Ecclesiastical court judgments – August

Review of the ecclesiastical court judgments during August 2021

Six consistory court judgments were circulated in August, which featured Reordering, extensions & other building works and Churchyards and burials. Also in this post are links to other posts relating to ecclesiastical law. There were no meetings of the Privy Council or reports of CFCE determinations. The Ecclesiastical Law Association has identified errors in the citations of some earlier cases it circulated; these have been corrected, and the links in our posts modified appropriately.


Reordering, extensions and other building works

Substantial reordering

Re St. Matthew Edgeley [2021] ECC Chr 1 The Vicar and Churchwardens of the Grade II church of St Matthew sought permission for various alterations to and re-ordering of the church interior. Of the thirteen elements to the proposals in the Schedule of Works, the bulk were uncontroversial and required little or no comment [1,2]. The contentious items were: remodelling of the porch; replacement of the pews with upholstered chairs; a dais and ramp; relocation of the font; and removal of the stalls in the chancel [3]. “Somewhat misleadingly, the estimated cost of the project set out in the Petition was stated as £53,700…In fact…this was merely a figure for a (notional) ‘Phase 1’, the true cost being estimated at some £117,000 [4].

Ordinarily, a Petition such as this would readily have been capable of determination upon written representations. However,

“unfortunately and, in this diocese most uncharacteristically, an unwelcome act of illegality by the petitioners occurred in March/April 2021 when, without faculty, there was a purported sale of some twenty pew/benches from the nave. Their availability had been announced on a Sunday and via social media, and disposal to a variety of interested parties, locally and further afield, had occurred at £70 per bench [10]”.

The Chancellor directed steps be taken forthwith to recover the benches and that purchasers be advised property had not passed. Monies received were to be returned; approximately half the benches were successfully recovered [12, 13]. He also determined that a Consistory Court hearing, in person, must be held “for the full circumstances of this most unfortunate situation properly to be explored” [15]

“[23] Regrettably, it became apparent that this was not the first instance of illegality in the life of this parish or building. It was beyond the scope of the present hearing to explore how precisely it was that, in 2010/11, prior to a merger of three congregations in the present building which came about in 2011, various other significant works were carried out without faculty.”

However, having considered the evidence at a hearing, the Chancellor was satisfied that a case had been made for the changes, and he granted a faculty, provided that the type of replacement chair and the disposal of the chancel stalls should be reserved matters, not to be proceeded with in advance of further advice from the DAC and approval of the court. [Re St. Matthew Edgeley [2021] ECC Chr 1] [Top of section] [Top of post].

Reordering and alternative uses

Re St. Chad Dunholme [2021] ECC Lin 2 By a Petition dated 9 October 2019, the Petitioners sought a faculty to reorder internally St Chad’s as well as undertake external works. St Chads is Grade 1 listed and is within a conservation area. In his determination dated 21 January 2021 the Chancellor granted an interim faculty for the external works subject to some conditions. In respect of the internal works he asked that the current version of the proposals should be scheduled and re-served on the DAC, the CBC, HE and the amenity societies who had commented on the proposals, to aid clarity so he could understand better the concerns that had been raised about the state of the proposals as they then stood [1].

Reordering proposals included: remove toilet, replace with servery and construct mezzanine with staircase and screen facing the nave, [9] to [17]; replace pews and pew platforms with ‘Theo’ chairs, [18] to [20], on which he stated “I could not permit upholstered chairs”, [19]; new stone floor, [21] to [27]; repositioning of the font, [28] to [36]; electrical heating, lighting and audio-visual works, [37] to [40]; internal redecoration, [41, 42]; and relocation of the chancel screen, [43] to [46].

The greatest concerns of the amenity societies related the mezzanine and stairs, although in view of the Church’s “net zero” commitment, the component of the works relating to heating is the most significant. On this the  CBC raised the issue of a renewable energy source suggesting an air or ground source heat pump, [36]. The Petitioners acknowledges that this would be a major project and noted that the proposed heating system would be compatible with integration with an air/ground heat source heat pump in the future, [37, 38].

