Review of the ecclesiastical court judgments during October 2020 

Four consistory court judgments were circulated in October relating to Reordering, extensions & other building works, Churchyards and burial and Fonts. This summary also includes CDM Decisions and Safeguarding, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Reordering, extensions & other building works

Reordering and alternative uses

Re St. Mary Lowgate, Hull [2020] ECC Yor 2 The petitioners sought permission for a reordering of the church, including: removal of pews from the aisles and replacement of the pew platforms with flagstones; new heating system; renewal of the electrics; installation of new WCs; a new clergy vestry; a space for meetings and workshops; and an area for refreshments (later to become a full kitchen) [16].

An unusual feature of this church in the nineteenth century was that three successive vicars were succeeding generations of the Scott family, each named John Scott. The first John Scott was vicar from 1816 until his death in 1834; his son followed him as vicar between 1834 and 1865; and his son was vicar from 1865 to 1885 [3]. The first John Scott was of an evangelical persuasion, as was the second [4]. However, The third John Scott was of a different theological persuasion from his father: “[he] further embraced the principles of the influential Oxford Movement. He introduced a surplice choir and began the tradition of ceremonial sacramental emphasis in worship. In 1877, he brought back choir stalls, desks, credences and sedilla with Gothic detail. Some excellent Clayton & Bell stained glass was added, and the east window importantly incorporated the four surviving heraldic pieces of the fifteenth century [7]. The church is now Grade II* listed., and “[the] Anglo-Catholic tradition with its emphasis on sacramental worship and social action has continued to the present time” [9], [10].

A faculty was obtained in 2017 temporarily to remove into storage pews from the inner and outer south aisles and to raise certain areas of aisle floor to the level of the pew-platforms. In 2019 a faculty was granted to remove and permanently dispose of the un-playable pipe organ (Brindley & Foster 1904) for which they had failed to find a buyer and no regional organ builders wanted it [14]. By late 2019 they were in a position to put forward their final proposals for an extensive reordering to the DAC and to consult with CBC, Historic England (HE) and the relevant amenity societies, in this case the Victorian Society (VS) and SPAB [15].

The Society for the Protection of Ancient Buildings and the Victorian Society had reservations about the proposals, the latter being particularly concerned about the removal of Victorian tiles from the aisles [19] to [36]. Photographs of the tiles are included in the judgment, taken by the Chancellor during his visit on 21 October, on which he noted:

“[4]]. The enormity of the task of repair or replacement was immediately apparent. It was quite clear that there would not be a sufficient number of tiles that could be salvaged to relay the aisles in full.”

The points raised by SPAB, VS and CBC were considered against the 5 question test in Re St. Alkmund, Duffield [2013] Fam 158, [41] to [70], the Chancellor, HH Canon Peter Collier QC, commenting “I am of course very familiar [with the test], having been a member of the court”.

He granted a faculty, being satisfied that there was a clear justification for the proposals and that any harm to the significance of the church as a building of special architectural or historic interest would not be substantial. [Re St. Mary Lowgate, Hull [2020] ECC Yor 2] [Top of section] [Top of page]

Churchyards and burials

• Development of churchyard and repairs
• Churchyard Regulations
• Designation of closed churchyard

Development of churchyard and repairs

Re St. Michael the Archangel Emley [2020] ECC Lee 2 The incumbent and churchwardens sought a faculty to authorise the repair of the churchyard wall in two areas using traditional methods, reusing existing stone and to existing line, with localised excavation [2]. One of the adjoining owners objected on the ground that work should not be done without work on the roots of some adjacent trees. The Chancellor noted that the objection was surprising the objector would be the principal beneficiary of the proposed work; a wall which has fallen onto her property (in 2014) would be rebuilt [4]. He noted [emphasis in original]:

“[9] Had Dr Calpin [the objector] elected to be a party to these proceedings she could have cross-petitioned for a faculty in relation to the trees but she has chosen not to do so. As a party she could have led evidence on the state of the trees which the Court could have considered, but again she has chosen not to do so. She has chosen simply to object to the grant of a faculty for the repair of the wall.”

[10]. The function of the Consistory Court is modest, namely to determine whether or not to grant a faculty permitting the work specified in the petition. It is not its role to enter into neighbour disputes nor to determine matters, such as a claim in nuisance, which are properly the subject of proceedings in the civil courts.

[11]. A faculty is a permissive right. It allows something to be done but does not compel it. It will be a matter for the PCC to consider what further consents and permissions might also be necessary. They will need authority for workmen to enter Dr Calpin’s land and that of her neighbour. If TPOs [Tree Preservation Orders] are in place, then work to those trees will require local authority consent, and the removal of trees in the churchyard (should this be required) may require a further faculty.

