorials is to be submitted to and approved by the DAC;
[67.2]. there shall be a further application for a faculty in relation to the provision of replacement chairs …
 The Petitioners and VS have agreed to the above order and I thus make an order in such terms.”
Re Lambeth Cemetery  ECC Swk 4 The petitioner sought to have the body of his son, who was stillborn in 1998, exhumed from an area of the cemetery set aside for the remains of children and reinterred in a burial chamber in the same cemetery with the body of the petitioner’s wife; she had died in 2020, the burial chamber being large enough for the petitioner’s remains to be interred in it in due course, thus creating a family grave [2,3]. The burial chamber is not consecrated; it was the petitioner’s intention that in due time he, too, should be interred there. [Footnote 1 states: “A burial chamber differs from a burial plot in that it is already excavated”]
At the date of the petition, the petitioner had not arranged for the interment of the remains of his wife. Having carefully considered the matter, Chancellor Petchey decided that this was an appropriate case in which a faculty might issue and he so directed on 23 July 2020, thus enabling the petitioner to make appropriate arrangements. He indicated that he would give his reasons later, and these are reported in the judgment, which contains a discussion of the approach of the courts in the leading cases relating to exhumation . The Chancellor commented:
“ It might be argued that the restrictions on the exhumation of human remains, which I shall describe below, do not apply to the remains of a child that is stillborn. I did not adopt such an approach in In re Wandsworth Cemetery, 23 November 2013 (Southwark Consistory Court). Since I am permitting exhumation of Crusoe’s remains despite the restrictions I describe, it is not necessary for me to consider this point further”.
The law pertaining to exhumation is reviewed in paragraphs  to  with particular reference to the the creation of a family grave  and conflicts arising from the differing interpretations in Re Blagdon Cemetery  Fam 299 and Re Christ Church, Alsager  Fam 142, . The Chancellor noted:
“. It is evidently undesirable that the law should be different in the different provinces in relation to a matter such as exhumation. Accordingly section 7 of the Church of England (Miscellaneous Provisions) Measure 2018 inserted a new section 14A (1) into the Ecclesiastical Jurisdiction and Care of Churches Measure 2018. This provided as follows:
‘A decision of the Arches Court of Canterbury or the Chancery Court of York is to be treated by the other Court, and by the lower ecclesiastical courts in the province of the other Court, as if it were a decision which the other Court had itself taken.’
. There is some helpful law on conflicting decisions of courts of equivalent jurisdictions, which has also been applied more widely and which I consider helpful in considering the correct approach to section 14A (1).
He cited that the principle enunciated and applied by Denning J in Minister of Pensions v Higham  2 KB 153, 168, and applied by Nourse LJ in Colchester Estates (Cardiff) v Carlton Industries plc  Ch 80 which was endorsed by Lord Neuberger of Abbotsbury MR in Patel v Secretary of State for the Home Department  1 WLR 63 at paragraph 59.
“. In the light of this high judicial pronouncements, it seems to me that I should start from the position that it is appropriate for me to follow Blagdon rather than Alsager unless there are particular reasons why I should not. I note the criticism of Blagdon in Bensham that the Court of Arches had strayed into theological realms where it had no business to be. Without wishing to express a view about that, it does seem, as Bursell QC Ch seems fairly to have accepted, that this is not directly related to the test for allowing exhumation, going rather to establish the norm of permanence (which was not in issue either in Alsager or Blagdon).
In applying the test in Blagdon to the present facts,
“ … there are five factors which together have led me to a conclusion that this is an appropriate case in which to make an exception to the norm of the permanence of Christian burial. These are that:
(i) Crusoe was still born; (ii) it is not possible for Mrs Armstrong’s body to be buried together with the remains of Crusoe, in the area of Lambeth Cemetery reserved for the burial of children; (iii) the tragically early death of Mrs Armstrong; (iv) the re-interment of Crusoe’s remains is within Lambeth Cemetery; (v) the re-interment is to establish a family grave.
He concluded [emphasis added]:
“. In the present case, it was generally important that I should decide whether I would apply the Blagdon test or the Alsager test…Until I decided otherwise Alsager existed as a potential precedent both as to the test to be applied and as to the application of the test. If I had taken the view that the Alsager test did apply, I think that it would have been difficult credibly to distinguish the facts of that case from the present and to have held that a faculty should issue. As it is, it will be seen that the facts of the present case bear some similarity to those of Blagdon.
. I should note that the chamber to which Crusoe’s remains will be transferred is not consecrated. The position in Blagdon was the same. It seems to me that there is no prospect of [the petitioner] or anyone else wanting hereafter to exhume Crusoe’s remains for a second time. Of more concern is the fact that the burial rights are for 50 years. I inquired about this and have been told that this means that after 50 years the right to inter remains in the burial chamber expires, not that the remains will be disturbed at that date.
The area where the burial chamber is located is not suitable for re-use. This is not quite the absolute assurance that one would like but in practice it is hard to see the remains hereafter being disturbed. The residual uncertainty does not seem to me to afford grounds for refusing a faculty.
. Finally, I have borne in mind in considering [the petitioner’s] petition that Article 8 of the European Convention on Human Rights (applied in law by the Human Rights Act 1998) is likely to be engaged. However I consider that the law of exhumation as applied by the Church of England is generally compliant with convention rights. In circumstances where the Court considers that it is appropriate to permit exhumation by reference to that law, it is not necessary to consider the Convention further.”
The Privy Council met on 21 July. The sole church-related business was the Order appointing The Most Reverend Stephen Cottrell a Member of Her Majesty’s Most Honourable Privy Council.
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 15 July 2020 when the following applications were discussed by video conference, and approved, subject to conditions:
- Cathedral Church of St Peter in Exeter. Application for a programme of archaeological investigations within the Cloister Garth of Exeter Cathedral, focused on the site of the east cloister walk.
- Cathedral Church of St Peter in Exeter. Programme of conservation, cleaning and local repairs to the North Porch stonework and gates. The works proposed include the re-instatement of the cross to eth staff of St Methodius.
- Cathedral Church of St Nicholas, Newcastle. Lighting refresh; Proposed AV system; St Margaret’s Chapel – removal of altar/cross and re-location of medieval effigy.
The next meeting of the CFCE is on 17 September 2020.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.