Review of the ecclesiastical court judgments during June 2022 (II)
Fourteen consistory court judgments were circulated in June 2022, and the nine
featured in this first part of the round-up relate to Reordering, extensions and other building works, including Other building works, including re-roofing and Removal and replacement of pews. This second part reviews the remaining judgments which concern Heating, Church Treasures/Sale of Paintings/Loans/Memorials, Exhumation, and Churchyards and burials. It 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 
Re St. Mary the Virgin Dedham [2022] ECC Chd 2 The church’s oil-fired heating boiler was installed 35 years ago, and its replacement had been under consideration since 2008. There had been a recent major failure to the heating chamber and the parts required for repair were no longer available [1]. The churchwardens sought permission for its replacement with a new gas boiler. Although the DAC stated that it did not object to the petition, it did not recommended the proposals for approval by the Court; the Notification of Advice “express[ed] its disappointment that the parish [had] not opted for the more environmentally friendly option of under pew heating, a system that would take full account of the General Synod’s target of the Church of England achieving carbon neutrality by 2030” [2].
Noting the General Synod 2021 commitment to “net zero” emissions by 2030, the Chancellor cited the “Net Zero Roadmap“, the subsequent CBC Heating Principles on moving from fossil-fuel based heating systems, and other CofE Advice and Guidance [5]. She commented:
“[6]. The need to take into account environmental considerations when installing a new or replacement heating system has also been the subject of a number of recent judgments in other Dioceses: see the judgments of Petchey Ch. in Re St. Mark Mitcham [2020] ECC Swk 5 and Re St. Mary Oxted [2021] ECC Swk 1, of Humphreys Ch. in Re St. Thomas & St. Luke Dudley [2021] E CC Wor 2, and of Eyre Ch. in Re St. Peter Walsall [2021] ECC Lic 4. The approach adopted to the issue in those judgments is not, as I discuss below, exactly the same.
Agreeing with Eyre Ch. in Walsall, Chancellor Philippa Hopkins Q.C., noted that the starting point was “there is no question but that St. Mary’s needs a new heating system that works” [7]. She then went through the report of the DAC Heating Advisor point-by-point, as to his viewed on the various options that might be available [8 (a) to (h)]. However, she noted that the Heating Advisor “does not appear to have felt able to make a final recommendation. Instead, he indicated that, ‘[q]uotations should be sought on a no-obligation basis for whichever options the PCC wishes to pursue or compare and a phased approach may be viable and acceptable to the DAC’”.
In their Statement of Need, the Petitioners address each of the points raised [10], upon which they propose the installation of two gas fired commercial boilers [12]m against which the Chancellor said:
“[12]. I could thus see that the Petitioners had considered a number of options, and that they had some awareness of the environmental issues that might arise. But it was not clear to me whether they had specifically considered the impact of the Net Zero Roadmap, nor the CBC Guidance…
[13]. I was especially concerned, in view of the remarks of the DAC, that insufficient consideration had been given to the option of under-pew heaters powered by electricity.
and directed a number of additional questions to the Petitioners, by a letter from the Registrar to the Petitioners [14 (a) to (f)] and also asked for the views of the Archdeacon of Colchester, the Deanery in which Dedham is situated, on the Petition [15]. He indicated that the Petitioners were familiar with and had considered both the Net Zero Roadmap and the CBC Guidance, and that they recognised that those documents clearly promote a preference for the use of zero carbon solutions , and noted that:
“[16]. We fully support the aims and ambitions of both documents, but I am sure you will appreciate that it is far easier to put these aims into a paper than it is to implement in practice – especially in a Grade I listed church dating back to its dedication in 1492” and which is in an Area of Outstanding Natural Beauty”.
With regard to more environmentally friendly heating options, the Archdeacon provided further information [17 (a) to (f)] and gave a justification of the decision to proceed with a gas boiler [18]. In comparing the views of the Chancellor in Mitcham and Oxted, with those in Dudley, Chancellor Hopkins stated her preference for those of Humphries Ch., for the reasons that she gives in her judgment at [39]-[43]. However, she found herself in the same position as Eyre Ch. in Dudley since she did not need to decide to follow one approach rather than the other:
“[22] That is because I have concluded both that (a) the Petitioners have in fact considered, with some care, the implications of their proposal for the carbon neutral agenda (in view of the exchanges which I have detailed above); and (b) on the basis of the materials before me, there are proper grounds for concluding that the gas heating system proposed by the Petitioners is in any event the most appropriate system in the circumstances”.
In granting a faculty, the Chancellor made a condition inter alia, that so far as was practicable, gas supplied under a green tariff was to be used for the new system. [Re St. Mary the Virgin Dedham [2022] ECC Chd 2] [Post] [Top of section] [Top of post]
See also: Re St. Leonard Southoe, supra
Church Treasures/Sale of Paintings/Loans/Memorials
Re Jesus College Cambridge [2022] ECC Ely 5 Hodge Dep Ch addressed the application by the parties opponent for their costs arising from his judgment in Re Jesus College Cambridge [2022] ECC Ely 2, in which he had dismissed the petition by the College for a faculty to remove the memorial to Tobias Rustat from the west wall of the College Chapel. He was satisfied that the College had not acted unreasonably in bringing the petition [23]; however, though he had rejected the application for costs he did not consider that it had been unreasonable for the parties opponent to make their applications. He therefore decided that the costs of those applications should fall to be treated as part of the costs of the petition generally [25].