[12]. But the issue for the Court in the current proceedings is a short one, namely should a faculty be granted permitting the repair of the churchyard wall? Unquestionably it should. The case is overwhelming. Whether that faculty can be implemented and whether further permissions might also be needed are not matters on which this Court can or should express a view.

[13]. In the circumstances a faculty may pass the seal. The faculty will lapse if the works are not carried out within two years. The Court fees will be borne by the petitioners, payable within 21 days.

The Chancellor expressed the hope that the parties could resolve their differences regarding the trees. [Re St. Michael the Archangel Emley [2020] ECC Lee 2] [Top of section] [Top of post]

Churchyard Regulations

Re St. Mary West Chiltington [2020] ECC Chi 6 A separate case note will be posted in due course; the Ecclesiastical Law Association summary of the case is reproduced below:

“The petitioner sought a confirmatory faculty to permit the retention of some kerbs and slate chippings which were introduced at the grave of his late father without the prior authority of a faculty. The petitioner later gave notice that he wished to withdraw his petition. In his judgment, the Chancellor granted leave to withdraw the petition and stated that, as a consequence, a retrospective faculty could not be granted; the kerbs and chippings should be removed to a secure place and, if the kerbs and chippings were not removed by the petitioner within 6 weeks, the churchwardens could remove them and dispose of them as they wished.”

[Re St. Mary West Chiltington [2020] ECC Chi 6] [Top of section] [Top of page]

Designation of closed churchyard

See Privy Council Business, below.

Fonts

Re St. Andrew Ferring [2020] ECC Chi 5 The  petitioners sought permission for the installation of a new font bowl and a new stained glass window, which would replace a clear glass window near the font. There were two letters of objection in respect of the window. The bowl, which is of a modern design, will fit snugly within the font and appears uncontroversial; it is the proposed stained glass window which has drawn adverse comment in the form of two emails [3].

The following opinions have emerged in the consultation process: Historic England did not wish to offer any comment; the Society for the Protection of Ancient Buildings stated: ‘We generally do not comment on proposals for new stained glass windows unless there will be a loss of historic fabric to enable the new window to be installed’; 6.3 Planning Permission for the window was granted by Arun District Council; the DAC recommended the proposal for approval (Notification of Advice of 23 June 2020 [6]. The PCC approved both the design and the statement from the artist, Mel Howse, a highly regarded and award winning glass artist, concerning the baptism window [8].

Applying the principles laid down in Re St. Alkmund Duffield [2012] (Court of Arches), the Chancellor stated:

“[11]. In this instance, notwithstanding that this is a grade I listed church, I consider the likely harm to the building to be minimal. The plain glass to be replaced is of no particular historic or other value. None of the professional consultees suggest that harm might result and the SPAB, whose advice is always careful and considered carries the clear implication that there will be no loss of historic fabric to enable the new window to be installed.
[12]. The justification seems to be well made. A generous benefaction will allows the works to proceed, without presenting a burden on otherwise scarce resources.

He was satisfied that any harm to the building would be minimal and that the design was appropriate. Faculty granted. [Re St. Andrew Ferring [2020] ECC Chi 5] [Top of section] [Top of post]

Privy Council Business

General Synod of the Church of England (Postponement of Elections) (Amendment) Order 2020 SI 2020/1123

The Privy Council Meeting on 14 October 2020 considered the General Synod of the Church of England (Postponement of Elections) (Amendment) Order 2020 SI 2020/1123 which was made under section 84 of the Coronavirus Act 2020. This Order amends the first Order made under that section, SI 2020/526, by inserting a new Article 4 to make consequential provision about the membership of the Cathedrals Fabric Commission for England. Under paragraph 7 of Schedule 1 to the Care of Cathedrals Measure 2011, membership of the Commission is for a fixed term of five years, which is expressed to begin on the 1st May in the year following that in which the General Synod was last dissolved. Accordingly, the term of office of each current member of the Commission is due to expire on 30th April 2021, before the General Synod will have been dissolved.

The new Article 4 resolves that issue by providing for each person’s membership of the Commission to continue until the 30th April in the year following that in which the next dissolution of the General Synod takes place (unless any particular person ceases to be a member of the Commission for some other reason before that date).

In the House of Lords on 22 October, The Lord Bishop of London moved “That this House do direct that, ins accordance with the Church of England Assembly (Powers) Act 1919, the General Synod (Remote Meetings) (Temporary Standing Orders) Measure be presented to Her Majesty for the Royal Assent.” Motion agreed.

All Saints Churchyard, Burstwick, Hull; St John the Evangelist Churchyard, Dewsbury Moor; St Mary The Virgin Churchyard, Sellindge, Kent; St Andrew’s Churchyard, Northover, Ilchester.

