Review of the ecclesiastical court judgments during April 2022 (I)
Twelve consistory court judgments were circulated in April and the six featured in this first part of the round-up all relate to Reordering, extensions & other building works and Exhumation. The second part will review the remaining six judgments which concern Churchyards and burials, and also includes CDM Decisions and Safeguarding, Reports from the Independent Reviewer, Privy Council Business, Visitations and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
- Substantial reordering
- Other building works, including re-roofing
- Removal and replacement of pews
Re St. Nicolas Great Bookham  ECC Gui 3 This judgment will be covered in a separate post. The summary from the Ecclesiastical Law Association is reproduced here: “The parish wished to carry out extensive internal reordering works to the church. The main item of contention was the removal of the 19th century stained deal pews (in order to afford greater flexibility to worship and community activities) and their replacement with 200 Howe 40/4 chairs The amenity societies had several reservations about the proposed works. The Victorian Society proposed the retention of a block of five pews either side of the central aisle.
The Chancellor decided that a mixture of modern chairs and 19th century pews would look incongruous and not serve the ambitions of the church to engage more with the community: “… in seeking to serve two masters, present needs and past aesthetics, there is the risk that it properly serves neither. I am satisfied that the parish’s genuine wish is to be able to offer a resource to the community that it cannot presently offer.” He therefore granted a faculty which authorised, inter alia, the replacement of all the pews with chairs.” [Re St. Nicolas Great Bookham  ECC Gui 3] [Post] [Top of section] [Top of post]
The chapel of Hurstpierpoint College is included in the list maintained by the Church Buildings Council under section 38 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 of extra-parochial places of worship which have elected to bring themselves within the faculty jurisdiction. The College sought permission for certain improvements, mainly to the chancel of the chapel, including the permanent retention of seating platforms; the upgrading of the lighting system; the removal of carpet from the majority of the chancel; and the repair of heating grilles to the nave floor .
The chapel is a grade II listed building and serves Hurstpierpoint College, one of three Woodard Schools in Sussex. Due to an increase in the number of pupils, the chapel currently has insufficient seating for the entire school to be gathered together, is poorly lit, and in need of some improvement. Improved lighting and work to the heating grilles are likely to reduce the chapel’s carbon footprint .
Although the Victorian Society welcomed the improvements to the platforms and the removal of carpeting, it maintained an objection to the proposed “glazed handrails” (i.e. the transparent balustrades which will serve as a safety barrier to eliminate falls from the edge of the platform. It describes these as “hugely jarring and aesthetically inappropriate” and contends that timber or iron would be more appropriate. . The DAC issued a Notification of Advice which recommended the proposals, subject to certain minor provisos in relation to which the College has given adequate assurances. .
In determining whether or not a faculty should issue, the Chancellor adopted the framework in Re St. Alkmund, Duffield  Fam 158. He unhesitatingly concludes that the resultant benefits for the missional, worshipping and corporate life of the College will outweigh any harm by a considerable margin ; “I consider these health and safety considerations to be overwhelming and reject the alternative means argument . A faculty was granted subject to conditions. [Re Hurstpierpoint College Chapel  ECC Chi 1] [Top of section] [Top of post]
Re Aycliffe West Cemetery  ECC Dur 3 The petitioners sought permission for the exhumation of their father’s cremated remains from consecrated land at Aycliffe West Cemetery, and the scattering of the ashes with the ashes of the petitioner’s mother (recently deceased) at a favourite spot in the Lake District .
Now that their mother had died, the petitioner’s wished to comply with their father’s wishes, which their mother had agreed to before she died. A supplementary written submission was sent by the brother on behalf of both petitioners relied on mistake as the ground for seeking exhumation. The petitioners contended that there was the original mistake by the brother in not speaking up at the time when the funeral arrangements were being discussed, and then there was the sister’s mistake later in not raising the issue when she too had regrets about the initial decision that had been made .
