Review of the ecclesiastical court judgments during July 2021 (II)
Eleven consistory court judgments were circulated in July 2021 and the seven
featured in the first part of the round-up relate to reordering and other building works. This second part reviews the remaining four judgments which concern the removal and replacement of pews, and Churchyards and burials, as well as CDM Decisions and Safeguarding, and Privy Council Business.
Reordering, extensions and other building works
Removal and replacement of pews
Re St. Margaret Rottingdean [2021] ECC Chi 6 The petitioners sought permission “to remove (temporarily) the pews in the south aisle to create space for post-service fellowship and missional/social activities, and to provide a temporary kitchenette pending approval of a future major development project to reorder the church interior and construct an extension” [1]. The Victorian Society, Local Planning Authority and Historic England were basically satisfied with the proposals for temporary reordering, subject to them being time-limited. The Worshipful Mark Hill QC observed: “What the petitioners are now seeking is little more than what could be granted under an Archdeacon’s Licence for Temporary Minor Reordering, which, following a recent change in the law, may now last for up to two years.”
He noted that the Duffield framework was relatively straightforward to apply in this case:
- This is a modest, temporary reordering which is wholly reversible. There will be minimal, if any, harm to the significance of St Margaret’s as a building of special architectural or historic interest, [14];
- The petitioners’ justification for this short-term expedient is clear, well-documented and uncontroversial, [15];
- The benefit will undoubtedly outweigh the trivial harm, [16],
and concluded: “[w]hilst undoubtedly a faculty should pass the seal, because it is of a temporary nature, it will be subject to certain clear and strict conditions”. These were outlined in [17]. He granted a faculty for two years, after which the status quo should be restored, unless at the end of that period there was a petition before the court for more permanent rewording proposals. In addition, the damp problem in the nave floor “needs to be definitively addressed and resolved in such future proposals as are brought before the court” [18].
[Re St. Margaret Rottingdean [2021] ECC Chi 6] [Top of section] [Top]
Re St. Mary Chinley [2021] ECC Der 3 The petition proposed: the removal and disposal of three pews from the back of the church, replacing them with moveable tables and chairs; the removal and disposal of the wooden pulpit; and moving the stone font from the back to the front of the church [1]. The font and pulpit both came from a small Victorian chapel of rest of St Mark, in the parish of St Mary Cromford, which was demolished in 1970 (i.e. not from St Mary’s itself). The pulpit is oak, in good condition and attractive, but it is not used during worship; the font is used infrequently [2].
In view of its unlisted status, the DAC did not recommended consultation with Historic England, the local authority, the CBC or any national amenity societies [8]. No objections resulted from the public notices. However, there were health and safety/insurance issues to be addressed as it was proposed that that the work, including the moving of the stone font, would be done almost exclusively by volunteers (!) [13].
The Deputy Chancellor agreed that such harm as would be caused by the removal of the three pews is justified, so as to make a space for children to sit and engage in activities [14.1] and that stackable chairs and a table should be provided for this purpose, subject to DAC approval. With regard to the pulpit and the requirement in Canon F 6 states that every church should have a “decent pulpit for the sermon”… “unless it be not required”. Having considered Re Holy Trinity Mapperley [2020] ECC Der 1 and Re St. John the Evangelist Donisthorpe [2021] ECC Lei 1, he was satisfied that the pulpit was not “required” in this instance, and that it was justifiable to remove it. Faculty granted. [Re St. Mary Chinley [2021] ECC Der 3] [Top of section] [Top of post]
Re Holy Trinity High Hurstwood [2021] ECC Chi 5 The priest-in-charge and churchwardens sought a faculty for the following works or purposes:
“The disposal of 16 benches, the introduction of Alpha SB2M upholstered chairs; the installation of a screen and projector at the front of the church; the provision of a live link with the crèche; the installation of three metal gates outside to create a safer space for children; and the provision of key safe. The current proposals include the retention of 6 benches, 2 wardens’ benches, and 2 frontals with quatrefoils (which would be relocated to the rear of the nave and placed in front of the wardens’ benches)” [1]
The petition was formally unopposed, although representations were made during the consultation process from the Victorian Society [2]. The Statement of Need makes reference to increasing the size of congregations upon receipt of a grant from the Strategic Development Fund; it lists planned activities which currently cannot be achieved because the interior of the church is so considered insufficiently flexible [8].
With regard to the benches, they were said to present a danger as there is no lumbar strut and thus a large gap exists at the back through which toddlers and young children may fall and injure themselves. The parish considered – “and rejected with sound reasons” – the suggestions from the Victorian Society that an additional wooden rail be added or a trolley deployed to move the benches [8].
In applying the Duffield framework, the Chancellor considered that the Victorian Society had overstated the level of harm, and its observations did not sit easily with the listing statement or with the DAC’s view, expressed in the note of its site visit, i.e. “the pews did not seem to be particularly significant” [16]. Citing s35 Ecclesiastical Jurisdiction and Care of Churches Measure 2018 on the duty to have regard to church’s purpose, he observed:
“The provision of Strategic Development Funding undoubtedly recognises the community at Holy Trinity as growing and vibrant. Whilst I appreciate the force and sentiment of [the Archdeacon’s] representations in this regard, his “perversity” argument* cannot be dispositive of the petition. Were the grant of Strategic Development Funding to be sufficient, without more, to justify the grant of a faculty, this would circumvent the careful balancing of heritage and mission under the ecclesiastical exemption and the faculty jurisdiction.
