Ecclesiastical court judgments – January 2021

Review of the ecclesiastical court judgments during January 2021

The seven consistory court judgments which were circulated in January 2021 relate to Reordering, extensions & other building works, Exhumation, and Churchyard Regulations  and Trees. 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

Substantial reordering

Re St. Thomas the Martyr Newcastle upon Tyne [2021] ECC New 1 The catalyst behind the petition was the announcement by the Bishop of Newcastle in early 2018 of an award of £2.6M from the Church of England to help revitalize church life in Newcastle city centre. The grant was intended to see the creation of a new Resource Church, aimed at people between the ages of 17 and 45 with a projected 400-plus strong congregation within five years. Once established, the church will then drive growth across the whole of the Diocese of Newcastle, working with other churches in both urban and rural communities to stimulate growth. To that end, the Resource Church was launched in October 2019 to resource mission and ministry across the diocese [8].

“[9]. It is encouraging to note that, notwithstanding the short time that has elapsed since this initiative was announced, within 6 months the congregation had grown from 25 to over 200 with an average weekly attendance of 160…Its current style of worship and liturgy is reported to have a strong contemporary appeal such that the building is already working to its current capacity, a powerful limitation on development.”

“[10]. The current petition is predicated on the basis that the existing layout of the church building does not lend itself, effectively, to support how the Resource Church wants to engage with the younger demographics, support a team of staff and volunteers, engage the local community and grow its social outreach programme…”

The petition seeks to effect major re-ordering of the interior of the church so as to “release its full potential to become a church fit for a thriving church community in the C21st” to be achieved by the alterations and measures listed in paragraph [11]. It is contended that, notwithstanding the scale and vision of the changes, the values and mission of St Thomas’s will be preserved whilst respecting the heritage of the building and emphasizing the qualities of the original Dobson design.

Given the extent and scale of the proposals the DAC was engaged in July 2020, and subsequently, between 16 July and 8 September, the amenity societies. Dialogue was encouraged and took place in writing, virtual meetings and site visits. That process shaped the formulation of precisely what is sought. It was not, however, possible to reach a consensus with everyone with particular reference to:

  • the glazing in of the gallery;
  • the removal of the gallery pews;
  • the removal of the choir stalls

The Chancellor reviewed the views of: the Church Buildings Council [15]; Historic England [16]; the Ancient Monument Society [17]; the Georgian Group [18]; the Victorian Society [21]; and the DAC [22] to [25]. Applying Re St. Alkmund, Duffield [2013] Fam 158, he was satisfied that a faculty should issue. The proposals as a whole and in detail met a need that has been clearly identified and evidenced; the need outweighed the consequential loss of special architectural and/or historic interest that would necessarily follow. Faculty granted. [Re St. Thomas the Martyr Newcastle upon Tyne [2021] ECC New 1] [Top of section][ Top of post]

Re Holy Trinity Hull [2021] ECC Yor 1 The petition sought permission to undertake extensive works to the south side of Holy Trinity Church Hull, “also known as Hull Minster” [1]. These include:  the construction of extensions to the south side of the Grade I church to house a new toilet block; a kitchen and a cafe with a grill-pattern design on the western elevation; and an opening on to the adjoining Trinity Square [2].

Given the extensive nature and significance of the proposals and the implications  of the COVID-19 restrictions on people’s movement, the Chancellor directed that the Practice Direction [2020] No. 1 (as further amended on 10th November 2020) shall not apply to this petition; he set out alternative requirement on the display of Public Notices within the church. He also directed under Rule 9(2) that the Petitioners shall publish the details of the proposed works in a local daily newspaper and seek to achieve as much publicity therefrom as they are able [4]. The Registry received no comments following the publication of the notice in the Hull Mail on 2nd December 2020 and a subsequent article.

The judgment includes a review of the history of the development proposals, with photographs and illustrations, [7] to [14], the history to the proposal, [15] to [27]. the Statement of Need, [28] to [34], and the proposals themselves, [35] to [40].

