Review of the ecclesiastical court judgments during June 2021 (II)
Eleven consistory court judgments were circulated in June, and the six featured in the first part of the round-up all relate to Reordering, extensions & other building works and exhumation. This second part reviews the remaining five judgments which concern Churchyards and burials, Organs, CDM Decisions and Safeguarding, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Note 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.
- Development of churchyard
- Designation of closed churchyard
- Churchyard Regulations
- Reservation of grave space
Re Scotforth Cemetery Lancaster [2021] ECC Bla 3 Lancaster City Council applied for a faculty to permit the removal of the boundary hedge of the cemetery and the use of a 1.8m strip of the consecrated area of the cemetery to create a public footpath next to the immediately adjoining highway. The Chancellor granted a faculty, subject to a new hedge being planted on the cemetery side of the proposed footpath. There were no human remains or memorials within the strip of land, and the proposal would improve the safety of users of the public highway. [Re Scotforth Cemetery Lancaster [2021] ECC Bla 3] [Top of section] [Top of post]
Re St. Mary the Virgin Ashbury [2021] ECC Oxf 5 The petitioners sought permission to install a new bench made from metal and recycled plastic in the consecrated churchyard of this Grade I listed medieval church, situated within the Ashbury Conservation Area in the Archdeaconry of Dorchester [1]. The PCC initially resolved to install a metal and wooden bench in the churchyard, but later decided that they would prefer to install a bench made from recycled materials, which proposal forms the basis of the present faculty application [2]. The DAC acknowledged that the proposal is not likely to affect the character of the church as a building of special architectural or historic interest, but did not recommend the proposal as it was considered out of character for an historic village churchyard [5]. The present application had originally come before the DAC as a List B application but the archdeacon had rejected the application because of the design of, and the materials proposed for, the bench [6].
The Chancellor granted a faculty. He did not think it appropriate or necessary to overrule the choice of the PCC on grounds of aesthetics. However, he imposed a condition that the PCC should reconsider the design and materials of the bench. If they decided on an alternative, then the alternative would be allowed, subject to prior approval by the DAC. Otherwise, the design accompanying the petition was approved [15]. [Re St. Mary the Virgin Ashbury [2021] ECC Oxf 5] [Top of section] [Top of post]
Designation of closed churchyard
See Privy Council Business meeting of 23 June 2021.
Re St. Giles Exhall [2021] EACC 1 A separate post has been published on this importance case, here. The summary from the Ecclesiastical Law Association is reproduced below:
“This was an appeal against a decision of the Chancellor of the Diocese of Coventry (in Re St. Giles Exhall [2020] ECC Cov 1), who granted a faculty for a memorial which included a short inscription in Gaelic, but subject to a condition that there should be an English translation beneath the Gaelic inscription, to which the petitioner and her family objected. The Court of Arches heard the appeal on 24 February 2021 and announced the same day its decision to allow the appeal, reserving its reasons to a written judgment, which was delivered on 16 June 2021.” [Re St. Giles Exhall [2021] EACC 1 (with reasons)] [Post] [Top of section] [Top of post]
Re St. John Eltham [2021] ECC Swk 4 Eltham churchyard was closed by Order in Council, and although no separate area has ever been set apart for the interment of cremated remains, there has been some limited interment of cremated remains, in appropriate available spaces between graves. The cremated remains of the petitioner’s father had been interred near the west end of the church in 1961 and the interment was marked by a memorial stone measuring 18 inches by 12 inches [3]. In 1989, the then incumbent agreed with the petitioner and her mother, that their ashes could in due time be interred next to the ashes of the petitioner’s father, though there was only room for one more commemoration on the memorial. The petitioner’s mother died in 2020 and her cremated remains were interred under her husband’s memorial stone.
The petitioner sought a faculty: i] to secure the arrangement agreed with the incumbent in 1989, so that her own cremated remains could in due time be buried next to those of her parents, ii] to permit a further stone next to the memorial to her parents; and iii] to replace the existing stone, which had weathered badly. The church was in interregnum, but the PCC and Area Dean both approved these arrangements [7]. There is no objection in law to the interment of ashes in a closed churchyard (paragraph 11 of Part 9 of Legal Opinions concerning the Church of England), and a parishioner has a right to be buried in the churchyard of his or her parish. However, such a right only crystallises when the person in question dies (strictly speaking, it is a right which accrues to his or her estate) (In re West Pennard Churchyard [1992] 1 WLR 32 (Bath & Well Cons Ct)). [8] and [9]. It is a practice of long standing that both parishioners and non-parishioners may apply for a faculty to reserve a grave space; whether it be granted depends on the circumstances of the case, In re Sargent (1890) 15 PD 168 (Ct of Arches) and De Romana v Roberts [1906] P 332 (London Cons Ct).
