Review of the ecclesiastical court judgments during March 2021 (II)
Eleven consistory court judgments were circulated in March, and the four featured in this second part of the round-up all relate to Churchyards and burials. The first part reviewed the earlier seven judgments which related 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.
Re All Saints Dilhorne  ECC Lic 1 The petitioner wished to erect on the grave of his late wife a red granite memorial with a polished face and gold lettering . The priest-in-charge at the time of the application declined to approve the memorial on the grounds that gold lettering was not permissible and that the size and colour of the memorial would not be in keeping with the other memorials in the churchyard .
The parish is now in interregnum and the Parochial Church Council has chosen neither to become a party nor to make any representations ; the Diocesan Advisory Committee has recommended approval of the petition noting the presence in the churchyard of other memorials made of red granite and bearing gold lettering . The Chancellor noted that it was important that the court takes account of the realities of the situation in any given churchyard. In St James, Newchapel (2012) I quoted, at , the assessment made by Mynors Ch in Re St Mary: Kingswinford  1 WLR 927 at  of the circumstances in which a faculty could be given for a memorial outside the scope of diocesan Churchyard Regulations. He then, at , set out his assessment of the approach to be taken where a churchyard contains a large number of memorials outside the scope of the Regulations; this approach formed the basis of the instant judgment.
The Chancellor determined that it would be unreasonable to refuse a faculty for the memorial, as the use of gold lettering was widespread in the churchyard; also, there was a large number of polished granite stones which, though mostly black, did include a number of red granite stones, including a red granite stone on the grave next to the grave of the petitioner’s wife. In his assessment the former vicar’s view as to the potential effect of the proposed memorial was mistaken. [Re All Saints Dilhorne  ECC Lic 1] [Top of section] [Top of post]
Re St. Chad Far Headingley  ECC Lee 3 The petitioner wished to erect in the churchyard a memorial to her two children, who had died, aged 6 and 9, from Batten disease. When the first child had died, a memorial which was outside the churchyards regulations had been installed without permission.
This was placed in the churchyard without permission being obtained from the incumbent. Its polished gloss surface is such that the incumbent would not have had delegated authority to allow it. There was a delay in preparing this judgment while the facts were investigated. Mr David Calder, of G H Dovener & Sons, Funeral Directors, ignored both the Court’s order requesting information, and several reminders. He only replied when an “unless order” threatened him with costs and other consequences.
“. It would appear from the information Mr Calder has now disclosed that the original memorial was erected by a firm of stonemasons, Mark Clarke and Son, acting under the direction of an employee of Mr Calder’s firm, who has since left his employment. There is no explanation as to why Mr Calder’s firm instructed the work to proceed without permission, nor why the stonemasons failed to ensure that written authority was in place. Due to the delay the Court has not made independent enquiries of Mark Clarke & Son.
. Mr Calder has offered the Court assurances that there will be no repetition and says he has issued reminders to his staff regarding the contents of the Churchyard Regulations, their importance, and the serious consequences that can result if memorials are introduced into churchyards without permission. I hope a line can now be drawn under the matter.
Following the death of the second child, the petitioner sought approval of a new memorial design, with an image of Winnie-the-Pooh at the top and the inscription including phrases from other children’s literature – “To infinity and beyond” and “We love you to the moon and back”. The Chancellor was put in mind of a saying of Jesus, recorded in the Gospel of St Matthew, ch 18 v 3:
And he said: “Truly I tell you, unless you change and become like little children, you will never enter the kingdom of heaven.”
The Chancellor granted a faculty. He considered that the petitioner had made out a compelling case and that there were exceptional pastoral reasons for approving the design, to give comfort and solace to the petitioner and her family. [Re St. Chad Far Headingley  ECC Lee 3] [Top of section] [Top of post]
Re St. Alban Frant  ECC Chi 4 In this is private petition, the petitioner sought to mark the grave of his late wife, Stella, with a cast iron memorial, which fell outwith the Diocesan Churchyard Regulations; the memorial included, as part of the design, a cluster of five-pointed stars. The PCC was opposed to this type of memorial on the basis that it would not be in keeping with the stone memorials in the churchyard and it would set a precedent. However, the DAC and the CBC had no objections to the design, and the Registry received no objections following public notice.
The Chancellor, the Worshipful Mark Hill QC, noted “the emerging divergence in practice between diocesan chancellors regarding the status which they afford to their churchyard regulations. As a matter of law, they are no more than instruments of delegation. Their purpose is to prescribe certain categories of memorial which may be introduced into churchyards with the written authority of the incumbent, thereby obviating the need to seek a faculty: See Re St. John the Baptist Adel and St. Michael Markington  ECC Lee 8. He said:
“. I respectfully differ with the approach of those chancellors who afford enhanced normativity to the types of memorial covered by their churchyard regulations, and who therefore require petitioners to demonstrate, for example, a “good and substantial reason” (per Tattersall Ch in Re Saviour Ringley, Stoneclough  ECC Man 3) or some higher test of exceptionality before granting a faculty for one to be introduced.
