Ecclesiastical court judgments – May

Review of the ecclesiastical court judgments during May 2022

Ten consistory court judgments were circulated in May, and those featured in this round-up relate to:

This summary also includes CDM Decisions and Safeguarding, Privy Council Business,  and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.


Reordering, extensions and other building works

 

Substantial reordering

Re St. Werburgh Chorlton-cum-Hardy [2022] ECC Man 1  This unlisted church was built between 1899 and 1902 and designed by R B Preston, the then Diocesan Surveyor. “His designs were very typical of the late Victorian and early Edwardian era and were typically inspired by late gothic detailing. His churches were often built to limited budgets, making the most of simple and cheap materials” [1]. The Statement of Significance records that the most significant historical contents of St. Werburgh are: the carved choir stalls, the carved oak pulpit and the carved font in Caen stone, all described as of moderate significance; the churchwardens` seats and screens, described as of low to moderate significance; and the carved oak Chancel screen, a memorial to commemorate those who died in the First World War, described as of high significance [2].

Even before the pandemic, the church was in decline, and in 2021 it was designated by the Diocese as a “Resource Church”, with a view to developing outreach and growth [6];  this approach was given strong support by the Church Commissioners in 2020 who were keen to provide funding [7, 12]. Over the past two years there had been an increase in the worshipping congregation. The church now wished to carry out major reordering, in order to make the church more welcoming and more suited to contemporary worship, which would include the reuse of the chancel as an entrance and welcome area, an altar at the west end and the pews being replaced with upholstered, stackable chairs.

The proposed re-ordering had the unanimous support of the PCC on 29 November 2021 “on the understanding that the Rector would discuss the plans with the wider Church congregation” [9]. The DAC recommended such works for approval by this court and also confirmed its opinion that these were unlikely to affect the character of the Church as a building of special architectural or historic interest; it therefore did not recommend consultation with any other body [13, 16]. There was one local letter of objection, although the objector did not become a Party Opponent [17 to 21].

As an unlisted church, it was necessary for the Chancellor to consider the simple question as to whether the Petitioners had persuaded him on a balance of probabilities that he should grant a faculty [24]. The burden of proof lies on the Petitioners who propose a change to the status quo and they must satisfy him that it is appropriate to grant a faculty [22].

At the request of the Chancellor, the Rector made a further submission to address the issues raised by the objector [28], which the court considered separately:

  • the East end altar, which the Rector indicated that the carved oak memorial screen would remain in its current location [29,30];
  • the font and canopy,  a portable font rather than a fixed one because that is more in keeping with their style of worship, the current font was no longer required [31 to 33]. The Chancellor stated that only because the font is chipped, it may be removed and destroyed. Had the position been otherwise, he would have directed that it should be located in some convenient place [41];
  • the pews in the nave [34, 35]. The Chancellor stated that the pews may be removed in their entirety and replaced with upholstered stackable chairs on condition that all reasonable efforts are made to sell the pews, preferably to church members, but if this proves not to be possible, they may be disposed of in such manner as the Rector thinks appropriate [42].

The Chancellor granted the faculty sought subject to the condition referred to in paragraph 39, viz. all reasonable efforts shall be made to ensure that the east end altar and the choir stalls are offered to other churches. [Re St. Werburgh Chorlton-cum-Hardy [2022] ECC Man 1] [Top of section] [Top]

Other building works, including re-roofing

Re St. Luke Birmingham [2021] ECC Bir 1 The Petitioners sought to increase the size of the stage upon which the altar was situated; to install a new screen for the projector; and to move the Cross from its present position to the left side of the church, as it would otherwise be partially blocked by the new screen [2]. There was one objection to the proposed repositioning of the Cross [3]. The objector suggested an alternative position, which was agreed by the Parish; consequently,  the Petition was effectively unopposed, and the D A C having considered the matter in detail, supported the proposals and recommend that the Faculty be granted as it was presently sought [6].

Applying the principles in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor found that the proposals, if implemented, would not result in harm to the significance of the Church as a building of special architectural or historic interest [8].  Given that the ordinary presumption in faculty proceedings is “in favour of things as they stand”, the Chancellor acknowledged that the improvements that the scheme envisages to worship and the furtherance of these improvements in promoting the Church’s mission in his judgement rebutted such a presumption [8]. The Chancellor granted a faculty for the Cross to be moved along the wall towards the stage opposite the entrance door, so that it would be viewed clearly when entering the worship area. [Re St. Luke Birmingham [2021] ECC Bir 1] [Top of section] [Top of post]

Re St. John the Baptist Tisbury [2022] ECC Sal 1 The Churchwarden petitioned for a faculty permitting various masonry repairs to the chancel East window (‘the Clutterbuck window’) and the replacement of the existing East window glass with a new window designed by Thomas Denny (‘the Denny window’). The Clutterbuck window is a memorial, and it is intended that the Denny window would also be a memorial [1]. The proposed masonry repairs are urgent, uncontentious and necessary; however, the proposed replacement of the East window was more contentious [2].

