Review of the ecclesiastical court judgments during April 2022 (II)
Twelve consistory court judgments were circulated in April and the six featured in the first part of the round-up all relate to Reordering, extensions and other building works and Exhumation. This second part reviews 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.
- Designation of closed churchyard
- Churchyard Regulations
- Reservation of grave space
- Environmental Permit
Re St. Bartholomew Areley Kings  ECC Wor 2 The petitioner wished to have the ashes of her daughter, who had died in tragic circumstances at the age of 23, interred and a four feet high memorial stone erected in a part of the churchyard where the memorial could be seen from the petitioner’s home [1, 4]. Although there was a churchyard policy that only flat stones should be allowed to mark cremated remains, the proposed location was away from the area where cremated remains were normally interred, and where there were two sarcophagus style tombs, together with various other memorials of differing styles, ages and styles. This is different from the area in the churchyard where most cremated remains are currently buried, in which area the memorials are considerably more uniform . Furthermore, a horizontal memorial would be far less visible to the Petitioner .
The Chancellor concluded:
“ In my judgment the pastoral reasons given are sufficient to justify permission being granted for the erection of the monument described, despite its lack of compliance with the parish policy. I have considered whether it would be out of keeping with other memorials, given the lack of such compliance. Whilst it would be out of keeping if erected in the location where ashes tend to be buried at present, where there are broadly uniform horizontal stones, in the location proposed…there is a large selection of monuments of much larger size …The proposed memorial will not be out of keeping with these memorials. Further, whilst some of the existing memorials are in white or polished stone, most are in a natural pale grey stone, such that the stone proposed in this petition will harmonise.
. There is nothing objectionable in the text proposed to be inscribed upon the monument, nor in the font proposed and I am informed that earlier work by the same stone mason is of high quality and at least one example of his work is in St Bartholomew’s churchyard already. I am therefore content to grant a faculty in the terms of the petition.
Re St. James Bushey  ECC StA 1 The following concise review of the judgment was made by the Ecclesiastical Law Association: “A married couple had died, one of them in 1968 and the other in 1983, and a memorial on their grave bore their names. One of their three children, a daughter, died in 2019 and her husband died in 2020, and their ashes had been interred in the same grave.
The petitioner, the eldest child of the daughter, wished to add a second memorial recording the names of her own parents. The daughter’s surviving two brothers objected, one becoming a party opponent, who was unhappy about his brother-in-law’s ashes having been buried in the grave and his surname being on a memorial on the grave.
The Chancellor granted a faculty, authorising the memorial with the compromise wording suggested by the petitioner, which would give both the married name and maiden name of the daughter, to show the link between her and her parents”. [Re St. James Bushey  ECC StA 1] [Top of section] [Top of post]
Re St. John the Baptist Baginton  ECC Cov 2 The petitioners wished to erect a headstone on the grave of their uncle. The proposed memorial was to be dark grey granite, partly polished, with gold lettering, and bearing an engraved image of a motor cyclist with helmet and goggles on a racing motorcycle bearing the number 60, the number used by the deceased when he took part in motorcycle events, including the Isle of Man TT.
The proposal was considered by the members of the PCC of St John the Baptist, Baginton, and the attending members unanimously voted in favour of the petition . The DAC determined to issue a Does Not Recommend notification of advice certificate, but the Chancellor noted that there appeared to have be a misunderstanding by the members of the DAC, because the petition does not seek italicised lettering and the proposed image is to be engraved, not a photograph . He observed:
“ It could be argued that the proposed engraved image of a goggled, helmeted motorcyclist was ‘an image of the deceased’, which would not be permitted under the churchyard regulations. However, I very much doubt anyone could look at the pencil-sketch from which the engraving would be taken and say ‘that is Jim Oliver’. It is rather a recognition of the fact that the deceased, when younger, often engaged in motorcycle racing …That is an issue that the churchyard regulations would seem to encourage when selecting an appropriate image to commemorate the life of Jim Oliver. In those circumstances I am satisfied that the proposed engraved image should be permitted. [Re St. John the Baptist Baginton  ECC Cov 2] [Top of section] [Top of post]
Re St. Kenelm Romsley  ECC Wor 3 This is one of two separate cases in the Worcester consistory court in which two couples sought an open-ended period of reservation for burial plots “until I die”, the other being Re St Kenelm Romsley  ECC Wor 4, infra. In each, the Chancellor noted that this was not a workable condition for the church, since in the future, the then minister and PCC will not necessarily know whether the petitioner remains alive or has died and other arrangements for burial have been made.