The Chancellor considered each of these proposals separately, and also the project as a whole, to decide whether it meets the Duffield test. He was satisfied that both considered separately and as a whole these proposals are such that a faculty could be  granted, subject to the conditions. [Re St. Chad Dunholme [2021] ECC Lin 2] [Top of section] [Top of post]

Removal and replacement of pews

Re St. Peter Gaulby [2021] ECC Lei 2 The petitioners wished  to remove fifteen of the nineteen pews in the nave, retaining two pews in the nave and two in the chancel, and introduce fifty lightweight stackable wooden chairs, some with arms and some with vinyl padded seats [1]. The church originally had Georgian box pews but they suffered from woodworm and were removed in the 1960s. Chairs were used in the interim until the current pews were installed in the 1990s, acquired from a boarding school chapel in Dorset. They were not thought by the DAC’s expert to be of significance, save for some carved decorative ends, the best of which will be retained [4]. The Amenity Societies and others gave a range of views on the replacement seating [5]

The choice of chair has been arrived at following consultation with churchgoers and villagers, some of whom are medical practitioners working regularly with the age group whom this project will initially serve (55 – 96 years). There were concerns expressed about the comfort of elderly members of the congregation. The proposed hard-wearing vinyl padding has been chosen for comfort and practicality. The PCC exhibited awareness of the CBC guidance away from padded chairs but considered the need and preference of the congregation and community as overriding. It has identified a need for a mixture of chairs, some unpadded; some padded with arms, and some simply padded [6].

The Chancellor determined that the pews were ‘lacking in connection to the church and not lending any particular style to it’, so that in removing the pews there would be no harm to the significance of the church as a building of special architectural or historic interest [9]. Notwithstanding the amenity societies not being in favour of some of the seats being padded, the Chancellor decided that the effect of beige padding on light teak wooden frames would be minimal, and she therefore granted a faculty. [Re St. Peter Gaulby [2021] ECC Lei 2] [Top of section] [Top of post]

Re St. John the Evangelist Ashton Hayes [2020] ECC Chr 1 Note that the judgment Re Holy Cross Woodchurch was initially given the neutral citation [2020] ECC Chr 1; in view of the clash with St. John the Evangelist, Ashton Hayes it has now been changed to Re Holy Cross Woodchurch [2020] ECC Chr 2 and the links to this case on L&RUK have been changed appropriately.  

The petitioners wished the Chancellor to vary a faculty granted in 2018 in respect of the choice of chair to be used in the internal reordering of the church, by approving their suggested choice of the (upholstered) Alpha SB2M chair in substitution for the previously intended Trinity ‘Abbey’ (un-upholstered) chair. The Church Buildings Council, the Victorian Society and the Diocesan Advisory Committee were not in favour of upholstered seating. The Chancellor was satisfied that the proposed alternative seat had a good ‘track record’ and that it was acceptable for this particular church. He accordingly granted a faculty. [Re St. John the Evangelist Ashton Hayes [2020] ECC Chr 1] [Post] [Top of section] [Top of post]


Churchyards and burials

Churchyard Regulations

Re St. Michael & All Angels Bugbrooke [2021] ECC Pet 1 This case was first reviewed in April 2021. A revised version of the judgment has been issued, and the relevant links were changed on 5 August 2021.

Re Redland Parish Church [2021] ECC Bri 4 The Churchyard of Redland Parish Church was closed to all burials in 1979. However, the ashes of the late Joan Tandey were interred unlawfully on18 August 2018 in an area of the churchyard was not considered as a suitable area for the creation of the garden of remembrance (an earlier consideration of the PCC that did not come to fruition).

A note of a discussion between the Ven Christine Froude and Canon Michael Johnson, then associate Archdeacon that took place on 4th March 2021 reveals that she had advised that an incumbent “‘had discretion” to inter ashes in his churchyard. However, the Chancellor could find no evidence of the incumbent advising the archdeacon that the churchyard was closed by Order in Council, in which case a faculty would have been required to authorise the interment [4].

