Review of the ecclesiastical court judgments during December 2020
The three consistory court judgments circulated in December 2020 concerned reordering, exhumation and churchyard regulations. This summary also reviews Privy Council Business, and CFCE Determinations, and provides links to other posts relating to ecclesiastical law.
Reordering, extensions & other building works
Other building works, including re-roofing
Re St. Peter & St. Paul Buckingham  ECC Oxf 7 The rector and churchwardens applied for a faculty to permit the re-ordering of the Lady Chapel to include the re-instatement of the Victorian St. Peter & St. Paul stained glass window to its original position, the disposal of the altar, the riddel posts and the canopy (all designed by Sir Charles Nicholson), the adaptation of the panelling, and associated works (including electrical works, redecoration and making good). Important moveable artefacts (the medieval pew end/kneeling desk and the Victorian lectern) will be placed in more prominent and accessible positions within the church building, and since paragraph 25 of the petition was drafted, the petitioners succeeded in finding a new home for the entire Nicholson altar at the Anglo-Catholic church of St. Thomas, Kensal Green, in the Diocese of London .
The petitioners assert that these proposals will enhance the architectural integrity of the church building by removing a later, 20th century addition that detracts from the Victorian structure. The present “unwelcoming, disorderly clutter, and the oppressive lighting of the area”, will be resolved, producing an area that is much more welcoming and uplifting, in keeping with the rest of the church building. The proposals will not affect any of the significant items in the church or its architecture .
The proposals have the full support of the PCC; they have been recommended for approval by the DAC, despite their advice that the works are likely to affect the character of the church as a building of special architectural or historic interest. Notice of the proposals was published on the diocesan web-site pursuant to FJR 9.9 but no objections were received in response to such publication .
The Victorian Society was content with the proposals, and welcomed the reinstatement of the original stained glass window. Historic England, the CBC and the Twentieth Century Society were all consulted, and were all content with the proposal on the basis that the Nicholson altar will be re-located in its entirety, and as a single piece, to St. Thomas, Kensal Town, and that the angels and riddel posts will not be separated from the altarpiece .
Applying the Duffield guidelines, the court was satisfied that the proposals would cause only moderate harm to the setting, the appearance and the significance of the church building and that such harm was greatly outweighed by the benefits that the works will bring The court was satisfied that the petitioners had made out a clear and convincing justification for the proposals. Faculty granted subject to conditions [9, 10]. [Re St. Peter & St. Paul Buckingham  ECC Oxf 7] [Top of section] [Top of post]
Removal and replacement of pews &c
Bath Abbey Pews
The replacement of the pews in Bath Abbey was major component of its Footprint Project, a £19.3 million programme of capital works and interpretation which will provide innovative and sustainable solutions to the community’s needs. In our post Bath Abbey pews: refusal of permission to appeal we reported the judgment of the Arches Court and its refusal of the Victorian Society appeal on the removal of pews in the Abbey, Re Bath Abbey  EACC 1.
The website Bath Abbey Pews is currently offering for sale some of the pew that were removed following the judgment:
“Each piece is hand-made, crafted from English Oak and finished with two, unique, custom designs on each end of the pew. The designs reflect a number of influences on Sir Gilbert Scott and include a number of designs taken from within the abbey and based upon its stonework, memorials and stained glass windows.
Each piece was crafted, installed and remained in place until its removal between 2015 and 2018. Each is a unique treasure and memorial to a great Abbey, a great designer and a great story.”
Re St. John Washborough  ECC Lin 4 A couple had planned to be buried in a double grave. The husband died in 2006 and was duly buried in the grave; his wife died in 2020, but a trial dig two weeks before the planned funeral date made it clear that the husband’s coffin had not been buried sufficiently deep to allow the burial of a second coffin with enough earth above it. The Chancellor commented: “This is not the first time that such a problem has arisen in this churchyard”; we reported a similar issue in Re St. John Washborough  ECC Lin 6 . However, “The undertaker responsible for the interment…adopted a very responsible approach to the matter and is paying all the costs associated with this faculty and the proposed exhumation” .
