Review of the ecclesiastical court judgments during March 2022
In contrast to earlier this year, only nine consistory court judgments were circulated
in March 2022, although the 106 pages of the Rustat decision provide more than sufficient material for the month. The remaining judgments fall within the more familiar categories of Reordering, extensions & other building works, Exhumation, and Churchyards and burials. This summary also includes Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Reordering, extensions and other building works
Other building works, including re-roofing
Re St. Saviour Nottingham [2022] ECC S&N 1* In January 2018, a faculty was
granted for some reordering work within the church. The works included the installation of some Softplay equipment, which was to be managed by KM Play Ltd., a company limited by guarantee. One of the conditions of the faculty was that, before commencement of the works, there should be binding legal obligations in place between the church and KM Play. This condition was not complied with, but Softplay activities took place (apart from during certain periods of the pandemic).
The present proceedings were to consider an amendment to the faculty, to authorise and approve a proposed agreement between the church and KM Play. The Chancellor granted a faculty approving the proposed agreement, subject to a condition that it should come to an end on 30 September 2024. If the church wished to renew the agreement, it would need to apply for another amending faculty before then, at which time the operation of the agreement during the intervening period would be reviewed. (Other conditions required the company to obtain certain confirmations from the Charity Commission, HMRC and the Diocesan Safeguarding Officer.) [Re St. Saviour Nottingham [2022] ECC S&N 1][Top of section] [Top of post]
* This case summary by Ray Hemingray for the Ecclesiastical Law Association provides a concise review of the issues involved.
Removal and replacement of pews
Re Holy Cross Ashton Keynes [2022] ECC Bri 1 The petitioners sought permissions for the removal of 6 pews from the back of the church, to provide an open space that could be used as a welcome and circulation space and for post-service social time. They also proposed to shorten 14 other pews, in order to provide more flexible space [3]. The Victorian Society and Historic England raised objections to the removal of 6 pews [4], [5]. The CBC did not oppose the proposals in principle, but raised concerns over the petitioners’ original assertion that the pews were installed 20 years after the Butterfield re-ordering [6]. SPAB raised no concerns over the proposals [9].
The petitioners provided a number of photographs depicting a wide range of community and other events that had been possible in the Church whilst the temporary re-ordering was in place. They had also taken photographs of some of the pews which are sited immediately behind substantial pillars in the nave, indicating that at least some of the pews have areas where all views are cut off and, indeed, where parts of the pews cannot be used for sitting in at all [11].
Having considered the matters raised by the CBC, Historic England and the Victorian Society and having balanced them against the responses given by the Petitioners, Chancellor Gau was persuaded that any harm caused to the significance of the Church is justified by the public benefits that would result from it [13]. He granted a faculty on condition that: the carved pew ends from the pews were to be removed and carefully separated from the main pew structure and retained for re-use or display within the church building; and the remaining elements of the dismantled pews may be disposed of as appropriate [14]. [Re Holy Cross Ashton Keynes [2022] ECC Bri 1] [Top of section] [Top of post]
Re St. Peter Frimley [2022] ECC Gui 2 This Grade II church building was built in 1825/1826 and had been reordered and modified in the 19th century [2]. In 2011, there had been a major reordering approved by faculty [3], a consequence of which was the visual inconsistency between the light oak of the entrance, the dark pine of the pews/gallery and the light oak of the chancel [4]. In July 2020, the PCC decided how to reopen the church, adhering to COVID-19 guidance, and a sub-committee proposed the temporary removal of the pews; this was authorised by Archdeacon’s licence on 29 July 2020. The church’s architect observed the pews were in a poor condition and would need significant repair if reinstalled.
Responses to a parishioners’ consultation during February 2021 were considered by the PCC in March 2021 together with the architect’s inspection report. A majority of the consultees were in favour of removing the pews, but some were strongly opposed; the PCC decided (by a vote of 13 to 2) to replace the pews with chairs “Bethel” chair manufactured by Trinity [5].
The Victorian Society objected to the removal of the pews, and also to the proposal for upholstered chairs, as did the Ancient Monuments Society and the Church Buildings Council. Historic England made no comment [7]. The DAC in its response noted that parishioners’ concerns about social distancing are likely to continue for some time and this is addressed by the proposals, stating “[t]hey also assist the requirement to meet ‘net zero carbon’ by 2030 [???] and the Bishop of Guildford’s Transforming Church, Transforming Lives vision” [8].