There was now an application for a confirmatory faculty for the interment and for the erection of a memorial [6]. The Chancellor clarified that he could not authorize the introduction of a memorial until the position of the interred ashes could be clarified [7]. He stated:

“[8]. It seems to me that any pastoral issues here have been exacerbated by the behaviour of the previous incumbent in offering a solution and obtaining permission from the then Archdeacon either by giving her the impression that the Churchyard was still open or neglecting to correct her erroneous belief that it was still open.

[9]. There have been very serious failings here by the previous incumbent and the petitioners in not obtaining lawful permission for this interment.

Whilst it was within his powers to order the exhumation of those ashes, he did not make that order “for the same pastoral reasons that have guided the whole of this sorry business. Wherever fault lies in this case it is not with Joan Tandey’s widower or any member of her family.”

He granted a confirmatory faculty for the interment of Joan Tandey’s ashes and grant a faculty for the introduction of a memorial; he made it a condition of this faculty that the memorial conforms to the Churchyard Regulations. [Re Redland Parish Church [2021] ECC Bri 4 ][Top of section] [Top of post]

Re St. Lupus Kirk Malew [2020] EC Sodor 1  The deceased died on 28 March 2015 and on 10 April 2015 was interred in grave G55 in the Churchyard of St Lupus Kirk Malew in the Parish of Malew and Santan. By an Application dated 7 February 2019, his widow sought a faculty for the erection of kerbs to the deceased’s grave; footings for the kerbs had already been laid without a faculty first being obtained. A memorial to the Deceased is in situ [2].

The churchyard is administered by the Parish of Malew and Santan [8]. Although there are several sets of kerbs in other parts of the churchyard, a decision had been made by the church in 1987 not to allow kerbs in the particular row where the petitioner had applied to reserve a grave; this was because the path at the foot of the graves narrowed, and to allow kerbs along the row would ultimately restrict the path and inhibit access for maintenance machinery. The DAC ‘recommended the works or proposal for approval by the Court’ by a Notification of Advice dated 22 March 2019, subject to restrictions on the size of the plot [11,12].

An objection letter was lodged by Mr A A Kelly on behalf of Churchyard Services who supply maintenance and gravedigging services to the Churchyard [14,15]. The letter raised several practical issues from a groundsman’s perspective [15 (a) to (g)]. However, he did not wish to become a party opponent.

The Deputy Vicar General cited Re Holy Trinity Freckleton  [1994] 1 WLR 1588 and Re Christ Church Harwood [2002] 1 WLR 2055 at 2056; both cases have been relied upon in the Diocese, particularly in the case of Re Katherine Frances Frankland-Davies Deceased, decided by The Worshipful Geoffrey Tattersall QC in May 2017, [the “treble clef case”, reported here].

On the findings of the Deputy Vicar General [17 (a) to (l)] she stated:

[32]. Whilst I note that a significant number of the graves in the Churchyard have kerbs, nevertheless the decision was taken by the authorities that kerbs would not be allowed after 1987 in Row G. I can see no compelling reason to depart from that decision. For all of the reasons set out above, I dismiss the Applicant’s application and, for complete transparency, I reject the revised plan for kerbs of reduced length.

[33]. Whilst I understand that the Applicant now wants kerbs to mark out her Husband’s plot, she agreed not to install them when the plot was purchased and is therefore bound by that contractual agreement.

Dismissing the Application, the Deputy Vicar General ordered that: the footings for the kerb are removed within 42 days of the date of the judgment [34]; and the Applicant shall make good the grass area damaged by the kerb footings within 42 days of the date of the judgment [35]. Actions following a default of these conditions are laid out in [36, 37].

 [Re St. Lupus Kirk Malew [2020] EC Sodor 1][Top of section] [Top of post]


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 22 July 2021, the report of which is not yet available. The decisions from this meeting are yet to be reported. The next meeting of the CFCE is scheduled for 9 September 2021.


Other legal issues


Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

Reordering, extensions & other building works

Churchyards

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

Cite this article as: David Pocklington, "Ecclesiastical court judgments – August" in Law & Religion UK, 31 August 2021, https://lawandreligionuk.com/2021/08/31/ecclesiastical-court-judgments-august-3/

 

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