The undertakers applied for a faculty to authorize the exhumation of the husband’s coffin to enable the grave to be dug deeper, in order to accommodate both coffins at sufficient depth. Noting the principles set out in Re Blagdon Cemetery  Fam 299, the Chancellor concluded [emphasis added]:
“. I am satisfied that the wholly exceptional circumstances which have arisen in this case justify an exhumation of [the deceased’s] remains to allow his grave to be dug to a double depth. A faculty for exhumation is required for this because t[he deceased’s] coffin and remains will be lifted from the ground: if the coffin could be kept beneath the surface of the ground while work was done around it, then a faculty for exhumation may not have been required. I make no finding upon this issue which has not been argued before me. However, it is clear that this is not proposed and there is no reason why his coffin cannot be lifted from the grave for this excavation work to be carried out: an exhumation is permitted.”
[As we noted in the earlier case at St. John Washborough ensuring that a coffin is maintained below the surface of the ground provides a rationale for the illegal practice of “coffin sliding”, as discussed in Re Fairmile Cemetery Lower Assendon  ECC Oxf 2.]
The Chancellor held that there were exceptional circumstances to justify the granting of a faculty, due to the mistake by the undertakers when the grave was originally dug in 2006. [Re St. John Washborough  ECC Lin 4] [Post] [Top of section] [Top of post]
Re St. Leonard Thrybergh  ECC She 2 On the advice of Area Dean/Chancellor the petitioners were instructed to apply for the removal of the headstone in the cemetery that was placed on grave by Mr Nicholas Roberts after permission was refused by Area Dean . The DAC had considered the petition and recommended that the works be approved. Although discussions about the correct process took place with the then Diocesan Registrar, neither the Chancellor nor the Deputy Chancellor had been involved or consulted until the matter fell to be considered on the online system .
The then Area Dean’s refusal of the application should have been communicated to the Mr Roberts shortly after 30th April 2019. However, in his position statement dated 12th July 2020, he stated that he had received no communication from the “Parish Council”. Nevertheless, he installed the memorial on 28th June 2020 without receiving permission to do so. The Chancellor inferred from his position statement that he had interpreted the taking of a fee on 1st May 2020, which had been submitted with his application by cheque as an implied permission. He admits that a refusal of permission was communicated to him but says that was not until 4th July 2020 and in different terms from the endorsement of the then area Dean . The Chancellor observed:
“. The documents explain that Mr Robert’s response to the [acting Area Dean’s] intervention was a forceful communication of his intention to do nothing to put things right and to ignore what the had said. He appeared to believe, as a stonemason, that there was nothing that could be done to enforce the position. It is further my understanding that a hostile social media campaign against the church and [the acting Area Dean] in particular was started and that other bereaved families with memorials in the churchyard were wrongly informed that their memorials were at risk of removal. A great deal of stress and distress was caused.”
The Worshipful Sarah L Singleton QC gave directions providing for the key documents to be sent to Mr Roberts, and for the Petitioners and Mr Roberts to each file position statements on specific aspects of the circumstances , on which they responded . After a detailed explanation of the law and discussion about how it is applied generally, here, the Chancellor considered the Guidance on Churchyards and Monuments, Sheffield DAC (2012) which were applicable to this case in 2019 . Although there is no express reference to “ledger stones” in the 2012 Rules, she noted that then Area Dean was quite correct to view this memorial as an equivalent to an installation of kerbs and to view it as outside his authority to authorize. However, she commented:
“. …had I been approached informally or asked to determine a petition to authorize the proposed memorial at the time, it is likely that I would have agreed to it having regard for the fact that churchyard maintenance is not affected by the installation and the presence of other similar memorials,”
and concluded [emphasis added]:
“. Mr Roberts’ installation of the memorial to his father was undertaken by him in the absence of express permission. I consider and find that he could and should have known that this was not acceptable or lawful. If the 30th April 2019 endorsement on the standard form declining his plans was not passed on to him in a timely way, then the course he should have pursued was to press the Area Dean or churchwardens for a response. It was not lawful or proper for him to press on regardless. Once he was informed that his standard application had been declined it was for him to seek an explanation or revision of that decision. It was for him, if necessary, to file a petition to authorize the installation after the event”.
