Review of the ecclesiastical court judgments during February 2022 (I)

Fifteen consistory court judgments were circulated in February 2022, and the seven featured in this first part of the round-up all relate to Reordering, extensions and other building works, and memorials. The second part reviews the remaining eight  judgments which concern Exhumation, Churchyards and burials and Bells; also CDM Decisions and Safeguarding, Privy Council Business, CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

The Faculty Jurisdiction (Amendment) Rules 2022, SI 2022/155 were laid before Parliament on 23 February 2022 and come into force on 1 July 2022. The background to the changes was discussed in our post earlier this month.

Reordering, extensions and other building works

• Substantial reordering
• Other building works, including re-roofing
• Removal and replacement of pews
• Heating

Substantial reordering

Re St. John the Evangelist Abbeydale [2021] ECC She 7  The Petitioners sought permission to undertake extensive re-ordering to enable more varied use of the church both in worship and for community events and to provide greater accessibility [2]. The works constitute Part 2 of a long term reordering plan, Phase 1 of which was permitted and undertaken in 2015. The church, constructed between 1873 and 1876 is unlisted, it is not in a tree preservation area or a designated wildlife area. There were no objections to the Public Notice [1].

There had been consultation with parishioners including a display of the church architect’s floor plans and illustrations following an introduction by the vicar in May 2019. Although some reservations were expressed, there was a general welcome for the provision of a more direct access to the church building, for a more accessible building, an accessible toilet, a refreshment point and a new lighting scheme [4]. The DAC recommended the works subject to certain provisos [5]. The Chancellor agreed with the Petitioners assertion that these works will have little impact on the overall architectural character and appearance of the building.

In granting a faculty, the Chancellor indicated that the Petitioners should keep in close consultation with the DAC, as required by the Provisos require. They should also maintain contact with the planning authority and ensure that facilities for proper oversight by the planning authority is afforded when necessary [6]. [Re St. John the Evangelist Abbeydale [2021] ECC She 7] [Top of section] [Top of post]

Other building works, including re-roofing

Re St. Peter and St. Paul Hoxne [2022] ECC SEI 1 The church wished to repair and reassemble a Victorian screen, formerly under the tower arch, but had been in a dismantled state for many years [1]; the Petitioners subsequently wished to repair the Lady Chapel steps, shorten two pews, reassemble the screen at the bottom of the steps and dedicate the chapel to St. Edmund [2].

The Archdeacon gave List B consent for the restoration of the screen and the repair of the steps only, which did not include the re-erection of the screen or alteration of the pews.  When an application was made for a faculty for the works in the chapel, a parishioner objected on the grounds of insufficient local consultation and wished to be a party to the proceedings [4]. The faculty was put on hold pending discussions with the objector [5], but the parish installed the screen regardless [6].

The petitioners applied to the then chancellor for his authority for the screen and the shortened pews to remain in place on a temporary basis for 12 months to allow for further consultation with the objector and further development of the plans for other work. After the year had elapsed, it was proposed that the screen would be removed and put into storage, and the pews restored, unless a further licence or a faculty was granted in the meantime. They also asked for permission for the faculty application to remain pending, but not be determined or withdrawn, except on the parish’s application or on the chancellor’s orders after notice to the parish [7].

With regard to the instant case, the Petitioners now applied for a confirmatory faculty to: re-assemble and repair the St Edmund timber screen and for its erection in front of the steps leading to the east end of the north aisle; and to shorten two pews while retaining their pew ends [9].

The objector withdrew her objection, as she felt ‘vilified’ by the petitioners. The Chancellor saw no evidence of this ‘vilification’ but noted  it was clear that there is a degree of pastoral breakdown here within the parish that needed to be mended [13]. He granted a faculty, ordering the petitioners to pay the costs of the Registry and any costs incurred by the objector [14]. [Re St. Peter and St. Paul Hoxne [2022] ECC SEI 1] [Top of section] [Top of post]

Re St. Budeaux Devonport [2022] ECC Exe 1 The Vicar and Churchwardens applied for permission for the creation of a disabled access toilet, a relocated and expanded kitchenette area and the removal of some pews at the front and back of the main nave pew block, to enable greater freedom of movement and flexibility of use, which would also help wheelchair users, who would not then have to use the central aisle [1]. The PCC and, subject to one caveat, have been approved by the DAC. Three of the parishioners, who are concerned about the proposed changes, have set out detailed points of opposition in letters/emails to the Registrar; however, they did not become parties opponent [2]. The Chancellor conducted a site visit and remote meetings with a number of the parties [3] to [6]. He noted that all of the written and oral observations that have been made by the three objectors were to be taken into account by the court, but none was a formal ‘party opponent’ within the proceedings [7].