The Society for the Protection of Ancient Buildings (SPAB) acted as the lead commentator for the amenity societies [44]. They acceded to the principle of the extensions and concentrated their response on some technical and practical matters about which they offered observations and advice. The Chancellor granted a faculty. [Re Holy Trinity Hull [2021] ECC Yor 1] [Top of section] [Top of post].


Exhumation

Family graves 

Re Bishopwearmouth Cemetery [2020] ECC Dur 1 The petitioner wished to have the body of her husband, who died in March 2018, exhumed from the cemetery in Sunderland, in order to have the body cremated and the ashes then taken to a parish in Northamptonshire to which the petitioner proposed to move [1]. The petition did not state what she originally intended to do with her husband’s remains after cremation [3]; it was later clarified that she intends to take the ashes with her to Northamptonshire where they would be interred with her own ashes in consecrated ground at a later date [5] and [7].

The Chancellor applied the guidelines set out by the Court of Arches decision in Re Blagdon Cemetery [2002] Fam 299. The petitioner did not rely, either in her petition or in her letter of 5 February, on any ground relating to psychiatric or psychological problems associated with the location of Mr Richardson’s grave. The Chancellor observed:

“[16]. If a faculty were granted the remains of Mr Richardson would be exhumed, cremated and, once Mrs Richardson had moved and settled in Northamptonshire, interred at a place with which Mr Richardson appears to have had no connection during his life and which would be a considerable distance away from the current place of rest.”

[17]. [The petitioner] is having difficulty coming to terms with the death of her husband. It was a long marriage, and her grief is natural and not unexpected. Unfortunately for [her], however, the reasons she puts forward for wishing to exhume his body do not amount to exceptional circumstances within the meaning of Blagdon so as to justify a departure from the norm of permanence. I therefore dismiss the petition.

[18]. The petition was advertised at Bishopwearmouth Cemetery from 8 February to 7 March 2020. No objections were received. However, if I had considered there were grounds under which the petition could have succeeded, I would have required the petitioner to trace the deceased’s children from his first marriage, so that special notice of the petition could be given to them, enabling them to make representations.

[Re Bishopwearmouth Cemetery [2020] ECC Dur 1] [Top of section] [Top]

Errors in burial

Re St. Michael and All Angels Figheldean [2021] ECC Sal 1 In October 2020, it was discovered that a grave containing the remains of a local couple, Wally and Gwen Reed had been disturbed, which suggested that an additional interment had been made without lawful authority [3]. In light of anticipated poor weather, it was feared that the remains would dissipate quickly; when the matter was brought to the attention of the Registry, the Chancellor granted an interim faculty on 1 November 2020 for the seemly exhumation of the remains and their safe storage pending determination of the Petition [4]. The exhumation took place on 2 November by the lifting of the remains within the surrounding earth to ensure their integrity; they were stored safely by the undertakers .

These events took place against the tragic background of the relatively recent death of Wally and Gwen’s son Michael, who took his own life in August 2018. His remains were cremated and collected from the undertaker in December 2018 by his widow, Helen. Although there was a memorial service to celebrate Michael’s life, there was no public interment or scattering of his remains. Michael’s siblings are convinced that the remains interred in their parents’ grave are those of their brother Michael. Helen denies any knowledge of this and says that she scattered Michael’s remains in accordance with his wishes on Christmas Eve 2018 at an undisclosed location. Helen has written to the Registry giving details of her understanding of the situation, but has not been willing to take any part in the proceedings [5].

Although there was no objection to the exhumation of the remains, it left the outstanding question of what should happen to the remains once exhumed; having been interred, the condition of the ashes was such that they could no longer be scattered (sic). The  Party Opponent, speaking on behalf of Michael’s siblings, sought the release of the remains into the safe custody of the deceased’s brother, with the intention that they would be safely stored by him until the weather and harvest were such that they could be interred in an area of farmland over-looking Figheldean to which the deceased was very attached (and which he had farmed for forty years) [7]. The Chancellor commented [8]

“Whereas agreed re-interment within the same churchyard would likely have been a proposal acceptable to the Court regardless of the identity of the remains, a prerequisite of the release of the remains to [the deceased’s] siblings would be a finding that the remains are indeed [the deceased]. I would need to be satisfied of that not so that I was sure, but rather on the balance of probabilities”.

