Review of the ecclesiastical court judgments during December 2022
Nine consistory court judgments were circulated in December and featured: Reordering, extensions and other building works, Exhumation, and Churchyards and burials. 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.
Re St. Mary the Virgin Primrose Hill  ECC Lon 2 The petition sought permission for the introduction of 150 new upholstered chairs of mixed colours to the Grade II listed church – 65 light blue chairs, 10 pink chairs and 10 lavender chairs. The PCC proposed that if additional money were raised for a further 22 chairs, 11 would be white and 11 would be blue (presumably the light blue) . However, the chairs had already been installed, the petitioners having felt under pressure to install them before an episcopal visit to celebrate the 150th anniversary of the consecration of the church; less convincingly, the petitioners alleged they had relied upon the DAC’s Notification of Advice despite the inclusion of the statement (in bold type) “This advice does not constitute authority for carrying out the works or proposals and a faculty is required” .
The DAC had recommended the proposals for approval by the court and stated that in its opinion, they would not be likely to affect the character of the church as a building of special architectural or historic interest . The Victorian Society did not respond , but the Church Buildings Council commented :
“The proposal for multi-coloured upholstered chairs does not give due regard to the guidance or give a strong reason to depart from it. The Council notes that the parish has considered the colour choices to coordinate with colours in the ceiling of the building, but did not find this compelling, even adding confusion to the careful use of colour in the building”.
Its guidance recommended “high quality, wooden, unupholstered chairs”  and it recommended that a minimum of ten per cent of chairs had arms, a criterion observed in the petition. With regard to the Statement of Needs, Etherington Ch. accepted that the Petitioners had established a need for the chairs and was persuaded that the upholstered chairs are acceptable notwithstanding the CBC’s general guidance, particularly given their intended use . However, in his judgment there was no need as such for chairs to be in a particular colour, which was a matter determined by aesthetic considerations . He stated:
“. The issue here is specifically about a combination of colours amongst the seating: where the majority of the chairs are in one of two muted (and more neutral) colours and where a minority of the chairs are in two more dominant colours: pink/red and lavender/blue.
Applying the Duffield criteria to the red/pink, blue/lavender upholstery, he found that the proposal to have some chairs (10 pink/red and 10 blue/lavender) in these strong colours would result in harm to the significance of the church as a building of special architectural or historical interest; the damage would be at least moderate because it is very distracting to the eye as shown in the photographs presented to the court . He was unable to conclude that there was any objective justification for these more strongly coloured chairs and that therefore they must be removed .
With regard to the muted colours: the white and the light blue. Had they not already been purchased the Chancellor would be likely to have ruled that the chairs had to be one of the two more muted colours rather than both. However,
“. The difference between these chairs and the others is that because of their considerably more muted tones, I regard the harm to the special architectural and historical significance of the church is correspondingly and substantially lower. There is no more justification for having two of the more subdued colours than for the more strikingly coloured ones but, bearing in mind the money already spent on these more neutrally upholstered chairs and the level of harm likely to be occasioned I find the balance by a small but definite margin favours “their retention.
The Chancellor granted a faculty for a maximum of 150 upholstered chairs inside the church, but refused permission for the more deeply coloured pink/red, blue/lavender chairs being placed in the church, which must be removed and the PCC must certify to the Registry on or before June 1, 2023 that the pink/red and blue/lavender chairs have been removed from the interior of the church. [Re St. Mary the Virgin Primrose Hill  ECC Lon 2] [Top of section] [Top]
Re St. Michael Upton Warren  ECC Wor 7 The petitioners wished to remove three light, moveable, twentieth century pews from the Grade II* church, together with 20 chapel chairs, and replace them with up to 25 new chairs of a light-coloured wood with burgundy red upholstery on the seats and backs. Historic England cautioned against the use of upholstered replacement chairs due to their likely impact on the church’s interior, which is predominantly furnished in timber. The Victorian Society and the Georgian Society also objected to upholstered chairs. The Chancellor granted a faculty for the removal of the three pews and the chapel chairs and the introduction of up to 25 new wooden chairs, provided (inter alia) that: the new wooden chairs should be stained to match the surrounding woodwork; only the seats should be upholstered; and the colour of the upholstery should be a neutral colour to blend in with the colour of the wood. [Re St. Michael Upton Warren  ECC Wor 7] [Top of section] [Top]
Re Stourport Town Cemetery  ECC Wor 8 in which Humphreys Ch granted a faculty to authorize the exhumation of the remains of the petitioner’s father and re-interment with the purpose of removing some jewellery from the deceased. The funeral directors, Co-op Funeralcare, had apparently buried the Petitioner’s father wearing jewellery that the family had specifically requested be removed .