. I gratefully adopt the reasoning of Bullimore Ch in Re St Mary the Virgin Eccleston  ECC Bla 4. The position in this diocese was summarised in Re St Mary Magdalene, Lyminster  ECC Chi 1 at paragraph 13:
. The Churchyard Regulations for the Diocese of Chichester include the following: “Attractive, well-conceived designs by skilled and imaginative craftsmen should be encouraged”. The notes at the foot of the Regulations (which are in bold type) emphasise that a faculty may be sought for the erection of a memorial which does not come within them, adding that “Such
petitions are actively encouraged”. For an example of such a petition, see Re St Mary, Bepton (2013), Chichester Const Ct, Hill Ch.
The “measured and reasoned” petitioner’ case is set out in paragraphs  to , that of the PCC in  to , the CBC in  and the DAC in . In assessing whether the petitioner had made his case for the introduction of the proposed memorial, the Chancellor concluded that he has for each and all of the following reasons listed in [14, (i) to (ix)]. He considered that the memorial would be fitting and appropriate; there was a tradition of cast iron headstones in the area, though not in this particular churchyard. The Chancellor granted a faculty, subject to a condition that the stars should not be pierced through the memorial, but that the stars and the lettering should be raised. This was for health and safety reasons, lest children might injure themselves on the sharp points of pierced stars. [Re St. Alban Frant  ECC Chi 4] Top of section] [Top of post]
The Chancellor noted that the “private petition seeking a faculty for the reservation of a grave space…[was] slightly unusual due to the lack of an obvious nexus between the petitioner and the churchyard where she wishes, in due course, to be buried” . With regard to the public and private activities of the Church of England, the Chancellor noted “[t]he seminal decision of the House of Lords in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546″ , and for the purposes of the instant case,
. …it is sufficient to recognise (i) the right to be married in the parish church, and (ii) the right to be buried in the churchyard, if there be room. These rights, though highly personal to the individuals concerned, have a public element to them. Whilst there are some similarities between the right of marriage and that of burial, there are some significant differences…
. As to burial, the right similarly attaches to those resident in parishes and those on the electoral roll. It also includes those dying in the parish. However, it does not extend to those with a qualifying connection: this feature applies solely in relation to marriage. However, unlike marriage, there is a discretion which vests in parish clergy who can consent to the burial of whosoever they choose in the churchyard of their benefice, although only the Chancellor may authorise the reservation of a grave space.
/ A faculty may be granted for the reservation of a particular grave space for a parishioner or non-parishioner, the matter being entirely within the discretion of the consistory court. Due weight will be given to any PCC policy and to the consent or otherwise of the incumbent. If granted, a faculty will prevent the incumbent from conducting a future burial in the plot to which it relates.
. The Court will be more disposed to grant a faculty in respect of a person with a right to be buried in the churchyard, as opposed to one without such an entitlement. The Court will have to be satisfied that there is sufficient space in the churchyard so that those with a right to burial are not prejudiced.
The Chancellor referred to his earlier decision in Re St Oswald, Methley with Mickletown  ECC Lee 2, in which he formulated certain principles which were largely derived from the judgment of Newsom Ch in Re West Pennard Churchyard  4 All ER 125. These were repeated with minor revisions, and incorporating changes to the statutory provisions occasioned by a recent consolidating Measure:
“[i]. At common law, every parishioner has a right of burial in the churchyard of the parish unless it is closed by due legal process;
[ii]. The common law right extends also to all persons dying in the parish, whether or not they are parishioners;
[iii]. By statute, a similar right is enjoyed by all persons whose names are on the electoral roll of the parish: see section 86(1) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018;1
[iv]. A person who does not have the right of burial in the churchyard, may not be buried there without the consent of the parish priest: 86(4) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.
[v]. The parish priest has power at common law to prescribe where in the churchyard any burial is to take place: but that is the extent of their discretion in respect of cases where the deceased had a legal right of burial;
[vi]. As freehold owner of the churchyard, the parish priest may grant consent to the burial of the remains of a person who has no legal right of burial. In doing so, they should consider the space available in the churchyard and the extent to which those with rights of burial may be prejudiced.
vii. In deciding whether to give consent, the parish priest is also required to “have regard to any general guidance given by the parochial church council of the parish with respect to the matter”: see section 86(2) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018;
[viii]. These common law and statutory rights crystallise only when the person in question dies.
The Chancellor stated: “[t]he facts of the case can be shortly stated. The petitioner (who is not to be identified) is some 44 years of age. Her home is in Oxfordshire. She states in her petition that she is part of a local Anglican parish and is ‘a committed and confirmed Christian’. She wishes to be buried in consecrated ground. She describes visiting a family member in Huddersfield and becoming intrigued by Brontë country. She comments that Villette by Charlotte Brontë has long been her favourite novel” .
The priest-in-charge and Parochial Church Council had no objections to the reservation. There were in excess of 450 grave spaces available, and burials averaged five per year. After a discussion of the principles which a Chancellor should consider when deciding whether to exercise a discretion to grant a faculty to someone who had no legal right to be buried in a churchyard, the Chancellor determined that in this case there was no reason to refuse a faculty. [Re St. Thomas à Becket & St. Thomas the Apostle Heptonstall  ECC Lee 2] [Top of section] [Top of post]
Parochial Church Council of Holy Cross Church, NG20 9RE (30 March 2021). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 from the Parochial Church Council of Holy Cross Church; Application number: EPR/TB3298EU/A001; Grid reference SK 51860 69336. This is for the discharge of 0.46 cubic metres per day to groundwater at Location via a trench arch system.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.