Review of the ecclesiastical court judgments during March 2021 (I)

Eleven consistory court judgments were circulated in March, and the seven featured in this first part of the round-up relate to Reordering, Church Treasures, Telecommunications,  Exhumation and the grant of an Easement over church land. Also reviewed are Visitations, a report of the Independent Reviewer, CFCE Determinations, and Privy Council Business.

The second part reviews four judgments which relate to Churchyards and burials.

Reordering, extensions and other building works

Removal and replacement of pews &c

Re St. Peter & St. Paul West Wittering [2021] ECC Chi 3 The Petitioners sought a faculty for the removal of five noticeboards from the porch; the disposal of some nineteenth century pews, relocation of others with medieval ends; and the shortening of two pews. Several pews had previously been moved to a side chapel pursuant to an Archdeacon’s Licence for temporary minor re-reordering which expired in February. In common with several of the consultees, the Chancellor found it far from easy to identify the individual pews, to be moved or shortened or disposed of [1]. “The removal of the noticeboards will make the porch more welcoming, with free-standing modern notice boards to be placed at the west end of the church. Removing the pews has created an area at the rear of church where (but for the pandemic) the congregation can meet after the service to socialise. The experimental use of this space during the currency of the Archdeacon’s Licence has been favourably received” [3].

The CBC has indicated that it has no objection to the proposals, as has Historic England. The Victorian Society stated that it was content to defer to the DAC. There was no response from SPAB, and on 20 April 2020, the DAC issued a Notification of Advice, recommending the proposed works subject to certain conditions [4] and [5].

The issue for determination was whether a temporary reordering should now be made permanent [6]. Applying the guidance of the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158, and noting the burden which lies on the proponents of change, the Chancellor considered that there will be a degree of harm to the significance of this church as a building of special architectural or historic interest, but it will not be particularly significant. The justification is cogent, as the consultees seem to agree, and the public benefit from the works will undoubtedly outweigh the harm [7]. He accordingly granted a faculty. [Re St. Peter & St. Paul West Wittering [2021] ECC Chi 3] [Top of section] [Top of post]

Re St. Philip Norton [2021] ECC B&W 1 The proposal was to replace the main block of nave pews with chairs. The petitioners wished to create a more flexible space for church and community use. The pews were part of a refurbishment by the architect George Gilbert Scott in the mid-nineteenth century.  The Victorian Society and Historic England submitted written objections to removal of the pews. Bearing in mind that access to “The Hub” (which was installed under faculty in 2004, to provide a servery, a lavatory, a vestry and a meeting room in the north-west corner of the church) was difficult, and moving The Hub was not viable, the Chancellor considered that the removal of the pews appeared to be a realistic way of freeing up space, in order to promote worship and mission; and the harm to the church by the loss of the pews would be outweighed by the benefits. He accordingly granted a faculty. [Re St. Philip Norton [2021] ECC B&W 1] [Top of section] [Top of post]

Church Treasures/Sale of Paintings etc/Loans

Re St. Cuthbert Thetford [2021] ECC Nor 1 The Parochial Church Council and Churchwarden sought permission to sell some items of Georgian silver, some of which were stored in Norwich Museum and some in Norwich Cathedral Treasury. The church had inherited the items in the 1970s from two nearby churches, which had been closed. The items in question are a George III sterling silver communion set comprising two pattens, two communion cups and a flagon together valued at £1500-£2500 (London, 1791 by Andrew Fogelberg and Stephen Gilbert); a George III sterling silver flagon valued at £600-£800 (London 1778 by Charles Wright); the inscribed alms dish, being George III sterling silver and valued at £500-£800 (London 1785 by Edward Fernell) and a George II sterling silver communion cup and cover valued at £400-£600 (London 1755, maker unknown) [16]. The disposal is proposed to be by open sale for the highest price obtainable. The PCC wished to use the proceeds of sale towards the cost of a new lighting scheme for the church, which would cost over £8000.