He ordered that the College, as petitioner, was to be responsible for all the court fees incurred in the petition, to be assessed by the Registrar, including all additional fees incurred in the interim and the final hearings as well as the judgment fees, as specified in the applicable Ecclesiastical Judges, Legal Officers and Others (Fees) Order. Otherwise, there was to be no order as to the costs of the faculty proceedings [26]. [Re Jesus College Cambridge [2022] ECC Ely 5] [Top of section] [Top of post]
Re Benton Cemetery [2022] ECC New 2 The operations manager of North Tyneside Council’s Bereavement Services sought a petition to exhume and move the interred remains of the late Muriel Isabel Lounds from a plot within the consecrated section of Benton Cemetery and re-inter them nearby in another plot within the consecrated section [1]. The written consent of Mr Laurance Lounds, Mrs Lounds’ widower, was supplied to the court [2].
Owing to an administrative error on the part of the burial authority, cremated remains had not been buried in the grave purchased by the deceased, but in a grave already containing the cremated remains of a married couple [5]. The mistake was rapidly discovered and on 29 April 2022 (the day following the interment), the petitioner made the application. Within it she notes that the error was due to ‘a chain of human errors by the Authority’s burial team’. Offering a profuse apology for the distress thereby caused, she seeks to right the wrong by this petition as a matter of some urgency [6].
The Chancellor determined that the exceptional circumstances justified the grant of a faculty for exhumation and re-interment. [Re Benton Cemetery [2022] ECC New 2] [Top of section] [Top of post]
Re Michael D. Niles, Deceased [2022] ECC Man 2 The deceased died on 23 January 2022. His burial was delayed for two and a half months, whilst efforts were made to trace his relatives. His body was buried in Middleton Cemetery in April 2022 [1]. His daughter, the Petitioner, resides in Boston Massachusetts and seeks a faculty to exhume the remains, of her father that they be cremated and sent back to the United States of America where she and other relatives reside [2]. The family of the deceased moved from the UK to live in the USA when the deceased was young. For a reason not explained in the judgment, the deceased was deported several years ago to the UK. There were no members of the family in the UK [7].
On hearing of the deceased’s death, his daughter applied for a faculty to have the deceased’s body exhumed and cremated, and for the ashes to be sent for burial in the USA. Applying the test in Re Blagdon Cemetery to the facts of the case, the Chancellor held that there were exceptional circumstances to justify the grant of a faculty. If the family had been aware of the deceased’s death at the time, they would have had his body cremated in the UK and the ashes sent to the USA for burial, believing that this would have been the deceased’s wish [28, 29]. [Re Michael D. Niles, Deceased [2022] ECC Man 2] [Top of section] [Top of post].
- Development of churchyard
- Designation of closed churchyard
- Churchyard Regulations
- Trees
- Environmental Permit
Re Holy Trinity Pleshey [2022] ECC Chd 1 The priest-in-charge and churchwardens sought permission to reuse for burials three specific areas of the churchyard where there were no memorials and no evidence of recent burials [4]. The Parochial Church Council are keen for the churchyard to remain open for burials, as an outward sign of the church’s commitment to the local community. On average, three burials take place in the churchyard each year [2]. However, the local undertakers advised that very little space for burials remained within the part of the churchyard currently “recognised for burials”. At the date of the petition, it was estimated that only five burial plots were left [3].
The Petitioners identified three areas in respect of which permission is sought for to be designated for future burials [5] to [10]. They did not believe that any of Areas 1-3 has previously been used for burials “and it certainly seems that there is no surviving written record which would indicate otherwise”. Further, in 2021, a geophysical survey of Areas 1-3 was conducted which “has identified anomalies that may indicate the presence of sub-surface structures particularly in Area 3.
The Chancellor observed:
“[10]. Accordingly, and even though the Petitioners maintain their view that it is unlikely that any of Areas 1-2 was previously used for burials, it seems to me that that is not a safe assumption. I therefore proceed on the basis that it is at least possible that part or parts of the land in respect of which permission is sought have been used for burials in the past”.
The Chancellor considered that it was appropriate to grant a faculty to allow reburial, rather than have the churchyard closed for burials after the remaining space for five new graves in the currently used part of the churchyard had been filled. As it appeared that the risk of encountering human remains was greatest in area 3, the Chancellor directed that areas 1 and 2 should be used first. The Chancellor added a number of other conditions to the grant of the faculty. [Re Holy Trinity Pleshey [2022] ECC Chd 1] [Top of section] [Top of post]
Designation of closed churchyard
Re All Saints Darton [2022] ECC Lee 2 The petitioner wished to introduce a
ledger stone or “cremation plaque” over the place where her husband’s cremated remains are interred [2]. In addition she seeks the inclusion of two flower holders, in the upper right and left corners of the stone, and an additional hole for a ‘solar stick’. It is intended that the memorial be laid flat on the ground. It will measure 18” by 18” [4]. She also wished to have an inscription 15 lines long [3].