“. When I survey those facts which Mr Roberts agrees or asserts himself, in conjunction with what is known from documents, I am able to conclude that he deliberately undertook an installation that he knew had not been authorized. He ignored approaches by the Reverend Wortley which asked him to rectify the situation by petitioning himself for authorization or removal. Instead, as he concedes, he started a ‘petition for the bereaved families of Thrybergh Churchyard for a joint faculty’. This is, I infer, a concession that he undertook social media activity which has caused distress to numbers of people and hostility to local clergy decision makers.”
. …[I have decided], considering that had he gone about things correctly I would have authorized the memorial, I should dismiss the petition for removal, thereby authorizing it to remain in the churchyard. However, having regard for the facts I have found and explained in this judgment, all the costs of these proceedings are to be paid by Mr Roberts within 28 days of the date of his receipt of this judgment and my directions, in the total sum of £687.44 in accordance with the schedule annexed to this judgment prepared in the Registry.”
[Re St. Leonard Thrybergh  ECC She 2] [Top of section] [Top of post]
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions & other building works
- Churches as vaccination centres, 8 December 2020.
- Minsters and Cathedrals, 7 December 2020.
At the meeting of the Privy Council held by the Queen at Windsor Castle on 16 December 2020, The Secretary of State for Justice, after giving ten days’ notice of his intention to do so, under the Burial Act 1853 as amended, made representations to Her Majesty in Council that, subject to the exceptions listed in the minutes, burials should be discontinued in: St John the Baptist Churchyard, East Farndon, Northamptonshire, and; Tower Churchyard & Wrinehill Road Churchyard, Wybunbury, Nantwich, Cheshire.
Her Majesty in Council was pleased to give Notice of these representations and to order that they be taken into consideration by a Committee of the Privy Council on 27th January 2021; And Her Majesty was 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 27 January 2021.
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, on 29 October 2020 and on 9 December 2020 when the following applications were approved, subject to conditions:
- Cathedral Church of The Holy and Undivided Trinity, Bristol. Removal of some stained-glass elements from the north transept window. The removal of features which identify the north transept window as the memorial window of Edward Colston.
- Cathedral Church of St Peter in Exeter. Approval of the following proposal:
Programme of conservation works to priority windows in the East End: Chapel of St John the Evangelist, East Window; Chapel of SS Saviours & Boniface, South & East Window; Lady Chapel, South Window to Bay 2; Chapel of St Gabriel, East & South Window.
- Cathedral Church of St Mary the Virgin and Saint Ethelbert the King, Hereford. The Chapter requested the approval for the loan of the Hereford 1217 Magna Carta (HCA 1516) and the 1215 King John’s Writ (HCA 2256) to the Museum of the Bible, Washington DC, USA for exhibition at the museum from April 2021 to October 2021.
- Cathedral of the Holy and Undivided Trinity of Norwich. For Norwich School to make alterations to secure the boundary around the Upper School Site.
- Cathedral of St Saviour and St Mary Overie, Southwark Access improvements to create step-free access to all ground level parts of the Cathedral church. The Determination made particular reference to the archaeological watching brief, and actions should human remains be uncovered.
- Cathedral Church of The Holy and Undivided Trinity, Carlisle. Retrospective application for temporary and reversible internal alterations to Bishop Smith Registry for use as a dry storage facility.
- 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. The reasons for the conditions was to ensure the protection of the archaeological resource, the proper and respectful treatment of human remains, that the investigations produce helpful results to inform the heating proposal and that the Commission is informed of the results of the excavation.
The next meeting of the CFCE is on Thursday 28 January 2021.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.