Chancellor Petchey concluded “the present is an entirely appropriate case in which a right of reservation should be granted. In In re Blagdon Cemetery, the Court of Arches said that family graves were to be encouraged as expressing family unity”. Faculty granted. [Re St. John Eltham [2021] ECC Swk 4] [Top of section] [Top of post]
Re St. James Islington [2021] ECC Lon 1 The proposal was to rebuild the organ
as a hybrid pipe/electronic instrument, involving its pipework being turned to face the nave, with associated structural alterations. There were two parties opponent, plus other objectors. The objections included allegations of irregularity in the tendering process, and questions as to whether the extent and cost of the project was excessive. The Chancellor concluded that the PCC was entitled to choose the proposal it had selected to resolve the longstanding problems with the organ, and he granted a faculty. [Re St. James Islington [2021] ECC Lon 1] [Top of section] [Top of post]
- Order dissolving the Convocations of the Provinces of Canterbury and York on 12th July 2021 and directing the Lord Chancellor to issue Writs for that purpose;
- Order directing the Lord Chancellor to cause Writs to be issued for calling together new Convocations of the Provinces of Canterbury and York on 16th November 2021 and for electing new Members of those Convocations.
- Order giving notice of the discontinuance of burials in St Peter Churchyard, Blackley, Manchester, (Burial Act 1853 (Notice))
- Order prohibiting further burials in:-
1. St Giles Churchyard, Winchester, Hampshire;
2. Churchyard of Terrington St Clement, King’s Lynn, Norfolk;
3. St Mary’s Churchyard, Eastwood, Nottingham, Nottinghamshire. (Burial Act
1853 (Final)).
CDM Decisions and Safeguarding
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Canon Paul Overend, Chancellor: CDM Tribunal ruling The Diocese of Lincoln reports “The Deputy President of Tribunals has ruled that Canon Overend has no case to answer in the Clergy Discipline Measure action that has been taken against him.” A spokesperson for the diocese of Lincoln said:
‘After due process, a ruling has been made in the case brought under the Clergy Discipline Measure against the Revd Canon Dr Paul Overend, Chancellor of Lincoln Cathedral. It was determined by the Deputy President of Tribunals that there is no case to answer and no further steps should be taken. This has been a long and difficult process and our thoughts and prayers are with all those who have been affected by it.’
- Fr Robert Thompson The Campaign for Equal Marriage in the Church of England reports that the CDM process initiated against Fr Robert Thompson has been dismissed. “Fr Robert, a priest in the Diocese of London, was recently subject to a Clergy Discipline Measure complaint as a result of his acting as advocate for a young woman driven from her church for her sexuality. The case attracted a lot of comment in the local media and on social media, and as a result Fr Robert, who was forthright in his defence of her and challenge to the diocese, was accused of bullying and intimidation.”
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 27 May 2021 when applications were approved, subject to conditions:
- Cathedral Church of Christ, Canterbury. Loan of Dean de Waal portrait to The Jewish Museum, New York.
- Cathedral Church of Christ and the Blessed Virgin Mary in Chester. The installation of 206 Jinko 270W Solar Optimised Panels which will be fixed to aluminium frames. These frames will sit on the Quire, Nave and South Transept roofs without penetrating the fabric.
- Cathedral Church of Lincoln. Carving of a copy of the West Front Romanesque Frieze Panel 11 lower part.
- Cathedral Church of St Peter, St Paul and St Andrew, Peterborough. To refurbish the existing retail shop and Welcome Desk located in the Cathedral, installing bespoke cabinets, gates and display units thus creating a safe and welcoming environment for visitors, worshippers, and pilgrims.
- Cathedral Church of Christ and the Blessed Virgin Mary, Rochester. To improve the lighting to specific areas of focus and service leading throughout the Cathedral, using highly energy efficient equipment to modern standards, and including emergency lighting subject to the Cathedral Risk Assessment.
- Cathedral Church of Christ and the Blessed Mary the Virgin, Worcester. Conservation of Christ in Majesty reredos in College Hall.
The next meeting of the CFCE is on Thursday 22 July 2021.
Recent summaries of specific issues that have been considered in the consistory courts include:
Churchyards
General/Miscellaneous
- “Net zero”, church heating, and the consistory courts – II, (9 June 2021).
- Index – Contested heritage, (14 June 2021).
- Protect Duty: Consultation, (22 June 2021).
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.