The incumbent and PCC objected to the proposal; it was customary to allow only one flower holder, no solar sticks, and an inscription giving dates and a brief biblical quote or words of comfort [5]. Following correspondence, the Petitioner amended her proposal to include only one flower holder, no solar stick and an inscription 10 lines long. The Chancellor observed;
“[15]. The public nature of the Church of England as an established church requires it to minister to all parishioners equally and without discrimination. In this instance the parish has developed a policy in respect of tablets to mark the interment of cremated remains that requires a common approach to the size and type of stone, and to the inscription that may appear on it. Justice dictates that like cases be treated alike.
Where a policy has been conscientiously applied in the past, it would be unjust for it to be overridden save for good cause or exceptional reason. I can find no good cause or exceptional reason in the case of Mrs Morgan…A merits-based approach includes the consideration of wider pastoral concerns which might arise from the grant or refusal of a faculty.
[16]. I consider the practice and policy of this parish to be reasonable and justified. It appears to have been routinely and fairly applied in the past. A parochial policy does not fetter the discretion of the incumbent, still less the Chancellor.
To accommodate and support the PCC’s policy, the Chancellor settled an inscription five lines long, which he would find acceptable [17]. He allowed the petitioner 28 days in which to decide whether to accept the inscription, in which case a faculty would be granted. If the petitioner did not accept the inscription, the petition would be dismissed. [Re All Saints Darton [2022] ECC Lee 2] [Top of section] [Top of post]
Re St. Andrew Great Staughton [2022] ECC Ely 3 The Petitioner made a further proposal in respect of the headstone having taken account of the Chancellor’s earlier judgment Re St. Andrew Great Staughton [2021] ECC Ely 3 and subsequent subsequent conversation with the Registry [1]. The Chancellor agreed to the design of a memorial stone including an etching of two sailboards against a background of the sea, but refused to permit a black stone. Reversing an early decision, he allowed the use of South African grey or Rustenburg grey stone [5]. [Re St. Andrew Great Staughton [2022] ECC Ely 3] [Top of section] [Top of post]
Re All Saints Isley Walton [2022] ECC Lei 1 The subject matter of the petition was the felling of two mature lime trees in the churchyard. In 2020, a local authority tree expert had recommended that one tree should be felled and the other pollarded. The Parochial Church Council decided that both trees should be felled and replaced with yews. But subsequently, one tree was felled and the other pollarded. A formal complaint was made that the Archdeacon had erroneously allowed the felling of the first tree pursuant to List B of the Faculty Jurisdiction Rules. The second tree was later felled. On the evidence, the Chancellor decided that the first tree had been in rapid decline due to decay, that it was appropriate for it to be removed, and it had been appropriate for the Archdeacon to deal with the matter under List B; the second tree was dying and/or dangerous, and there would have been a case for the Archdeacon granting a List B consent, failing which felling of the second tree should have been the subject of a faculty petition. The Chancellor granted a retrospective faculty for the removal of the trees, subject to conditions. [Re All Saints Isley Walton [2022] ECC Lei 1] [Top of section] [Top of post]
Ecclesiastical Parish of the Offchurch Group: environmental permit application advertisement, CV33 9AS. The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016, (22 June 2022). Application number: EPR/VB3690EQ/A001; Grid reference: SP 35808 65664. This is for the discharge of 0.15 cubic metres per day to groundwater via a trench arch system.
See Re St. Lawrence Eyam. supra.
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: Becconsall Old Church Churchyard, Hesketh Bank, Preston, Lancashire; Holy Trinity Churchyard, Thorpe Hesley, Rotherham, Yorkshire; St James’s Churchyard, Biddenham, Bedfordshire; St John the Baptist Church Churchyard, Great Gaddesden, Hemel Hempstead, Hertfordshire; All Saints Parish Church Churchyard, Headley, Bordon, Hampshire.
- Burial Act 1853 (Final): Order prohibiting further 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; St Luke’s Church Churchyard, Duston, Northampton, Northamptonshire.
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 are not yet been available for which only “Form 8” is available.
Recent summaries of specific issues that have been considered in the consistory courts include:
Church Treasures/Sale of Paintings &c
- Commission on Racial Justice: First Biannual Report, (28 June 2022).
- Racial Justice First Report: consistory courts (I), (29 June 2022).
Exhumation
-
Exhumation and judicial review in Northern Ireland: McGuigan, (3 June 2022).
General/Miscellaneous
- Flags and flagpoles: Church of England, 10 June 2022.
- Flags and flagpoles: consistory court considerations, 24 June 2022.
- Dominic Grieve to lead Christ Church Governance Review, 16 June 2022.
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.