However, there are sufficient spaces left for the use of other parishioners for 25 years at the current rate of usage, and permission was granted for this period of time. If in the future the petitioners wished to continue to reserve this space, an application to extend the period can be made at that time.
Furthermore, the plots were to be physically and discreetly marked on the ground in a manner to be approved by the Incumbent or Minister in charge and the Parochial Church Council. [Re St. Kenelm Romsley  ECC Wor 3] [Top of section] [Top of post]
Parochial Church Council of St Thomas a Becket Church, Lovington, BA7 7PY.
The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016, 26 April 2022. Application number: EPR/WB3791WJ/A001; Grid reference: ST 59690 30826. This is for the discharge of 0.5 cubic metres per day to groundwater at Location via a trench arch system. Comments on the application to be received before 11 May 2022.
Re All Saints Stranton  ECC Dur 4 The PCC sought permission for the restoration and retuning of the church’s eight bells “to ensure that the bells are fit for purpose for the next 150 years”, the estimated cost of which is £75k . The Chancellor explained:
“the proposed work is without controversy, except in relation to the tuning of bell no. 6, the oldest bell. Tuning can only be achieved by shaving off some of the bell’s metal. Because it is believed to predate 1600 it appears in the Church Buildings Council’s list of bells which should be preserved because of their historical importance. The CBC’s Conservation and Repair of Bells and Bellframes Code of Practice (1993) recommends that for historic bells the presumption should be to leave them as found” .
The PCC consulted the diocesan bell advisor, who in turn approached a renowned expert in the musical acoustics of bells and in particular their strike pitch or strike note. The expert suggested there were two options for the retuning of the bells :
- Option 1 would be to retune all the bells except no. 6 bell. This would leave no. 6 in its present condition with no improvement in its sound, but due to the way in which its tuning figures related to the other bells in the ring, it would nonetheless be possible to achieve a significant improvement in the musical qualities of the whole peal.
- Option 2 would be to tune all eight bells – this would, in his view, give the best overall improvement to the sound of the bells rung as a peal.
In accordance with rule 4.6 of the Faculty Jurisdiction Rules, the Durham DAC consulted the Church Buildings Council. In a written response dated 9 November 2021, given under the CBC’s delegated advice policy without visiting the church, the CBC recommended that bell no. 6 was not tuned, “[t]he aim should be to conserve listed bells in as near their original state as possible” . Disappointed by the response from the CBC, the PCC sent a lengthy written submission to the CBC, dated 17 November 2021, asking the CBC to reconsider its recommendation .
The CBC did not respond to the PCC’s further submissions; consequently, the Chancellor directed that it should send to the Court written representations in response to the PCC’s submission. The CBC duly responded on 23 March 2022, and “[b]y its answer, it became clear that the CBC’s advice against retuning was based principally on maintaining the sound of the bell, so that there was an aural link to the past” .
The Chancellor addressed the differing views of the DAC and the CBC on the basis of the questions in Re St. Alkmund, Duffield  Fam 158 as developed by the Court of Arches in Re St. John the Baptist Penshurst  Court of Arches (Rochester). He concluded that the harm would be slight:
“. This is a bell which has already been tuned. It has already had metal shaved from it in 1907. The sound it makes today is not the sound that was heard in 1600 – that sound has already been lost and cannot be restored. Retuning the bell again in 2022 will affect the sound of the bell only as it has sounded since 1907. Furthermore, the report of John Taylor and Co, having analysed the degree of retuning needed now, concluded that only a very small amount of machining is required.”