The family now wished to open the grave to obtain this jewellery before closing the grave up again. The mistake was noticed shortly after the remains had been interred and the petitioner had acted promptly. There was no plan to remove the remains of the deceased, nor to disturb them any further than was essential for the purpose of obtaining the jewellery. All family members consented to the exhumation and wished it to take place , though Stourport Town Council’s Parks and Cemetery Superintendent was unenthusiastic about the proposal “although he stopped short of directly opposing it”  and exhumation was conditional on “all reasonable conditions” he might require. [Re Stourport Town Cemetery  ECC Wor 8] [Post] [Top of section] [Top of post]
Re St Margaret and All Hallows Orford  ECC Liv 1 The petitioners sought a faculty to permit the exhumation of their grandfather’s cremated remains from the churchyard at Orford and re-interment in the grave of his wife in Warrington Cemetery. The grandfather died in December 2000 and was predeceased by his wife by approximately 18 months . Sixteen years later, their daughter petitioned for a faculty seeking the exhumation of her late father’s ashes, and the re-interment in Warrington cemetery ; however, the instant application concerned the re-interment in a family grave purchased by their granddaughter, (though this relationship was not evident from the papers supplied to the Court) . Wood Ch. noted:
“. Whilst the petition refers to the written consent of the area dean of Warrington…this has not in fact been forthcoming. On the contrary it is said that he expresses his opposition, and in a letter dated 24 May 2017 the churchwardens of St Margaret’s wrote to the Registry indicating similar opposition. It was said that no mistake had been made when the late Mr Greaves was interred in consecrated ground in the graveyard. At the time the
parish was in an interregnum”.
In addition to Re Blagdon Cemetery  4 All ER 482, which applied the earlier principles in Re Christ Church Alsager  Fam.142 the Chancellor cited the more recent similar case Re St. George New Mills  ECC Der 2 in which a family had sought to unite the remains of deceased; in this case the Chancellor refused to grant a faculty as the cremated remains of both parents could be reunited at New Mills, and the creation of new family grave elsewhere did not justify the disturbance of an existing family grave.
In the present case, no sufficient exceptional circumstances had been shown: the petitioner’s grandfather had died 18 months after his wife had been buried in the cemetery and the family (who said that they had mistakenly thought that his remains could not be buried in the same grave as his wife, who had been a Roman Catholic) had decided to have his remains buried in Orford churchyard; a long period of time (21 years) had elapsed since his death; and there was no support for the exhumation from the parish . Wood Ch. observed:
“. if arrangements have not been put in place prior to death with a family plot, the consistory court cannot indulge the moving of remains which have been interred through Christian burial in consecrated ground simply on the basis of strongly expressed family wishes, however genuine or sincere”.
Re Widnes Cemetery  ECC Liv 3 A family grave had been in existence for some time within this cemetery, (since 1952) in which the parents and sister of the deceased had been buried (or at least their ashes interred). Prior to her passing, and with the knowledge of the deceased, the reserved grave had been reconfigured with edging stones put in place, and the grave upgraded to allow the inclusion of her mortal remains at the appropriate time . “For reasons which are not altogether clear, the interment of the casket of ashes was outside the enclosed grave, and between the rear edging stone and the path .
It subsequently came to the attention of the grieving family that despite the wishes of the deceased to be interred with her family, her mortal remains have in effect been “cast adrift” and the casket [of ashes] was not set within the grave. They therefore application is to exhume the casket and to put it in its rightful place within the grave .
Having given this matter careful consideration, Wood Ch. had little difficulty in coming to the conclusion that this was such an exceptional case arising from an error or a misunderstanding, and where a family grave had been established in the full expectation that the interment was going to take place therein. Although normally he would have expected to see a far fuller explanation as to how such a situation had been allowed to arise, but bearing in mind that the application for a petition for exhumation was made only a matter of days after the mistake came to light, it appeared to the Chancellor that it would be both disproportionate and insensitive to require further details in a case where exhumation is clearly appropriate .