The Chancellor noted that although the petitioners here principally rely upon a mistake, he was required to consider all relevant factors to consider to determined whether there were exceptional circumstances to the general presumption of permanence, based on the Christian theology of burial . The fact that the Petitioners did not fully realize the effect of interment in consecrated land was a factor, but it did not make this an exceptional case . The Chancellor refused to grant a faculty. In accordance with the principles laid down by the Court of Arches in Re Blagdon Cemetery  Fam 299, remains should only be exhumed in exceptional circumstances. The petitioners could not argue that there had been a mistake in dealing with their father’s ashes as they and their mother had agreed to interment in the Cemetery. A change of mind as to a place of burial did not amount to an exceptional circumstance. The proposal to scatter the ashes was an additional reason for refusing a faculty, although the Chancellor noted “there seems to be a divergence in approach amongst Chancellors as to whether it is appropriate to grant a faculty to enable ashes to be scattered following exhumation from consecrated land . [Re Aycliffe West Cemetery  ECC Dur 3] [Top of section] [Top of post]
Re East Finchley Cemetery  ECC Lon 1 The Petitioners sought a faculty for the exhumation of the mortal remains of his grandparents and great aunt who died respectively in 1921, 1951, and 1954, and were buried in East Finchley Cemetery shortly after each of their deaths . It was proposed that their remains would be cremated and scattered in Golders Green Cemetery. The Chancellor noted that the petition was not in proper order as, in the case of exhumations not forming part of a churchyard re-ordering scheme, a separate faculty is required in the case of each application for an exhumation. However, he decided to waive that particular requirement since: there are no material differences in the consideration of the application in respect of each of the deceased; and because he also concluded that each of the applications must fail as being far outside of the exceptions to the general and important rule relating to the finality of Christian burial set out in the leading case of Re Blagdon Cemetery  Fam 299.  [Re East Finchley Cemetery  ECC Lon 1] [Top of section] [Top of post]
Re St. Peter Ireleth  ECC Car 1 The petitioner sought a faculty authorising the exhumation of her late husband’s ashes from an unnumbered plot in the churchyard of St. Peter’s Church, Ireleth, and reburial in the same churchyard; both the plots are consecrated ground. Her case is that it is inconvenient and unsafe for her to visit her late husband’s grave since access to the current grave was inconvenient and unsafe, being impeded by scaffolding poles; the overall effect of the scaffolding is to constrict the width of the path leading to the grave. The scaffolding has had been in position since 2019, due to problems with the church roof, which could only be resolved as and when the church could raise the money to pay for the work [6,7,16]. The petition is also unanimously supported by the Parochial Church Council .
In his determination, the Deputy Chancellor identified three factors that must be specifically considered in this case: (a) the difficulties presently encountered by the Petitioner in visiting her late husband’s grave; (b) whether it is safe for her to do so; and (c) the length of time for which it is currently anticipated those matters will continue to present the Petitioner with problems. He noted that on the balance of probabilities, is that she has not demonstrated that it is unsafe, as opposed to inconvenient and difficult . On the contrary, it seems to me that there are reasonably good grounds to expect that both the church building and the scaffolding around it are in a safe condition . Whilst the PCC was unable to give a precise answer on the length of time it would be left in position, it was clear that that the PCC does not intend the scaffolding to stay permanently in place. The intention is to remove it once repairs have been done and when it is no longer necessary . In conclusion, he stated:
“ I do not find that there are exceptional circumstances that warrant exhumation. While I sympathise with [the Petitioner] for the problems she presently encounters in visiting her late husband’s grave, I cannot conclude on the evidence I have seen that it is unsafe for her to do so, or that her difficulties are likely to be long lasting. The evidence I have read indicates that the scaffolding is only intended to be a temporary expedient until the church roof is made safe.
The Deputy Chancellor gave the further Direction:
“. that a copy of this Judgment should be sent to the PCC and that this paragraph and paragraphs 17 to 21, above, are specifically drawn to its attention. I expect that the PCC will wish to ensure, by promptly (a) taking appropriate professional advice and (b) obtaining the express assurances of Cumbria Design Scaffolding, that it is currently safe (and will, until the scaffolding is removed, remain safe) for [the Petitioner] to come and go from her late husband’s grave. I would also expect the PCC to share the substance of that advice and those assurances with [her] as soon as possible after they are received.
Re Heaton Cemetery  ECC New 1 This is a petition by Mr Graeme Gardner, brought with the consent of Mr Mark Lamb, the Bereavement Services manager of Newcastle City Council, the burial authority, seeking permission move the cremated remains of his late mother, Mrs Barbara Gardner, from the consecrated section of Heaton Cemetery and re-inter them nearby in another plot within the consecrated section . The present burial plot is problematic in that its proximity to the location of the skips for waste and rubbish accumulated rom the cemetery; the area of the grave has itself become the subject of fly tipping .
Whilst the petitioner letter acknowledges that the authority is continuing to seek solutions, none is immediately to hand and, such is the distress that Mr Lamb accepts is being caused to Raymond Gardner, he supports the application for Mrs Gardner’s remains, together with the headstone and border kerbs to be moved to another location .
In his decision, the Chancellor noted that there had been no delay in seeking to bring this before the court: the family has reasonably engaged with the burial authority in the hope that a less drastic solution could be found; there had been full
compliance with all other formalities, including the provision of family consents, necessary information being provided by the undertaker and the consent of the burial authority .
The Chancellor was satisfied that photographs of the area indicated “a wholly disrespectful and disgraceful state of affairs.” He therefore granted a faculty for exhumation and reinterment. The family has paid for the petition. The Registrar agreed to waive the Registry’s costs, and ‘as a gesture of goodwill’, the Bereavement Services team, was prepared to meet only 50% of the costs of the exhumation but none of the cost associated with moving the memorial or the making the application. [Re Heaton Cemetery  ECC New 1] [Top of section] [Top of post]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.