[* At [11] the Archdeacon opined “it would seem slightly perverse for the church to be awarded a large amount of grant-funding but to be simultaneously prevented from doing that which the grant funding enables since, if the faculty is not granted, Holy Trinity’s mission in the community will be limited and therefore its potential for growth held back.]
He considered that the justification for the removal of these 16 benches was clear and convincing, noting “the Court can only determine the matter on the basis put forward by the petitioners. It cannot speculate on how the matter might have been decided had the proposal been less timid” [20].
The Chancellor granted a faculty. The petitioners had produced a comprehensive Statement of Need to support the mission and growth of the church. However, the Chancellor did not consider that the petitioners had made a good case for upholstered chairs and the faculty was therefore subject to a condition that the chairs should not be upholstered, on which he made the qualification:
“[23]. …whilst the evidence clearly supports the replacement of the benches with chairs, it does not, in my assessment, justify the introduction of upholstered chairs. The CBC guidance on this is clear and must be given appropriate weight (although I leave open the question of whether it constitutes ‘statutory advice’ within the technical meaning of that term as applied in planning and other cases).”
[Re Holy Trinity High Hurstwood [2021] ECC Chi 5] [Top of section] [Top of post]
Re St. Michael & All Angels Muncaster [2021] ECC Car 2 Three siblings (aged 47, 45 and 31 when the petition was lodged in October 2020), applied for a faculty to reserve two grave spaces next to their mother’s grave. Although none of them currently resided in the Parish or were on the Electoral Roll, they each were born, baptised and confirmed in the Parish, resided in the Parish until very recently, and their great grandfather, grandparents, uncle and mother are all interred in the churchyard. Their father is still alive and in due course could be interred with his recently deceased wife [“the deceased”] [2].
Having considered all relevant matters earlier, the Chancellor determined that a faculty should be granted for the reservation of the two grave spaces, as sought, and issued a judgment to that effect: [2021] ECC CAR 1. However, he did so “on the erroneous assumption that a Public Notice had been displayed for the requisite period and that there were no objections thereto”. However, this had not been received from the Registry, and the Chancellor immediately directed that the faculty be set aside and the application re-heard after the display of the Public Notice [4].
The display of the Public Notice gave rise to 4 letters of objection from those members of the PCC who had voted not to support the Petitioners` application when it was considered on 6 December 2020; by contrast, there were 24 letters in support of such application from a total of about 34 persons, together with letters from one member of the PCC who supported the application, and the incumbent (who retired in February 2021 and was then an ex officio member of the PCC. None of the objectors sought to be a party opponent [8].
The meeting of the PCC on 6 December 2020 and the associated statements and threats disciplinary proceedings against the incumbent are described in [9] to [14], on which the Chancellor commented: “I do not regard such matters as relevant to the issue which I have to determine. In my view, although comments must, of course, be appropriately expressed, as I believe they were here, the incumbent had the right to express her views, even in forthright terms, about the merits of the Petitioners` petition, as had everyone else” [14]. The Chancellor stated:
“[16]. Although the determination of whether to grant such a faculty is entirely within the discretion of the consistory court, the court will have particular regard to two matters. Firstly, it will have due regard to any PCC policy as to the reservation of grave spaces, largely on the ground that it likely to have a better understanding of local needs and wishes than the court will have but the court is not bound by to apply any such policy. Secondly, it will have due regard to the consent or otherwise of the incumbent because if a faculty is granted, such would prevent the incumbent from conducting a future burial in the plot to which it relates.
[17]. As to those two matters, it may be noted that at the time of the Petition being considered the PCC had not established any policy as to the reservation of grave spaces, in the sense that it had not passed a formal resolution to that effect, and that the incumbent supports the granting of a faculty.
[19]. …it seems common ground that there was a fairly relaxed policy of allowing burials in the churchyard of persons who had a link with the parish”.
The Chancellor was satisfied that the PCC had never passed a resolution for a policy om the reservation of grave spaces. He also said that the family’s contributions to the life of the local community should be considered as of equal weight to any financial contributions which they could have, but did not in fact, make to the Church. Faculty granted. [Re St. Michael & All Angels Muncaster [2021] ECC Car 2] [ Top of section] [Top of post]
- Burial Act 1853(Notice)
Order giving notice of the discontinuance of burials in: St Peter’s Cemetery, Carlton Colville, Suffolk; and Garden of Remembrance, Church Street, Whittington, Shropshire.
- Burial Act 1853 (Final)
Order prohibiting further burials in: St Michael and All Angels Churchyard Extension, Croft, Leicester, Leicestershire; Churchyard at St Michaels Church, Lumb, Rossendale, Lancashire; St Peter and St Paul Churchyard, Church Lane, Tasley, Shropshire.
In pursuance of the Orders in Council made on 28th April 2021 and 26th May 2021 these representations have been published and taken into consideration by a Committee of the Privy Council.
CDM Decisions and Safeguarding
- Canon Paul Overend, (6 July 2021).
- The Reverend JB by his litigation friend CD, (June 2021).
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 22 July 2021. The decisions from this meeting are yet to be reported. The next meeting of the CFCE is scheduled for 9 September 2021.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.