The public consultation notice resulted in a large number of letters of objection, with common themes, many are based on a general preference for ‘traditional’ pews over ‘modern’ chairs [9]. However, none of the objectors applied to be a party
opponent but in order to ensure proper consideration to the strength of feeling, the Chancellor undertook an informal visit to St Peters on 10 February 2022 [10].
The proposals were assessed under the criteria in Re St. Alkmund, Duffield [2013] Fam 158. Noting that non-binding CBC recommendation for non-upholstered chairs CBC guidance, the Chancellor cited with approval Re St. Michael & All Angels Alvaston [2020] ECC Der 3 which determined that in appropriate cases upholstered chairs would be suitable for listed churches. He was persuaded by the environmental, comfort and missional value of upholstered chairs to enable modern forms of worship as recommended by the DAC, and also noted the proposed upholstery colour fits well with other colours in the church building and will also provide an aesthetically satisfactory solution [14]. In these circumstances he direct that a faculty should be issued [15]. [Re St. Peter Frimley [2022] ECC Gui 2] [Top of section] [Top of post]
Church Treasures/Sale of Paintings/Loans/Memorials
Re The Rustat Memorial, Jesus College Cambridge, [2022] ECC Ely 2 HH Judge David Hodge was specially appointed by the Bishop of Huntingdon to act as Deputy Chancellor to determine the petition presented by the College, which sought permission to remove from the College Chapel a Grinling Gibbons memorial to Tobias Rustat, who had been a benefactor of the College in the 17th century. The College contended that Rustat’s investment in companies connected with the slave trade created a serious obstacle to the Chapel’s ability to provide a credible Christian ministry and witness to the College community and a safe space for secular College functions and events.
The Deputy Chancellor refused to grant a faculty. He considered that the removal of the Rustat memorial from the west wall of the Chapel would cause considerable, or notable, harm to the significance of the Chapel as a building of special architectural or historic interest, and he was not satisfied that a clear and sufficiently convincing justification for the removal of the memorial had been made by the College. [Re the Rustat Memorial, Jesus College, Cambridge,[2022] ECC Ely 2] [Post] [Top of section] [Top of post]
Re Tow Law Cemetery [2022] ECC Dur 1 The petitioner wished to have the body of her father, who died in 2010, exhumed from the municipal cemetery and reinterred in unconsecrated ground on the family farm ten miles away [1]. At the time of the deceased’s death, the family was unaware that burial on private land was possible, and indicated that had they known at the time, they would have had the deceased buried on the farm. The deceased’s widow applied to be added as a petitioner after the petition was lodged, and she wished to be buried in due course with her late husband on the farm [2] to [4]. The public notice generated no comments, and the Bereavement Services Co-ordinator for Durham County Council confirmed that the local authority had no objections to the petition [4].
The Chancellor stated that applying the principles set out in Re Blagdon Cemetery [2002] Fam 299, the grounds relied upon by the petitioners did not amount to a mistake – there was no error in administration that now needs to be corrected. Instead, the petitioners have had a change of mind; they would now like the deceased to be buried at home, where his widow in due course would also be buried so that they would be together. Not knowing that home burial may have been an option 11½ years ago does not amount to a mistake within the meaning of Blagdon [12].
It was suggested that the proposed re-burial site would be a family burial plot; however, the proposed site is private land and is not an established family burial plot. There was no evidence before the court that the deceased and his widow ever discussed, considered, or agreed that they would be buried together [13]. Furthermore, the Chancellor pointed out that the petitioners had not addressed the issue of care for the proposed grave on private land. Faculty refused. [Re Tow Law Cemetery [2022] ECC Dur 1] [Top of section] [Top of post]
Re Streatham Park Cemetery [2022] ECC Swk 1 Mrs Delseta James died recently and her remains were buried in the consecrated part of Streatham Park Cemetery on 4 March 2022. It was intended that these should be buried with those of her son, who died in tragic circumstances when still a child. However, by mistake her remains were buried in a different grave where the remains of a Ms Dupoix were buried. The current owner of this grave is not known, and the Chancellor expressed his doubts as to whether they would now have any residual rights in the grave.
