Ecclesiastical court judgments – June (I)

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

Eleven consistory court judgments were circulated in June, and the six featured inConsistory Court this first part of the round-up all relate to Reordering, extensions & other building works and exhumation. The second part reviews the remaining five judgments which concern Churchyards and burialsOrgansCDM Decisions and Safeguarding, Privy Council Business,  and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.


Reordering, extensions and other building works

 

Substantial reordering

Re St. James in the City Toxteth [2021] ECC Liv 1 The church had fallen into a state of dereliction in the 1970s and had to be closed. However in 2010 a trust was set up to improve the church and grow its congregation. By 2018 there was an average Sunday attendance of 150, but due to the state of the building and lack of heating, a major scheme of reordering was proposed. This included heating and lighting, toilet and kitchen facilities and the creation of more floor space by the introduction of an upper floor at the west end.

The petition was not formally opposed; the amenity societies were afforded an opportunity to become parties opponent but chose not to. Consequently, a hearing was unnecessary, and the Chancellor dealt with the matter on the basis of the written submissions, which included communications from the Georgian Group (the principal objector) the Church Buildings Council, (CBC), the Victorian Society, Historic England, and the Ancient Monuments Society. The petitioners, mainly through the project architect, provided responses to the objections raised [7]. Since time was pressing for the completion of contractual formalities, he subsequently indicated through the Online Faculty System that the faculty would be granted [8].

After reviewing the architectural and historical significance of St James in the City [9] to [16], the Worshipful Graham Wood QC addressed the need for the reordering. He commented:

“[17]. It would be somewhat trite to observe that a thriving congregation could not continue to meet in a semi derelict building, inside a marquee with portable heating for any significant length of time.

[19]. It would appear that the absence of space heating is a primary driver for the changes, on the basis that there would be little point in structural re-ordering if the numerous groups which met within the building had no appropriate heating, and were always dependent on portable heaters. This would make little sense economically or environmentally. Further, beyond the main nave area where the tent is erected, there is said to be little space for ancillary activities.”

The “extensive and detailed” statement of need was prepared on the petitioners’ behalf by  the architects and project managers [18]. Although the judgment refers to the installation of “eco-friendly heating and lighting systems”, no further details are given. This was, however, only shortly after the Synod motion was agreed, and before guidance on “net zero” was issued.

The petitioners identified four areas of need which cannot be achieved within the current building, which was described as “not fit for purpose”: The Chancellor noted “[c]learly the key is maximising space for multiple activities [20]. After considering the nature of the proposed works, he addressed the nature of the comments / objections from consultees [26] to [30]. The Chancellor granted a faculty, being satisfied that there was a compelling case for the improvements, which would support a now thriving congregation. [Re St. James in the City Toxteth [2021] ECC Liv 1] [Top of section] [Top]

Other building works, including re-roofing

Re Holy Trinity Hull [2021] ECC Yor 3 The petitioners,  the P-i-C and churchwardens sought a faculty to introduce altar frontals to the chancel communion table in Holy Trinity Church Hull, also known as Hull Minster. The said frontals are to be in liturgical colours [1]. The matter was put before the DAC for its advice and was dealt with by the Secretary to the DAC under the Committee’s Delegated Authority Policy. The advice was that the proposal was ‘recommended’ [3]. Two letters of objection were received [13] and [14]. One objector questioned the appropriateness of such adornment, when funds might be better spent on outreach. The other objector considered it wrong to cover up the beautifully carved Victorian altar table.  The Petitioners noted: “[the introduction of frontals would be one way of visually signalling that the building is very much still in use as a place of Christian worship and would also signal the passage of the church’s year as the changing colours of liturgical time mark the great mysteries of the Christian faith” [15]. However, they acknowledged:

“[16]. the fact that the congregation, most of whom have joined in the last few years, are either completely new to church or come from other diverse church backgrounds. The choral tradition in the church has undergone a renaissance in the last few years and has drawn to the church many who are
used to a more liturgical style of worship and to one which would usually be found in buildings of this scale and grandeur.

[17]. They also note that the Rev Canon Dr Neal Barnes, the last incumbent before this petitioner-incumbent, introduced candles and coloured stoles into the worship of this church for the first time since the Reformation. That lighting of candles has become very important to hundreds of people who have come into the church when it has been open for personal prayer during the pandemic

[18]. It is accepted by the petitioners that the long-standing Low Church tradition which is represented in the remnants of the old congregation must be respected and that has resulted in restraint in the ceremonial that has been introduced..”