The Diocesan Advisory Committee (DAC) recommends the proposal to me without reservation [18], and present Lord Petre, a descendant of the family of one of one of the donors, does not have any objection to a proposed sale. The situation with the items donated by James Mingay in 1786 is different; email contact has been made by Robert Mingay although his replies to the were sporadic and in one he asked if he could purchase the silver [20]. The Chancellor considered the various aspects of the case [24 (a) to (j)] and addressed them in turn [25] to [34].

He refused to grant a faculty since he considered that the petitioners had not established a good reason for the sale. The silver had significance for Thetford and the petitioners had not shown any pressing financial emergency: “I am concerned that it is a case of wanting to use the financial worth of this silver for ‘something’, rather than any compelling financial need that demands the sacrifice of a church treasure.”

He additionally made the following general observations.

“[37]. When a suggestion is made that a particular church takes treasure from another in circumstances where the donating church is closing, it should be made clear to the receiving church that if they agree to do this then they become the custodian of that treasure and there will be significant limitations on their ability to dispose of it should they wish to do so in the future. They should read carefully the CBC’s current guidance on the topic and any additional or revised guidance published after the date of this decision.”

[Re St. Cuthbert Thetford [2021] ECC Nor 1] [Top of post].

Telecommunications

Re St. Peter ad Vincula Hampton Lucy [2021] ECC Cov 3 The petitioner, a churchwarden, sought a confirmatory faculty for  the installation on the church tower of radio internet repeater equipment to provide internet access within the Church without the need for the installation of a telephone line. The installation was carried out in or about 2016 by a local electrician at the behest of the former incumbent, with additional installation in the tower following in 2017. No formal permission was sought for the installation, albeit the installation of each set of equipment was approved by the PCC [1].

A neighbour had initially been concerned about the impact of the equipment on the health of himself and his family and he also raised concerns about safe access for maintenance of the equipment. The Chancellor noted “I regret to say that the response of the Parish to Mr Robinson’s queries has been inadequate… It seemed to me without doubt that the Parish that had installed equipment should make efforts to reassure those nearby who raised concern that the equipment would not (or was very unlikely to) impact upon their health, safety and comfort [3, 5]. In granting the faculty, the Chancellor stated:

“[6]. In all the circumstances of this matter I am satisfied that the fears raised by Mr Robinson in his letter of objection have now been, to at least a substantial degree, assuaged, albeit Mr Robinson was required to carry out the necessary calculations himself. I have already indicated that the impact of the installed equipment upon the historical significance of this listed Church building will be negligible. I find that the reason for the installation is good and perhaps even necessary in the current circumstances faced by Churches in this Country as a whole”.

[Re St. Peter ad Vincula Hampton Lucy [2021] ECC Cov 3] [Top of section] [Top of post]

Exhumation

• Family graves
• Other

Family graves 

Re St. Andrew Leyland [2021] ECC Bla 1 The petitioner wished to have the cremated remains of her husband exhumed from the churchyard at Leyland and reinterred in a family grave in the churchyard at Wrea Green containing four members of the family, which had been her husband’s wish. But at the time of her husband’s death, the petitioner, who had suffered from leukaemia for some time and was now in hospital, had had her husband’s remains interred at Leyland, whilst she was ‘was in shock (he died suddenly) and therefore did not act rationally or upon his wishes’. She wished her cremated remains in due course to be buried in the family grave together with the cremated remains of her husband. The Chancellor considered that this was a case where there were exceptional circumstances to justify granting a faculty. Firstly, the reinterment would be into an existing family grave and, secondly, had been a mistake by the petitioner in her shock and grief, in that her husband had expressed a wish to be buried in the family grave at Wrea Green, and she now wished for corrective action to be taken. [Re St. Andrew Leyland [2021] ECC Bla 1][Top of section] [Top of post]

Other

Re St. Mary East Leake [2021] ECC S&N 1 The ashes of the deceased, who died in 1980, were interred in a municipal cemetery in Loughborough and in 1985 were exhumed for burial in East Leake Churchyard [1]. The Petitioner, his son sought a second exhumation, proposing that his father’s ashes be reburied in a consecrated part of the East Leake Cemetery together with those of his mother, who has now also died. The Petition is supported by Thomas Maddison’s two surviving sisters (the Petitioner’s aunts) [2].