Arrangements had been made for the necessary exhumation and re-interment of Mrs James’s remains to take place on Friday 18 March 2022, subject to the grant of a faculty. The Chancellor, noting that a mistake is well recognised as the sort of matter which may constitute exceptional circumstances Re Blagdon Cemetery [2002] Fam 299, granted a faculty.
Having carefully considered the position of whoever owns or otherwise has an interest in the grave of Ms Dupoix, the Chancellor stated:
“Obviously the burial of Mrs James’s remains should not have taken place where it did, and one may be confident that those who are interested in Ms Dupoix’s grave will also want the mistake rectified as soon as possible. Although, of course, there should be no concealment of what has happened, I see no reason for any further steps being taken to identify those who have an interest in the grave.
I am working on the basis that there is no obvious sign of continuing maintenance of this grave; if the position were otherwise, it might be appropriate to take further steps to identify who is maintaining the grave and notify them of what has happened.
The Chancellor was assured by Ms Kirsty Wilkinson, Crematorium and Cemetery Business Leader at Streatham Park Cemetery that the Cemetery is improving its systems to try to ensure that the misreading of a number, which occurred in the present case, does not occur again. [Re Streatham Park Cemetery [2022] ECC Swk 1] [Top of section] [Top of post]
Re Parkwood Cemetery Waterhouses [2022] ECC Dur 2 The petitioner sought to have the body of her 15 year old daughter, Grace, who had died in tragic circumstance in 2018, exhumed from the consecrated section of the municipal cemetery and cremated [1]. It was intended that the remains would be taken to Canada and laid to rest in an unspecified place [2].
The Chancellor, applying the principles laid down in the Court of Arches decision in Re Blagdon Cemetery [2002] Fam 299, determined that the petitioner had failed to prove that there were exceptional circumstances to justify the grant of a faculty for exhumation [7,8]. He commented:
“[11]. Grace was buried in Parkwood Cemetery for a reason: it was close to where she had lived and where she had belonged. The petitioner’s proposal, if permitted, would result in Grace’s remains being removed from County Durham where she was born and had lived. Her remains would then be cremated, taken overseas to a land that meant nothing to her, and at some future date reinterred in an unspecified plot. I can make no findings as to what Grace’s views would have been about such a proposal, but merely note that if a faculty were granted Grace would leave behind no trace where she was raised, and any friends who wished to visit her grave here would be unable to do so.
[12]. The petitioner’s plans are incompatible with the important principle of permanence of burial in consecrated land. Grace’s remains are not to be regarded as portable, to go wherever the petitioner chooses to live.”
[Re Parkwood Cemetery Waterhouses [2022] ECC Dur 2] [Top of section] [Top of post]
Designation of closed churchyard
Re St. Edith Monk’s Kirby [2022] ECC Cov 1
The Petitioner, Lady Samantha Feilding, sought permission for the removal of a severely damaged memorial upon the grave her Great, Great, Great, Great Aunt, Lady Mary Feilding, to be replaced with a honed granite memorial based upon photographs and a written description of the original memorial from 1896 or shortly thereafter [1].
The existing memorial, if still intact, would have been outwith the current Churchyard regulations, particularly in view of its kerb stones, which often cause church yard maintenance problems [5]. The proposed design, being a stone cross upon three tiers of steps and with kerbs bearing an inscription around the edge, was not within the churchyards regulations, issued on All Souls Day 2020 (and subsequently amended since). The person commemorated, Lady Mary Feilding, had been the founder of the Mary Feilding Guild, which promoted employment and suitable housing for ladies in need of some support.
The replacement of the memorial received general support from the PCC [6], and the DAC determined to issue a notification of advice certificate of recommendation for the installation of the proposed replacement memorial. The certificate was, however, endorsed with certain recommendations [7]. The public notice which displayed both inside the porch and outside the church for a period of more than 28 days generated no objections [8].