The identity of the remains was therefore a necessary precursor to determining the outcome of the petition. After reviewing the relevant facts, the Chancellor stated that these, when coupled with the failure of anyone to claim the ashes in response to the Public Notices and the contemporaneous evidence supporting the fact that the claimed disposal in December 2018 did not, in fact, take place, lead her to conclude that they are Michael’s ashes [17].

With regard to assessing the facts according to the  leading authority on the issue of exhumation, the decision of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299 did indicate that a mistake might well amount to a special reason for the purposes of justifying an exhumation. However, in the instant case,

“[18]. …The interment was undertaken after 5pm on 12 October or early on 13 October 2020, quite possibly under cover of darkness given that no-one seems to have noticed the interment and sunset fell at around 6.30pm that day. The interment was not accompanied by the rites of the Church of England with the words of commendation of the departed to God and committal of the person’s remains to burial in consecrated ground.

Whereas it cannot be said that the interment of the ashes was a mistake in the true sense of that word, it was certainly done without reference to or the consent of either the Incumbent or the family… and therefore illegally.”

“[19]. The family of Wally and Gwen Reed are united in their view that the ashes should be exhumed from the grave. I am quite satisfied that that, coupled with the clandestine nature of the interment, amounts to a special reason justifying the exhumation of the cremated remains from this grave. The illegality should be corrected.”

The Chancellor stated that in this case it is important to determine whether the remains should be released to Michael’s family, as sought by the Party Opponent, Mrs Sims. Had she not been able to find that the ashes concerned were Michael’s remains, she would in all likelihood have imposed a condition upon the Faculty that the remains should be reinterred in a dignified and seemly manner elsewhere in the churchyard. That was the intention when the Petition was issued, given that the ashes were unidentified at that stage.

Having heard the evidence and been satisfied that no-one else has come forward to claim the remains, the Reverend Bromiley was  very happy to support the release of the remains into the safe custody of Michael’s siblings. The Chancellor granted a faculty for exhumation and for custody of the ashes to pass to the surviving siblings for reinterment. [Re St. Michael and All Angels Figheldean [2021] ECC Sal 1] [Top of section] [Top of post]


Churchyards and burials

Churchyard Regulations

Re St. Edmund Kessingland [2020] ECC Nor 4 The petitioners, the rector and churchwardens, removed from the churchyard personal mementoes which had been placed on graves, and which the churchyards regulations did not allow. They then gave notice of removal, where possible advising the families concerned as to where they could collect the relevant items. The petitioners subsequently applied for a faculty for the disposal of the items not collected. There were two objectors, who became parties opponent, around 40 other written objections, and there was an online petition opposing the faculty. The Chancellor decided that the petitioners were entitled to remove the items, as required by the churchyards regulations, and that a faculty was needed for their disposal. The Chancellor therefore confirmed an earlier decision to grant a faculty, subject to there being no objections. [Re St. Edmund Kessingland [2020] ECC Nor 4] [Post][Top of section] [Top of post]

Re St. Andrew Haughton-le-Skerne [2021] ECC Dur 2 In 2018, the Chancellor declined to grant a faculty to the petitioner for a proposed memorial which complied with neither the conditions of the 2010 (general) faculty on the interment of cremated remains in the churchyard, nor with the diocesan Churchyard Rules, Re St. Andrew Haughton-le-Skerne [2018] ECC Dur 2 [1]. However, he indicated  that he would be prepared to consider granting a faculty for a memorial that was in accordance with suggestions made by a DAC sub-committee, even though a memorial based on those suggested revisions would still have been outside the terms of the 2010 Faculty and the Churchyard Rules [2]. By a faculty dated 15th October 2019 the Chancellor gave permission for a memorial in accordance with the revised design, and later that month the memorial was installed; the revised design was for a headstone only, on a base plinth, with no horizontal stone ledger [3].