The Chancellor noted that the tests he must apply is whether the petitioners have made out the case for their proposal will result in harm to the significance of the church as a building of special architectural or historic interest:

“[20]. That is not suggested here. The nearest we come is the suggestion that this fine Victorian table will be visible less often than it is now. It is not being removed and on significant heritage days it is proposed to reveal it in all its Victorian glory. I am therefore not able to categorise this as significant harm or a significant loss.

[21]. That being the case although there is a presumption against change, that presumption is rebutted more or less readily, depending on the particular nature of the proposals (see Peek v Trower (1881) 7 PD 21, 26-8, and the review of the case-law by Chancellor Bursell QC in In re St Mary’s, White Waltham (No 2) [2010] PTSR 1689 at para 11).

[22]. The argument here is that there has in recent years been a development in the style of worship which has introduced the liturgical year and its colours through the wearing of stoles and a natural extension of that would be to show those colours in another place namely the front of the communion table as is the pattern in many churches. Further it is said that many new members of the congregation feel quite comfortable with this, not having the Low Church background of some of the longer standing members of the congregation. Thirdly the church is working on how it can interpret the building to the many unchurched visitors and how through interpreting the building it can explain the message of the Christian gospel, and that by focussing on the liturgical calendar and using colour they can say something about the part of the gospel message the church is contemplating at that time of the year.”

After considering the objections raised [26], [27], Chancellor Collier granted a faculty, concluding:

“28. So in all these circumstances I am satisfied that the petitioners have put forward a cogent argument for introducing this change to the furnishing of Holy Trinity church and that the objections raised…whether taken separately or even added together amount to good reason why the change should not be permitted.”

[Re Holy Trinity Hull [2021] ECC Yor 3] [Top of section] [Top of post]

Removal and replacement of pews

Re St. Paul Covent Garden [2021] ECC Lon 2 The petitioners sought to replace the fixed pews and replace them with new movable and stackable seating; the colour of the new seating would match that of the existing surrounding woodwork; and the best examples of the current pews would be retained and removed to the gallery. Also, some red chairs that were introduced in the 1980s which the Chancellor stated “have never had any aesthetic value would be removed – this part of the petition “succeeds without further consideration”[1]. The cost of the works as a whole was estimated to be around £240,000 and the petitioners indicated that the church has sufficient funds for the works from its own funds together with gifts and legacies [3].

Historic England and the Victorian Society submitted objections, but did not become parties opponent. The Chancellor stated:

“All Objectors with a sufficient interest will always have their views taken into account in all cases if they wish to maintain their objections but do not wish to oppose a petition formally. The degree to which their objections will affect the court’s decision is dependent only on the merit of the objections. HE and VS clearly have a sufficient interest” [4].

He considered the Statement of Significance,[6] to [16], and observed:

“[8] Major works were carried out in 1788 and 1789 but in 1795 plumbers, who were engaged in carrying out what would nowadays probably be regarded as ‘List B’ works, left a fire unguarded and a huge conflagration gutted the church. It was rebuilt in 1795 to 1796 by Thomas Hardwick…The Butterfield works were carried out by episcopal faculty between 1871-2.”

Although press reports of the period were favourable to some aspects, particularly the provision of seating for children, but Butterfield’s conversion of the old pews was more controversial. “It is impossible to predict what today’s Consistory Court would have made of the 1871 faculty process but I can imagine there would have been objection.”

The petitioners explained the rationale for the changes: the present pews are in a very poor state of repair; various services and occasions would benefit from having flexible seating; wishes to develop links with museums (such as the Victoria and Albert) who are interested in exhibitions from their theatre galleries being loaned to the church; hosting community events; development of an income stream.