The Chancellor decided that an error or misunderstanding had occurred, which, combined with the prompt request for rectification, amounted to an exceptional circumstance which would justify the grant of a faculty for exhumation and re-interment as requested; the only condition was that it is carried out within three months of the faculty grant . [Re Widnes Cemetery  ECC Liv 3] [Top of section] [Top of post]
Re Northfleet Cemetery  ECC Roc 2 A baby had died about an hour after its birth and the parents arranged for it to be buried in Northfleet Cemetery. They afterwards regretted their hasty decision to have the baby buried. The mother’s mental health, supported by medical evidence, had suffered. She wished to have the body exhumed and cremated, with the intention of retaining the cremated remains at home until she had recovered from her grief. The Chancellor granted a faculty, subject to conditions that the cremated remains should be interred in consecrated ground within 10 years, and until interment the cremated remains should be retained in a respectful and careful manner. Re Northfleet Cemetery  ECC Roc 2] [Top of section] [Top of post]
Re St. Nicholas Earls Croome  ECC Wor 9 The Petitioner wished to install a kerbed memorial in the churchyard, an option not included in the Diocesan Churchyard Guidelines. Although the request was supported by the Priest in Charge, the sole churchwarden, and the Diocesan Advisory Committee, the PCC was divided, with some members supporting the petition and others opposing it . The reasons for the opposition were based on the additional difficulties of maintenance that kerbed gravestones present, and the consequent costs; other objections included its potential as a trip hazard, a point with “some merit” and the possible requests of other families.
The Chancellor granted a faculty (subject to conditions about the height of the kerbs) for the following reasons put forward by the family : the deceased had died young in tragic circumstances and a more substantial memorial was appropriate to mark her grave; the family particularly wished that kerbs would discourage people walking on the grave; there were already 16 kerbed memorials in the churchyard. Also, the parish priest had advised that the family had European heritage where there was a culture for more elaborate memorials and the inclusion of kerbing was part of that cultural heritage.
Humphreys Ch. invite the Petitioners to consider making donations and/or a legacy
to the church over future years for the ongoing maintenance of the churchyard, but did not make this a formal condition of this, having no knowledge of their circumstances and the other calls on their resources . [Re St. Nicholas Earls Croome  ECC Wor 9] [Top of section] [Top of post]
Re St. Cuthbert Etherley  ECC Dur 5 The “main Petitioner” sought permission to inter the cremated remains of her mother in a grave containing the remains of two members of her family. She also wished to replace the existing worn memorial with a small stone to be laid horizontally on the grave, with a longer inscription in gold lettering and etchings of butterflies . The PCC supported the petition, on which the churchwarden was joint petitioner .
The petitioner had already arranged for the memorial made without prior permission first; the memorial was made of Corian®, a man-made material, the primary use of which is for kitchen work tops. The colour was pinkish and flecked with other colours. Iles Ch. stated “on this ground alone, namely the use of unproven man-made material, a faculty will not be granted for the proposed memorial” .
“Furthermore, the proposed new memorial does not comply with rule iv) of the Churchyard Rules by virtue of its size as a solitary ledger, and it falls outside the provisions of rule xi) in at least two respects with regard to the inscription, namely that the lettering is of gilt, and the inscription is too wordy and not simple enough” .
The Chancellor also did not approve of the use of the term “passed” instead of “died, and nor would he permit the Petitioner’s name to appear on the memorial – the memorial was not to her, and her name should not appear on it .
He therefore refused to grant a faculty for the proposed memorial, noting that it was unfortunate that the Petitioner had incurred wasted expense in having the new memorial made without seeking permission beforehand, “but this demonstrates the perils of going ahead without first consulting the incumbent or the diocesan registry . Had he had been prepared to grant a faculty he would in any event have first required the petition to be re-advertised, “because the public notice was misleading in stating that it was to be a granite base memorial rather than constructed from man-made corian” .
In respect of the uncontentious part of the petition which seeks a faculty for the interment of the cremated remains, a faculty was granted.[Re St. Cuthbert Etherley  ECC Dur 5] [Top of section] [Top of post]
Re St. Mary Great Chart  ECC Can 2 The petitioner wished to install a replacement memorial on his parents’ grave. The design included images of a dove, a stairway to heaven and two swans. The inscription included a verse of poetry written by the petitioner’s daughter and it ended with an x, the symbol of a kiss. There was an objection that the design would not be in keeping with the part of the churchyard where the memorial would be located. The Chancellor granted a faculty, subject to a condition that the x should be omitted from the inscription. [Re St. Mary Great Chart  ECC Can 2] [Top of section] [Top of post]
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Alkmund’s Churchyard, Duffield, Derbyshire; Saint Nicolas Church Churchyard, Kings Norton, Birmingham, West Midlands; and St Thomas Churchyard, Rotherham, South Yorkshire
- Burial Act 1853 (Final) Order prohibiting further burials in: All Saints Church Churchyard, Beckingham, Doncaster, South Yorkshire; St Mary’s Church Churchyard, Rickinghall Superior, Suffolk; St Mark’s Church Churchyard, Eldon, Bishop Auckland, County Durham; St John the Baptist & St Helen Churchyard, Wroughton, Swindon, Wiltshire; and St Mary and All Saints Church Churchyard, Stoughton, Leicester, Leicestershire.