The catalyst for the proposal was the serious deterioration in the East window tracery caused by associated ironwork. The repair of this stonework requires the removal of the glass. Nevertheless, this current pressing need has emerged in the context of the deterioration of the condition of the Clutterbuck window which has long prompted the parish to consider changes in relation to the window itself. Upon a simple inspection of the window it is apparent that a substantial. After careful investigation into the condition and provenance of the Clutterbuck window, the parish decided that the preferred means of remedying these issues is the replacement of the East window with the Denny window, with the retention of parts of the Clutterbuck window in other parts of the church [4].

Though it was not part of the present petition, it was proposed that the better parts of the Clutterbuck window should be incorporated into a design in the easternmost window of the north aisle.

Applying the principles in Re St. Alkmund, Duffield [2013] Fam 158

Such was the concern about the loss of this example of Clutterbuck’s work that Historic England requested that this petition was not determined before it was able to commission an investigation and report into the importance of this window in the context of Clutterbuck’s surviving glass. This request was supported by the Victorian Society. The resulting report indicated that there are 72 Clutterbuck windows known to still be in existence, with 68 of them still in situ. Six Clutterbuck windows are in Wiltshire, including the one at Tisbury church. This has particular interest as a rare, or possibly unique, example of a Clutterbuck window containing notable amounts of ‘grisaille’ work (non figurative monochrome painting on clear glass), although  much of that work has deteriorated significantly [8].

The Chancellor accepted the evidence of all who had been concerned with the progress of the proposals accepted that the removal of the Clutterbuck window would result in harm to the significance of the building [9], but she agreed with the advice of Historic England that this proposal would cause significant but not substantial harm to the importance of this listed building [13], but “nevertheless, there is some real historic harm caused to the significance of the building by its loss” [14]. However, “[t]he Duffield guidelines make clear that it is the harm to the significance of the building as a whole that [the Chancellor] must consider under guideline number 3”, and she concluded that concluded that the harm caused to the significance of the church would be, to use the words of Historic England, significant, but not substantial [16]. she said:

“I have emphasized above the importance of the principal East window in the life and liturgy of this building. Given the impact of the poor condition of the Clutterbuck window and the substantial loss of or damage to the original Clutterbuck painting on that importance, I consider that the justification provided by the Petitioner for the replacement of the Clutterbuck window with the Denny window to be clear and convincing (to use the language of Duffield).

The Chancellor granted a faculty, subject to a condition inter alia that the incumbent and churchwarden should within 30 months apply for a faculty for the retention of parts of the Clutterbuck window in the easternmost window of the north aisle [19]. [Re St. John the Baptist Tisbury [2022] ECC Sal 1] [Top of section] [Top of post]

Re St. Helen Burghwallis [2022] ECC She 1  The Petitioners sought permission to renew and repair the roof the Grade I Church, following its partial collapse in October 2020. The proposed work included “renewing, repairing and replacing all the roof as a whole, reusing 70% of the existing sound tiles [which] is more cost effective than renewing piecemeal at different dates”. The incorporation of insulation in the rebuild would also reduce future heating running costs [1].

The Chancellor granted a faculty, subject to conditions that in accordance with the recommendation of the Diocesan Advisory Committee, the works should be subject to a monitoring process both before and after the works take place [3], and in accordance with the advice of Historic England, the insulation should be installed without causing harm to the roof timbers; the gable apex crosses should be retained and, if necessary, restored; and any mortar to be used should match the existing historic mortar [3].

In conclusion, she commented:

“[4]. These are works of essential maintenance and renewal and therefore uncontroversial in a legal sense, they are necessary and will not result in harm to the significance of the church as a building of special architectural or historic interest; on the contrary, if they are not undertaken harm will result.

The plans to conserve, repair and reuse the roof tiles and the acceptance of the principle that the chancel and nave apex crosses should be retained and repaired rather than replaced if possible are attractive and proper features of the proposed works. The inclusion of insulation if that can be done in sympathy with the ancient structure and decorations is also a positive feature of these plans.”

[Re St. Helen Burghwallis [2022] ECC She 1] [Top of section] [Top of post]

Removal and replacement of pews

Re St. Andrew Thursford [2022] ECC Nor 1 The Petitioners sought to remove 25 pews to provide the space and flexibility needed to equip the church for community events; they also sought to create a new stained glass window in the Chad chapel, re-glazing with stained-glass and repairing the Chad chapel East window “with the aim of reflecting Thursford as it is today and enhancing the chapel as a pleasant meeting place” [1]. Notwithstanding concerns from amenity societies about the design of the proposed new window, and concerns of the Victorian Society as to the number of pews to be removed, the Chancellor granted a faculty.