In considering the application, the Chancellor was mindful that it was effectively returning that area of the Churchyard back to how it must have looked over a hundred years ago, rather than seeking to introduce an entirely new memorial. He considered it appropriate to have a new memorial erected to the original design and granted a faculty subject to a condition, inter alia, that no chippings should be placed within the kerbs. He also gave permission for a plaque or inscription to be placed on the back of the memorial, setting out the year and reason for the installation of the replacement memorial, linked with the charitable legacy of Lady Mary Feilding. [Re St. Edith Monk’s Kirby [2022] ECC Cov 1] [Top of section] [Top of post]
Re St. Joseph and St. James Follifoot [2022] ECC Lee 1 This “straightforward petition” sought permission to fell and grind out the roots of a holly tree and to repair a collapsed section of the churchyard wall [1]. The proposed works were recommended by the DAC subject to the uncontroversial proviso that there be appropriate compensatory planting [3]. The parish had taken professional advice from a reputable tree specialist, and the proposal was supported by a detailed report from the parish’s experienced inspecting architect. The necessary formalities had been observed with Harrogate Borough Council and no tree preservation order had been made. [5].
A local resident, who is on the electoral roll of the parish, emailed an objection in response to public notice, in which he contended: [i] that the removal of the tree was unnecessary; [ii] that judicious pruning would enable the wall to be rebuilt; and
[iii] that the costs were excessive, unnecessary and should not be borne by the parish or the church. He offered to project manage and/or carry out the work, and said he would pay for it [6].
The Chancellor noted that the case for the removal of the tree and the reconstruction of the wall was overwhelming; “the Court must give due weight to the opinion of professional tree specialists, the inspecting architect and the combined wisdom of the DAC”. He was satisfied that nothing short of complete removal will sufficiently address the matter [10].
As to the costs of the works, there was nothing in the quotations to suggest that these may be excessive – “it is not the function of the Consistory Court to micro-manage the decisions of a PCC in the discharge of its statutory and other functions. In the absence of irrationality or bad faith (which are neither alleged nor apparent) the Court will not interfere with the manner in which the PCC utilises its resources” [11].
In granting the petition, subject to the condition of a replacement planting [12], the Chancellor added:
“[13]. As the objector chose not to become a party to these proceedings, the Court cannot entertain an application that he pay some or all of the additional Court fees that have arisen. The costs must be borne in full by the parish. But I very much hope that the objector will stand by his generous offer and make a financial contribution towards the cost of the works, notwithstanding that he might have preferred a different outcome”.
[Re St. Joseph & St. James Follifoot [2022] ECC Lee 1] [Top of section] [Top of post]
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Michael and All Angels Old Churchyard, Loddiswell, Devon.
- Burial Act 1853 (Final): Order prohibiting further burials in: St John the Evangelist Churchyard, Sewerby, East Yorkshire.
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 24 March 2022 although these determinations have not yet been published.
- Cathedral Church of Christ, Blessed Mary the Virgin and St Cuthbert of Durham. Loan of item to Metropole Rouen Normandie Museum of Fine Arts for exhibition, as follows: DCD 1.2.Spec.23* Charter of Matilda, with Seal. The charter with its Seal will be on show in a major international exhibition which beings together current research about the Normans to explore new viewpoints and questions. The item is currently stored in the Cathedral Archives at 5 the College, where it is available via the reading room but not on public display. Approved subject to conditions.
- Cathedral Church of Christ, Blessed Mary the Virgin and St Cuthbert of Durham. Loan of medieval stone sculptures to the Laing Art Gallery for display in the Lindisfarne Gospels exhibition, as follows: DURCL 17.2.28 ‘Berchgyd’ Grave marker (Hartlepool); DURCL 17.2.50 Cross shaft (Yarm). Approved subject to conditions.
- Cathedral Church of Christ, Blessed Mary the Virgin and St Cuthbert of Durham. Loan of item to Durham University for exhibition, as follows: DCD 3.3.Pont.10. Grant by Cuthbert Tunstall, Bishop of Durham, with his Great Seal in Chancery. Approved subject to conditions.
The next meeting of the CFCE is on Thursday 26 May 2022.
Recent summaries of specific issues that have been considered in the consistory courts include:
Church Treasures/Sale of Paintings/Loans/Memorials
- Contested heritage and the Church of England, Contested Heritage Committee of CBC, (11 March 2022).
- Rustat memorial: judgment, Short summary and links, (March 2022).
- Dunking, Breaking, Moving, (Re)Making…: Thoughts on the inherent contests of heritage, and on Rustat, (28 March 2022).
[Top]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.