“. … However, when tuning has relatively recently taken place (near the turn of the twentieth century, compared with the bell’s origins going back to the sixteenth century), the argument against retuning weakens – we hear the bell today as it has sounded since 1907, not its sixteenth century sound”.
. The conclusion of the CBC in its advice dated 23 March that “The appeal for permission for tuning from the parish appears to have been made on the basis that the company who would tune the bell deemed it necessary and not the parishioners or bellringers” is mistaken. There is ample evidence before me that the PCC and the bellringers are The evidence was that the 6th bell had already had modifications made to it in 1907, and had been badly retuned at that time; also, the retuning would involve the shaving of only a minimal amount of metal from the inner surface of the bell”.
“. The presumption here against retuning bell no. 6 is rebutted on the evidence before me. Any harm caused by retuning this sixteenth century bell (which does not sound as it did when originally cast, and has not so sounded since 1907) is slight, and is outweighed by the benefits to the church and local community.”
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St James the Great Churchyard, Idridgehay and Alton Parish, Belper, Derbyshire; St Mary the Virgin Church Churchyard, Higher Brixham, Devon; St Philip & St James Churchyard, Markfield Road, Groby, Leicester, Leicestershire; St Dunstan’s Cheam Churchyard, Cheam, Sutton, Surrey; St Barnabas Churchyard, Ranskill, Nottinghamshire; St Mark’s Lower Churchyard, Longwood, Huddersfield, West Yorkshire; and St Luke’s Church Churchyard, Duston, Northampton, Northamptonshire.
- Burial Act 1853 (Final): Order prohibiting further burials in: St Cyr’s Church Churchyard, Stonehouse, Gloucestershire (Part closure); Churchyard of St Luke’s, Matfield, Kent; St Mary Magdalene Churchyard, Bildeston, Suffolk; St Peter and St Paul Rustington Parish Churchyard, Rustington, West Sussex; and St Peter Churchyard, Blackley, Manchester.
Diocese of Oxford: Safeguarding case review: Revd Michael Hall, Tylers Green. “The Diocese of Oxford has commissioned a safeguarding case review into allegations of spiritual abuse connected with St Margaret’s, Tylers Green, High Wycombe between 1981 and 2000…The members of the review team believe that Revd Hall’s behaviour would, if it occurred today, be described as spiritual abuse which is now understood to include coercion and control, manipulation and pressuring of individuals, through the misuse of religious texts and scripture and providing a ‘divine’ rationale for behaviour. Statements provided to the diocese during the course of the investigation also suggest adult sexual activity between some members of the congregation took place during the same period, which was possibly coercive and, according to survivor accounts, witnessed by children and young people. We have also looked into a further claim of financial abuse involving a significant sum of money.”
- Church in Wales: The Right Reverend June Osborne – Dismissal of complaint, April 2022. “Disciplinary action against the Bishop of Llandaff has come to an end following the withdrawal of a complaint against her. The Bishop of Llandaff, June Osborne, was due to appear before the Church in Wales Disciplinary Tribunal following a complaint by the Dean of Llandaff, Gerwyn Capon.Mr Capon has now voluntarily and unconditionally withdrawn his complaint and as a result the case has been dismissed by the President of the Disciplinary Tribunal. The Proctor, the lawyer tasked with presenting the complaint to the Tribunal, told the President that the Dean had “reached a clear and settled decision” to withdraw his complaint and there was “insufficient evidence to satisfy the burden of proof” to the required standard.” [Post].
Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.
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.
The next meeting of the CFCE is on 26 May 2022.
- Ministry Council: Periodic External Review Report St Stephen’s House, November 2021.
Recent summaries of specific issues that have been considered in the consistory courts include:
Church Treasures/Sale of Paintings &c/Memorials
- Rustat Memorial: no appeal on judgment, 12 April 2022.
- Rustat Memorial: reaction by the Archbishop of Canterbury, 13 April 2022.
- Christ Church Oxford: Governance Review, (8 April 2022).
- Bishop of Llandaff: Disciplinary action dismissed, 28 April 2022.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.