[Note: In addition to the clarification on the use of the phrase “the lead designer” which uses “lead” as in the chemical element not as in principal designer, the undefined term “cames” refers to “lead strips joining pieces of window glass” [Pevsner]. [Re St. Andrew Thursford [2022] ECC Nor 1] [Top of section] [Top of post]

Re St. Gregory Sudbury [2022] ECC SEI 2 The Worshipful Justin Gau commenced his judgment with advice to the Petitioners, which is likely to be of general applicability:

“[1]. This case demonstrates the need for Petitioners to supply the fullest possible information when they submit their Petitions. In this instance the Petitioners chose only to send a very limited amount of their research. This was due to the fact that the petitioner didn’t feel the need to burden me with their research. I emphasize as I have in other Judgments that it is imperative that I have all the relevant documentation. I would prefer to be overburdened than under. One of the great strengths of the electronic application system is that a very large amount of documentation can be uploaded and read”.

The Petitioners sought permission to introduce 15 quartz halogen heaters into the church and also replace the windows in the ringing chamber [2]. The application for the heaters was refused by the Chancellor on the basis of objections raised by the Church Building Council (CBC) [3]. Concern was expressed by the parish that account had not been taken of their considerable research with regard to the proposed heating, “but they had chosen not to send it with their application because they were unaware that it should be included in their Statement of Need” [4].

However, at a subsequent meeting, attended by representatives of the PCC, the Diocesan Advisory Committee and the CBC, additional information was provided and as a consequence, the CBC confirmed that it was content to support the proposed heating [6]. Taking into account the Duffield questions, the Chancellor was satisfied that there was a clear justification for carrying out the proposals, which would outweigh any harm caused by the introduction of the heaters. He granted a faculty for the heaters and also for the replacement windows for the ringing chamber [8,9].

 [Re St. Gregory Sudbury [2022] ECC SEI 2] [Top of section] [Top of post]

Heating


Exhumation

Family graves 

Re St. James West Dean [2022] ECC Glo 1 The petitioner wished to exhume the ashes of her late husband and reinter them in the grave of her parents within the same churchyard. The Petitioner felt that being informed of the changes to the location of the burial of the ashes and the style of the memorial on the day of the funeral had made the day even more upsetting [6]

Summarizing the facts of the case, the Chancellor stated:

“[13]. It is clear to me that there were a combination of circumstances that led to the Petitioner and her family being originally misinformed, then correctly informed, over the appropriate location for the burial of her husband’s ashes [ in a newly created garden of remembrance], and for her then seeking to alter the location almost immediately afterwards. The current location of the burial in the new garden of remembrance is an appropriate location for burial of ashes. However, in my view, the creation of a family grave is also an entirely appropriate location for the burial of the ashes.

[14]. Therefore, I satisfied that special circumstances exist and I am prepared to grant a faculty for the exhumation of the ashes [of the deceased] and for their immediate reburial [in the family grave].”

 [Re St. James West Dean [2022] ECC Glo 1] [Top of section] [Top of post]


Churchyards and burials

Designation of closed churchyard

See Privy Council Business.

 

Churchyard Regulations

Re St. Giles Sheldon [2022] ECC Bir 1 The petitioner, acting as executor for her brother, wished his remains to be buried in their mother’s grave and for the existing memorial to their mother to be replaced with a memorial to mother and son [1]. The proposed new headstone is consistent with the requirements of the Diocesan Churchyard Memorial Regulations; however, it was necessary to deal with the Petition as a contested Petition because the proposed new headstone deletes part of the original wording on the existing headstone in a way that the Chancellor judged to be significant, and also because one of the Deceased’s siblings objected to the change [2].

Citing Re St Mary the Virgin Churchyard, Burghfield [2011] Oxford Const Ct, Bursell Ch, at at paragraph 4, the Chancellor stated:

“Under Church Law, a grave is not owned by the deceased or by his or her relatives whether before or after the burial. Indeed, there is no right even to erect a monument over a grave without the permission of the diocesan chancellor, although this permission is usually given through an authority delegated to the incumbent.

Accordingly, the interment of any ashes in a grave requires permission as does the erection of and, by extension, any alteration to any monument which includes a headstone. As…the incumbent of Saint Giles, does not have delegated authority to deal with disputed petitions, the matter falls to the Chancellor to decide”.

Summarizing the evidence, he said:

“[8]. As I have pointed out, nobody has a right to ownership of a grave and nobody has a right to inscriptions on a headstone unless the proper Authority gives consent. In this case the granting of the Petition will perpetuate the rift between siblings. The right to alter the inscription on the stone would reside with the person who was responsible for putting it there. He, alas, is now dead”.