Since 2007 the DAC for the Exeter diocese has, each year, reviewed the applications that had been before the committee during the previous 12 months in order to identify those regarded as excellent in terms of the content of the proposals and/or the engagement with the Faculty process. The DAC considered that the reordering of St Budeaux was suitable for an Award [12] and in order to consider this application, the Chancellor took each element in turn, identifying both the asserted merits and the matters of concern that have been raised [13] to [28]: these were considered in his discussion [31] to [49] respectively.

The Chancellor directed direct that a Faculty be granted in the terms sought in the Petition, subject to a condition that the caveat attached to the DAC Notice is satisfied [50]. He concluded by stating:

“[51]. Before ending this judgment, I wish to repeat, firstly, what I have said about the assistance that I gained from the focussed and pragmatic submissions that have been made by the three objectors. I have not agreed with them, but I respect their views and have valued their contributions.

[52]. Secondly, I repeat my gratitude to one and all for the civilised manner in which this process has been conducted.

[53]. Thirdly, and finally, it is clear to this outside observer that the promotion of these proposals has caused, to some degree, a fracture in relationships amongst the small group who attend this church, which is deservedly much loved by them all. It is to be hoped that the issuing of this judgment, with the final determination of the outstanding issues, can be a moment at which a line can be drawn, so that the current dispute is at an end, and so that bridges can be built, lessons learned and communication improved.”

[Re St. Budeaux Devonport [2022] ECC Exe 1] [Top of section] [Top of post]

Re St. Mary the Virgin Clifton Campville [2022] ECC Lic 1

The Grade II listed St Mary the Virgin in No Man’s Heath was built in 1863 was declared redundant in 2001 and in 2005 it was leased to The Friends of St Mary on the Heath for a term of 99 years. The church is in the parish of Clifton Campville, and under these circumstances, the church building is no longer subject to the faculty jurisdiction, although the churchyard remains open and is subject to the faculty jurisdiction [1].

The chairman, secretary, and treasurer of The Friends of St Mary on the Heath sought a faculty for the construction of a trench through the churchyard. The trench is to take a foul drain from a disabled toilet which is to be installed in the church building [2].

On 11th June 2021, North Warwickshire BC as the relevant local planning authority gave planning permission for the proposed works imposing a condition that the trench was to be dug by hand and that works should cease in the event of human remains or items of archaeological interest being found in the course of the excavation [3]. The DAC recommended approval of the petition; the Notification of Advice records the view of the diocesan Archaeology Adviser that it is unlikely that human remains will be encountered in the course of the excavation [11]. The Council’s decision was preceded by a report from its officers which characterized the work to the church building as a “necessary upgrade”. It did not exclude the possibility that human remains would be disturbed during the excavation but said “the position of the drain has been selected to minimise the likely exposure of graves” [12].

The Chancellor stated that most of the matters raised by the part opponent were not relevant considerations for his decision [13]: the local authority had approved the proposal, and was therefore presumed not to be concerned about the laying of an additional drain in the village. However, he potential disturbance of burials and the impact on human remains interred in the churchyard was a relevant consideration for this court. If there were to be a significant risk of human remains being disturbed he would have to reflect on whether the benefit of the proposed works would justify such disturbance and the extent to which the impact could adequately be minimised by conditions providing for the seemly re-interment of disturbed remains [16].

However, the Chancellor was satisfied that in the circumstances here there was no significant risk of human remains being disturbed, and even if the churchyard does contain graves the risk of the disturbance of human remains is minimised by the condition imposed by the council on the planning permission and by the conditions which he imposed [16].