The Chancellor made reference to the Court’s judgment Re Bingham Cemetery [2018] ECC S&N 1 regarding the permanence of Christian burial [4]. Whilst the Petitioner’s assertion of ‘disrespectful behaviour’ near the grave [10], nor the Petitioner’s disability [11] were persuasive, but:

“[12]. [w] hat does stand out [is[ the physical situation of the grave itself….The grave is by itself, away from the area generally used for cremated remains. No other recent graves with memorials are visible near it in the photographs. It is now well under the canopy of a spreading cypress tree, leaving a headroom of something less than one metre for access. The ground around it is, unlike the rest of the churchyard, not mown: it is undergrowth, not grassy, and cannot be reached properly for tidying or maintenance. The seat is not in front of the grave, but its position nearby increases the sense that the grave is in a wholly unsuitable place, and further restricts access.”

[13] No doubt in 1985 the tree was much smaller, and the seat perhaps was not there. The position now is that the grave is barely accessible, is likely to be affected by the roots of the tree, and can be seen as isolated from the arrangements made for burial in the rest of the churchyard for no apparent (or good) reason.

[14]. These exceptional factors justify the grant of the Petition in this case. There will be a Faculty for the exhumation of the remains of Thomas Swan

Faculty granted subject to conditions. [Re St. Mary East Leake [2021] ECC S&N 1] [top of section] [Top of post]

Easement

Re St. Andrew Great Durnford [2021] ECC Sal 3 The Incumbent and Churchwarden sought a faculty permitting the grant of an easement over a church-owned lane in favour of an adjacent property known as ‘The Bothy’ [1]. The PCC voted unanimously to support the proposal which proposed the grant of an easement for limited purposes over a church-owned lane for the benefit of an adjoining property belonging to the Great Durnford Estate and used for the storage of garden machinery. Although there was no suggestion that the land over which the lane runs is consecrated, it nevertheless clearly falls within the curtilage of the church and therefore is subject to the faculty jurisdiction of the Court, (section 57  Ecclesiastical Jurisdiction and Care of Churches Measure 2018). The authority of a faculty from the Court is needed before a right of way can be granted over it [4].

The DAC recommended the grant of a faculty, but the owner of another property fronting the lane objected [5]. The Chancellor was quite satisfied that the terms of this easement are appropriate and suitably enforceable: “[t]here will always be scope for amendment to preferred versions of the proposed terms, but I am satisfied that what has been agreed between the Petitioners and the Estate reflects
a fair and appropriate arrangement in the circumstances” [11]. The Chancellor directed that direct that a faculty shall pass the seal on condition that the deed is executed with six months of the date of this faculty [13]. [Re St. Andrew Great Durnford [2021] ECC Sal 3] [Top of post]

Privy Council Business

There was no Church business at the meeting of the Privy Council on 10 March 2021.

Reports from the Independent Reviewer

Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.

• House of Bishops’ Declaration on the Ministry of Bishops and Priests Lullington with Orchardleigh: Report of the Independent Reviewer, (30 November 2020), (64pp), relating to the grievance submitted on behalf of the Parochial Church Council of the Parish of Lullington with Orchardleigh, 3 November 2020, (271pp).
• House of Bishops’ Declaration on the Ministry of Bishops and Priests. St Barnabas Southampton: Report of the Independent Reviewer, 25 February 2021, (16pp).

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 Thursday 25 March 2021. A report of the findings will be posted in our next monthly summary of ecclesiastical court judgments. The next meeting of the CFCE is on Thursday 27 May 2021.

Visitations

• Sheffield Cathedral: Bishop Of Sheffield Publishes ‘Determination’ Following Sheffield Cathedral Visitation, 19 March 2021, and…
• A Determination by the Bishop of Sheffield in the light of the Report of the Commissaries following a Visitation at Sheffield Cathedral, 1st November 2020 to 28th February 2021. 19 March 2021.

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