A new policy came into force on 24 October 2022 although there is a lacuna in the case of The Right Reverend Peter Hullah where the penalty was imposed before this date. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.
- Decision: Revd Dr Stephen Sizer. A complaint made in 2018 by Mrs Marie van der Zyl, President of the Board of Deputies of British Jews, alleging that Dr Sizer’s conduct was “unbecoming or inappropriate to the office and work of a clerk in Holy Orders within section 8(1)(d) of the Clergy Discipline Measure 2003 in that he provoked and offended the Jewish community and/or engaged in anti-Semitic activity”. (6 December 2022).
Penalties by consent
- The Right Reverend Peter Hullah
Date imposed: 1st August 2022
Brief Summary: Sexual misconduct involving two different women on two separate occasions.
Penalty: Prohibition for life.
- The Revd PHIL GREIG
Date imposed: 7th December 2022
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Limited prohibition for 4 years
- The Revd SIMON MATTHEWS
Date imposed: 31st October 2022
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Limited prohibition for 1 year
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 14 December 2022. Extracts from the determinations in March, May and July were included in the September round-up of ecclesiastical decisions. Decisions from the meetings on 8 September 2022 and 3 November 2022 are now available and are summarized below. The next meeting of the CFCE is on Thursday 2 February 2023.
- Cathedral Church of Christ, Canterbury. To conserve the damaged early 19th century frame surrounding the portrait of Dean William Friend (inventory number 02275.2). Approved.
- Cathedral Church of Christ and the Blessed Virgin Mary in Chester. Re-siting of historic Stuart font. Approved subject to conditions.
- Cathedral Church of St Peter in Exeter. To deliver the second phase of Exeter Cathedral’s 2020’s Vision – Investing in Our Welcome project. The proposals include: Installation of new service routes (infrastructure cabling/electrical and data services, heating); Reordering works in the Chapel of St James, Quire, Quire Aisles, the former Vestries and Cathedral Shop. The Commission decided to approve the deferred elements of the application.
- Cathedral Church of St Peter and the Holy and Indivisible Trinity. Conservation and repair of two books: Lactantius (H.6.11), 1472; and Selden (SEL.1.3), 1652. The Commission determined to: approve the proposals for Lactantius; and defer determination of the proposals for Selden pending further information.
- The Cathedral Church of St Mary the Virgin and Saint Ethelbert the King, Hereford. Loan of the Romanesque capital Christ descent into Limbo to La Réunion des Musées Métropolitains, France. Approved subject to conditions.
- The Cathedral Church of Christ in Liverpool. To install an echo organ in the north-east of the triforium. Approved subject to conditions.
- The Cathedral of the Holy and Undivided Trinity of Norwich. Minor repair to processional cross (Inventory no. E11*). Approved subject to conditions.
- The Cathedral Church of St Paul, London. The removal of temporary City of London removable bollards on the public highway, directly to the southwest of the west steps, to be replaced by three PAS-rated removable security bollards of the same appearance. The new bollards will be on cathedral land, on the boundary of the precinct, aligned with the late 19th-century granite bollards around the forecourt perimeter. Approved subject to conditions.
- Cathedral Church of Christ, Canterbury. To install a new security arrangement to Mint Yard Gate following the approved demolition of Mitchinson’s House and garden wall. Summary: external alterations to the existing Home Office compliant Hostile Vehicle Mitigation measures at Mint Yard Gate, including four new fixed bollards and a proposal to redecorate the security hut. Approved subject to conditions.
- Cathedral Church of Wells. Conservation of the Strikers to the North Transept, North Elevation Exterior Clock Face. Approved subject to conditions.
- Cathedral Church of York Minster. Retrospective consent for a temporary compound in the North Transept to 31st December 2030. Approved subject to conditions.
Recent summaries of specific issues that have been considered in the consistory courts include:
- CDM: Revd Dr Stephen Sizer, (7 December 2022).
- Church of England Parochial Fees 2023, (8 December 2022).
- Smyth Review – further update, (14 December 2022).
- CDM – penalties by consent, (19 December 2022).
- Parochial Fees: CDM and general issues, (22 December 2022).
- Church in Wales Parochial Fees 2023, (30 December 2022).
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
Last updated, 31 December 2022.