The Chancellor therefore considered it appropriate to grant the faculty sought. [Re St. Mary the Virgin Clifton Campville [2022] ECC Lic 1] [Top of section] [Top of post]

Removal and replacement of pews

Re St. Leonard Hythe [2022] ECC Can 1 An application had been made by a private individual for a restitution order against the Archdeacon, requiring him to replace the pews which had been removed from the church in the summer of 2020, on the grounds that their removal was not permitted by a licence for temporary minor reordering, and was therefore unlawful. The Archdeacon had not actually given permission for the pews to be removed. They had been removed by the Churchwardens and Parochial Church Council (PCC), who subsequently undertook to return the pews to the church in October 2021, but did not do so until December 2021. The Commissary General gave directions for the Archdeacon to be removed as the respondent and replaced by the Churchwardens and PCC. The Commissary General also considered it appropriate, in the interests of certainty, to issue a restitution order, and he directed that the new respondents should pay the costs of the application and of the hearing. [Re St. Leonard Hythe [2022] ECC Can 1] [Post] [Top of section] [Top of post]

Heating

Re All Saints Woodham [2022] ECC Gui 1  The ELA summarizes this judgment as below. In addition, we have post a separate review of the issues raised, infra. “A new underfloor heating system was proposed for the church, and the proposals included replacing the wooden floor boards of the nave with hand-made tiles, and replacing the wood block flooring in the Lady Chapel with limestone. The Victorian Society was originally, on aesthetic grounds, against replacing the wooden floor boards  and the wood block flooring. However, the evidence of the Senior Project Consultant was that wood flooring over the underfloor heating would be less thermally efficient. At a meeting of the Victorian Society, the Church Building Council and the Diocesan Advisory Committee, a compromise version of the specification for the design of the tile flooring was agreed. The Chancellor granted a faculty.” [Re All Saints Woodham [2022] ECC Gui 1] [Post] [Top of section] [Top of post]

Memorials

Re St. Andrew Stockton-on-Teme [2022] ECC Wor 1 A memorial to a churchwarden of nearly 40 years standing had been erected by his daughter some time after his death without faculty, bearing his family crest and a brief inscription [4]. The stone is of poor quality and had been fixed to the inside stonework of the church with “merely standard screws”. Its condition is deteriorating making it difficult to read, and the current churchwarden sought permission to restore it by painting or inscribing the lettering in black [5].She explained:

“We had consulted the then Rector and Parish Council and they were delighted with the idea, but no one ever mentioned we had to have permission from above. If we had known, we certainly would have filled the relevant forms in”!

The Chancellor observed that it was not clear whether the Parish Council was meant or the PCC (the deceased having been a member of both); “clearly the latter, including the minister, should have known that a faculty was required” [5]. On discovering that no faculty had been granted for the memorial, she applied for a confirmatory faculty and for permission to have the inscription repainted in black.

The DAC, noting that the plaque has been in place for some 15+ years without complaint, did not object to the works or proposals being approved by the court subject to the certain provisos [7].

After reviewing the memorial and others in the church, the Chancellor stressed the importance of obtaining a faculty for proposed works:

“[9]. Had a proper application been made and the DAC consulted at an early stage they could have ensured that a better-quality monument was installed. One that was designed to last and more in keeping with the other monuments in this handsome, ancient, grade II* listed church and installed without damaging the historic fabric”,

clearly more than the “form filling” exercise envisaged by the churchwarden.

“[10]. … Memorials on consecrated ground, whether in graveyards or within a
church building should be of high quality. Gravestones in a churchyard must be within particular specifications to be permitted without the need for a full faculty. This ensures that shared sacred space open to all the local community for burial of their loved ones is regulated with concern for all people affected, not just those seeking permission for a particular memorial.

Churchyard regulations do not apply to memorials within the church building so a full faculty is required for any monument that is proposed to be installed. When an application is properly made in advance there is rightly the closest scrutiny of any such memorial to ensure the size, location, quality and design is appropriate for a place of worship shared by the whole community”.

The Chancellor determined that it was appropriate to have a memorial inside the church to such a long-serving churchwarden, who had also served on the Parish Council. She granted a faculty subject to conditions regarding a better form of mounting of the memorial, the colour of the lettering, amendments to the wording and the method of fixing [13]. [Re St. Andrew Stockton-on-Teme [2022] ECC Wor 1] [Top of section] [Top of post]

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