After considering the state of the pews [21] to [28], and the responses of the Amenity Societies, [29] to [37], the Chancellor considered that any harm to the architectural interest of the church would be low and the harm to the historical interest would be moderate. He found that the petitioners had made a convincing case for the proposals. The church would benefit from the introduction of moveable pew benches, which would provide improved seating and allow greater use of the church for services, events, concerts and commercial hiring. [Re St. Paul Covent Garden [2021] ECC Lon 2] [Top of section] [Top of post]


Exhumation

Family graves 

Re St. Saviour’s Cemetery Hungerford [2021] ECC Oxf 3 The petitioner’s mother had died in 2004, and her cremated remains had been buried in the grave of the petitioner’s sister, who had died in 2001. The husband of the petitioner’s sister died after a very short illness in 2021. The petitioner wished to have her mother’s ashes exhumed, so that her sister’s husband’s remains could be buried with the remains of his wife. The petitioner also wished to move her mother’s ashes to a plot  8-10 metres away, where the remains of the petitioner’s father could in due time be interred. The Chancellor determined that there were sufficient  exceptional circumstances to justify the grant of a faculty. [Re St. Saviour’s Cemetery Hungerford [2021] ECC Oxf 3] [Top of section] [Top of post]

Re St. St. Mary Beenham Valence [2021] ECC Oxf 4

The petitioner sought permission to exhume the cremated remains of her late mother from a grave plot in the churchyard of St Mary, Beenham Valence to enable the last remains of the deceased’s husband (and the petitioner’s father), to be laid to rest in the grave plot, with the deceased’s cremated remains being placed in his coffin so that the married couple can at last be reunited in death and be able to rest in peace together [1[. The church records do not identify precisely where in the grave the cremated remains are located or the type of container they are held in; and the family are equally unsure. However, the funeral directors have undertaken to look after the exhumation of the deceased’s cremated remains, liaising with the church about opening up the grave, and they will place the cremated remains into a larger wooden casket and bring it back to the office for placing in Mr Watt’s coffin [3].

The court granted a faculty for the exhumation of the cremated remains of the late Mrs Watt from their existing grave in the churchyard of St Mary, Beenham Valence, in order to facilitate the interment of Mr Watt’s remains, and their re-interment in that grave within Mr Watt’s coffin to the extent that this is practicable [9]. [Re St. St. Mary Beenham Valence [2021] ECC Oxf 4] [Top of section] [Top of post].

Errors in burial

Re Lambeth Cemetery Tooting [2021] ECC Swk 3 The petitioner’s late father, a Muslim, had been buried in a grave in part of the cemetery consecrated for burials according to the rites of the Church of England. Lambeth Cemetery, originally opened in 1854 is now owned and operated by the London Borough of Lambeth. Somewhat inexplicably, in 1998 it had set aside an area of land for burials of remains for those of the Muslim faith; however, this area was of land which had been consecrated by the Church of England, with all that entails. The essence of the case is summarized below:

“[4]. Although all are welcome to organise burials within consecrated ground, it is land specifically intended for Christian burial. Christian burial is intended to be permanent and permission for exhumation is granted only exceptionally. If the remains of someone who is not a Christian are buried in consecrated ground, it is on the basis of accepting the requirement that permission for exhumation is granted only exceptionally, even though the person whose remains are buried may not have shared the beliefs that form the basis of that rule. But obviously if it is to apply, those making funeral arrangements must be aware of it.”

Furthermore, there was a constraint on burial within the larger area of the cemetery within which Plot 214 A CONS sat; on account of ground conditions, it could only be used for single burials [7]. However, in the course of time, two new areas were identified for the burial of the remains of those of the Muslim faith; these were not consecrated and permit of double burials [8].

It was unclear whether these constraints had been pointed out to the family at the time of death – none of the cemetery staff were in post when the father was buried. The petitioner’s mother, who had recently died, had been buried in an unconsecrated part of the cemetery, and the petitioner stated that it had been the wish of his parents to be buried together. It had not been possible to bury the petitioner’s mother in the same grave as her husband (even disregarding the fact that the grave was consecrated. The Chancellor decided that there were exceptional circumstances to justify the grant of a faculty to enable exhumation of the petitioner’s father’s remains, for re-interment in the unconsecrated grave where his mother was buried. [Re Lambeth Cemetery Tooting [2021] ECC Swk 3] [Top of section] [Top of post]


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

Note also that the neutral citation for Re Mitcham Road Cemetery Croydon has been changed to [2021] ECC Swk 2. Our posts referring to this judgment have been changed accordingly.

Cite this article as: David Pocklington, "Ecclesiastical court judgments – June (I)" in Law & Religion UK, 30 June 2021, https://lawandreligionuk.com/2021/06/30/ecclesiastical-court-judgments-june-i/

 

 

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