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 certain exceptions, burials should be discontinued in:

1) All Saints Churchyard, Burstwick, Hull, East Riding of Yorkshire;
2) St John the Evangelist Churchyard, Dewsbury Moor, Dewsbury, West Yorkshire;
3) St Mary The Virgin Churchyard, Sellindge, Kent and ;
4) St Andrew’s Churchyard, Northover, Ilchester, Somerset.

All Saints Churchyard, Crawley Down, West Sussex

“Her Majesty in Council is 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 November 2020.

And Her Majesty is 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 November 2020.”

Representations were duly made to Her Majesty in Council by the Secretary of State for Justice that, subject to the exceptions below, burials should be  discontinued forthwith in All Saints Churchyard, Crawley Down, West Sussex.

In pursuance of the Order in Council made on 12th February 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 the place listed above, subject to the [certain] exceptions.

CDM Decisions and Safeguarding

• Stowe & Maids Moreton parishes: Independent safeguarding report,  the findings from the independent review into events in the parishes of Stowe and Maids Moreton; these concerned the murder of Peter Farquhar, a vulnerable member of the local church, by Ben Field, who also had roles within the church. In addition to the Press Release, reproduced below, the Diocese has published a summary briefing including the recommendations and diocesan responses, links to a “Seven Minute Briefing” and The Independent Safeguarding Review: lessons learnt from events in the parishes of Stowe and Maids Moreton, 2012-2019.
• A Betrayal of Trust, the independent report into the Church’s handling of the allegations concerning the late Hubert Victor Whitsey, former Bishop of Chester, 22 October 2020.  The review was withdrawn, but has now been republished following the resolution of a legal issue.
• PCR2 Reference Group for National Church Institutions and Archbishops publishes terms of reference, Terms of Reference for the ‘PCR2 Reference Group’ which will oversee Past Cases Review 2 for the National Church Institutions, 12 October 2020.
• IICSA Investigation report, The Anglican Church Investigation Report, 6 October 2020.
• Statement on publication of IICSA report, From the Bishop of Huddersfield, Jonathan Gibbs, the Church of England’s lead safeguarding bishop and Melissa Caslake the Church’s national director of safeguarding, 6 October 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. The determinations, made on Thursday 17 September, are summarized below, The most recent meeting was on 29 September, and the next meeting of the CFCE is on 9 December.

Thursday 17 September

The following applications were discussed by video conference, and approved subject to conditions:

• Cathedral Church of Christ, Blessed Mary the Virgin and St Cuthbert of Durham: To extend the existing plaque of bishops, priors and deans to accommodate new names.
• Cathedral Church of St Peter in Exeter: Application for approval of a finalised lobby design to the Chapter house, in response to the CFCE and Amenity Society comments on two former proposals, and input by the Structural Engineer, Timber Fabrication Specialist and Glazing Specialist.
• Chapter of the Cathedral Church of St Peter and the Holy and Undivided Trinity, Gloucester: To conserve the west window of the tower, located high above the western end of the Cathedral Quire. Various works including:

– De-glaze, clean and assess the individual panels at a specialist glazing workshop.
– Address buckled lights and other deficiencies; conserve panels without re-leading where possible.
– Retain the original medieval support bar and treat for rust in situ as far as possible. Minor bars will be replaced with matching non-ferrous bars.
– Masonry will be cleaned, conserved, repaired or replaced.
– Once the masonry work is complete, the existing glazed panels will be re-installed with internally ventilated external protective glazing (EPG) along with remote-sensing environmental monitoring in and around the glass.

• Chapter of the Cathedral Church of St Mary the Virgin and Saint Ethelbert the King, Hereford. T

– To move the font from its existing position to a new position at the west end of the nave
– To rotate the protomes at the base of the font stem through forty-five degrees, so that they no longer present a tripping hazard.
– To create a new plinth (larger than the existing one) on which to mount the font, that is –
a) large enough to accommodate a priest and a deacon when baptising, and
b) large enough to accommodate three administrants standing on it, when it is used as a communion station during services attended by a large congregation.
– To install drainage for the font in its proposed location.

Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

General/Miscellaneous

• Stowe & Maids Moreton parishes: Independent safeguarding report, 23 October 2020. The Diocese of Oxford published the findings from the independent review into events in the parishes of Stowe and Maids Moreton; these concerned the murder of Peter Farquhar, a vulnerable member of the local church, by Ben Field, who also had roles within the church. In addition to the Press Release, reproduced below, the Diocese has published a summary briefing including the recommendations and diocesan responses, links to a “Seven Minute Briefing” and The Independent Safeguarding Review: lessons learnt from events in the parishes of Stowe and Maids Moreton, 2012-2019.
• A disputed burial: Ganoun, 30 October 2020. An unusual case, originally aimed at stopping a burial, which triggered the sudden burial of the deceased, in response to the pre-action notice.

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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.