[…]

Whatever the true situation, it is clear that the person responsible for putting the inscription on the stone intended the words to be as he had decided them. In my judgement unless all the family agree, it could never be right to undo his decided wishes and even if the family agree I would have considerable reservations about allowing the altering of the wording merely because family members are unhappy with it”.

The Chancellor therefore refused to grant a faculty. [Re St. Giles Sheldon [2022] ECC Bir 1] [Top of section] [Top of post]

Reservation of grave space

Re St. Mary Thame [2022] ECC Oxf 2 In his judgment, the Worshipful Chancellor David Hodge QC sought to establish points of principle in relation to the reservation of burial plots [33], an area in which the increasing number of petitions 2021 has continued into 2022 [11]. A separate post addresses these points of principle which were examined in [12] to [27]; v infra; the court’s consideration of the petition in summarized in the review from Ecclesiastical Law Society, which is reproduced below.

“The petitioner wished to reserve a double grave for herself and her partner. The petitioner had been resident in the parish until 2013, the remains of her father and stillborn child were buried in the churchyard, and all her immediate family still lived in the area. The normal period allowed for reservation of a grave in the diocese was 25 years. Evidence suggested that there was room for further burials only for a further 7 to 10 years. The Chancellor granted a faculty, but limited it to 10 years, giving permission to the petitioner to apply for an extension within 6 months of the expiry of the 10 years. The judgment contains a review of decisions relating to grave reservations by other Chancellors, including cases where Parochial Church Councils had adopted policies of not supporting grave reservations”. [Re St. Mary Thame [2022] ECC Oxf 2] [Post] [Top of section] [Top of post]

Trees

Re St. James Southbroom [2022] ECC Sal 2 The Vicar and Churchwardens wished to fell twelve hornbeam trees lining the path to the south porch of the church. The trees were said to have outgrown their situation, resulting in the area being very dark, the grass beneath them being affected and the pathway becoming slippery. There were several written objections. The diocesan trees advisor and the local authority advised that the trees had grown too large for their setting. The Chancellor determined that the benefits of the proposal would outweigh the loss of amenity and she accordingly granted a faculty. [Re St. James Southbroom [2022] ECC Sal 2] [Top of section] [Top of post]


Organs

 

 

 

 

 

[2021]  judgments] [2020 judgments] [2019 judgments] [2018 judgments] [2017 judgments] [2015 Judgments] [2014 Judgments] [Top]


Fonts

 

[2021 judgments] [2020 judgments] [2019 judgments] [2018 judgments] [2017 judgments] [2016 Judgments] [2015 Judgments] [Top]


Privy Council Business

11 May 2022

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: All Saints Church Churchyard, Cadney, Brigg, Lincolnshire; St Paul’s Churchyard, Lindale and Newton in Cartmel, Lindale, Grange over Sands, Cumbria; and St Michael’s Churchyard, Holbrook, Derbyshire.
  • Burial Act 1853 (Final) Order) prohibiting further burials in: St Michael and All Angels Old Churchyard, Loddiswell, Devon.

CDM Decisions and Safeguarding

William Scott Farrell review: Publication of independent overview report. The independent lessons learnt review of the recruitment and appointment of William Scott Farrell, who pleaded guilty and was jailed for sexual offences, some of which had children as the victim, has been published today. It can be viewed in full here, and the Terms of Reference here. These offences occurred while he was working at two cathedrals, and the review also looks at the handling of concerns raised at a third cathedral. (26 May 2022).


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 26 May 2022, but these and the determinations on 24 March 2022 determinations have not yet been published.

The next meeting of the CFCE is on Thursday 21 July 2022.


Other

Diocese of London: Statement regarding police investigation: “… last year, the London Diocesan Fund (LDF) reported a past financial matter to the Police. The LDF has submitted historical information and has been supporting the authorities fully with their ongoing enquiries”.

[The LDF is the legal body that holds and manages the assets of the diocese (as distinct from parishes). It is called the Diocesan Board of Finance in many other dioceses.] (25 May 2022).


Links to other posts

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

Churchyards

General/Miscellaneous

[Top]


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 – May" in Law & Religion UK, 30 May 2022, https://lawandreligionuk.com/2022/05/30/ecclesiastical-court-judgments-may-5/

 

2 thoughts on “Ecclesiastical court judgments – May

  1. Re St James Southbroom [2022] ECC Sal 2.

    Is the churchyard in this case a ‘closed’ churchyard and, if so, why were not the Parish Council involved pursuant to the provisions of s.215 (1) & (2) of the LGA 1972?

    • The judgment is silent on that matter, and the on-line Church Heritage Record 634549 unhelpfully gives no further information. However, it is most likely that the Worshipful Canon Ruth Arlow will have taken the status of the churchyard into consideration in her judgment.

Leave a Reply

Your email address will not be published.