A year later a horizontal ledger stone, bearing an enamelled photograph, appeared next to the headstone [4]. The incumbent tried without success to find out from the petitioner how the ledger stone had come to be installed [5] to [8], and so referred the matter, via the Registry, to the Chancellor. The Chancellor concluded “the additional memorial ledger, introduced in October 2020 is unauthorised; [i]t is a trespass. The Petitioner has not responded to attempts to contact her, so there is no certainty that it was she who introduced it into the churchyard; however, it seems unlikely to have been anyone else”. He granted a faculty for its removal, subject to conditions. [Re St. Andrew Haughton-le-Skerne [2021] ECC Dur 2] [Top of section] [Top of post].

Trees

Re St. Mary the Virgin Middleton-in-Teesdale [2021] ECC Dur 1 The associate minister and a churchwarden wished to remove from the churchyard two mature blue cedar trees, which were situated within 2 metres of the northern wall of a plant room, adjacent to the vestry[1]. In recent years the trees have been causing problems, dropping a large amount of debris on the roof on the north side of the church, choking gutters and down-pipes, and causing rainwater to cascade down the wall [3]. The quinquennial inspection report had advised removal of the trees due to the rainwater issues and also damage caused by tree roots; there was clear evidence of movement and rotation of the north wall and this was attributable to the effect of the roots of the two cedar trees. The report also noted that the two cedars had a distinct lean towards the church, and debris from them was holding moisture on the roof allowing moss and lichen to grow so as to block gutters and down-pipes. The consulting civil and structural engineers recommended that both cedar trees should be removed so as to safeguard the integrity of the structure of the church in the longer term [4].

The trees are not subject to Tree Preservation Orders, but the churchyard is in a conservation area;  the Durham County Council informed the PCC that it did not object to their removal, but it desired two replacement trees to be planted in the churchyard in their place: an ulmus lobel elm and an ulmus lutece elm, both of 12-14 cm girth. The Council, which maintains the churchyard, will carry out the work, and has agreed to plant the two new trees [5].

The Chancellor stated that the petitioners had made out a convincing case for their removal, and a faculty granted a faculty for the work to be undertaken within 3 months. The impact of losing the two cedars will be mitigated by the planting of the two new trees in the churchyard by Durham County Council. The faculty is to be subject to the condition that the Archdeacon is to be consulted as to where in the churchyard the new trees are to be sited [8]. [Re St. Mary the Virgin Middleton-in-Teesdale [2021] ECC Dur 1] [Top of section] [Top]


Links to other posts

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

Churchyards

General/Miscellaneous


Privy Council Business

At the Privy Council meeting on 13 January 2021, in pursuance of the Orders in Council made on 14th October 2020 and 11th November 2020, representations had 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, was pleased, by and with the advice of Her Privy Council, to order that burials shall be discontinued forthwith at the following churchyards, subject to the listed conditions:

  • St John the Evangelist Churchyard, Dewsbury Moor, Dewsbury, West Yorkshire;
    St Mary Rawtenstall Churchyard, Rossendale, Lancashire;
  • St Mary’s Parish Churchyard, Northolt, London;
    St Mary’s Churchyard, Horsefair Street, Charlton Kings, Cheltenham, Gloucestershire; and
    St Philip’s Churchyard, Kelsall, Cheshire.

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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. This also includes the applications that the commission examined, most recently on Wednesday 9 December 2020 when the following applications were approved, subject to conditions:

  • Cathedral Church of The Holy and Undivided Trinity, Carlisle applied on 8th October 2020 for approval of the following proposal: 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 applied on 6th November 2020 for the approval of the following proposal: Application for a programme of archaeological investigations within the Cloister Garth of Exeter Cathedral, focused on the site of the east cloister walk. These archaeological investigations are key to the development phase of our National Lottery Heritage Fund (NHLF) Project ‘the Vision 2020s – investing in our welcome’ and the ultimate goal to re-instate the east cloister walk.of the CFCE is on Thursday 28 January 2021.

The next meeting of the CFCE is scheduled for Thursday 28 January 2021.

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

Cite this article as: David Pocklington, "Ecclesiastical court judgments – January 2021" in Law & Religion UK, 2 February 2021, https://lawandreligionuk.com/2021/02/02/ecclesiastical-court-judgments-january-2021/