Ecclesiastical court judgments – February (II)

Twelve consistory court judgments were circulated in February, and the six featured in the first part of the round-up related to Reordering, extensions and other building works and fonts. This second part reviews the remaining judgments which concern Exhumation and Churchyards and burials.

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


Family graves 

Re Wigton Cemetery [2023] ECC Car 1 The Petitioner sought a faculty authorizing the exhumation of the remains of her late husband who had been buried in the cemetery in a single-depth grave in 1961 [1]; this would permit the depth of the grave to be increased in depth and the coffin reinterred so that in due course the Petitioner could be buried with her husband [2].

The undertakers who carried out the interment indicated that the coffin was most probably made of elm, being the material the firm then favoured, on account of its durability and water resistance. Having inspected the grave in question he considered that the coffin was likely still to be in good condition, given the dry ground at this cemetery, although if the exhumation were to proceed he will arrange for a new coffin to be available as a contingency [8].

Noting the exception in Re Blagdon Cemetery [2002] Fam 299 concerning the case of family graves, Fryer-Spedding Ch. determined that the deepening of the grave to create a family grave was an appropriate reason for granting a faculty [14]. [Re Wigton Cemetery [2023] ECC Car 1] [Top of section] [Top of post]

Errors in burial

Re Chapel St. Leonards Lawned Cemetery [2023] ECC Lin 1 A widow reserved a grave space next to the grave of her late husband. Owing to a mistake on the part of the burial authority, the body of another person was buried in the grave reserved for the widow. The Parish Council members of Chapel St Leonards sought a Faculty to remedy this “most unfortunate and distressing error that has occurred in the administration of the lawned cemetery under their care”[1].

The family of the person whose body had been buried in the reserved grave agreed to exhumation and reinterment in the next grave; the Petitioners reached an agreement with family concerned and will pay all the costs flowing from their employee’s error and have agreed to their other requests [3].

The Chancellor granted a faculty, and stressed that in future an up-to-date plan of all grants of exclusive use/reservations must be maintained with an accessible copy in the office for use by gravediggers, staff members, undertakers and visiting clergy [7(iv)], and made this a condition of the faculty [10]. [Re Chapel St. Leonards Lawned Cemetery [2023] ECC Lin 1] [Top of section] [Top of post]

Churchyards and burials

Designation of closed churchyard

See Privy Council Business.

Churchyard Regulations

Re Brookwood Cemetery [2023] ECC Gui 2 Since 2017, human remains had been removed from the burial ground of St. James’ Gardens, Euston to allow for construction of part of the HS2 terminus station. The remains had been reinterred in Brookwood Cemetery, Woking, Surrey. It was now proposed that a substantial memorial, with associated landscaping, should be constructed next to the interments at Brookwood Cemetery, in memory of all those whose human remains had been moved there from St. James’ Gardens, Euston. The Chancellor was satisfied that the design of the memorial, the landscaping and the proposed inscriptions were all appropriate and he granted a faculty. [Re Brookwood Cemetery [2023] ECC Gui 2] [Post] [Top of section] [Top of post]

Re St. Mary the Virgin Long Crendon [2023] ECC Oxf 1 The Petitioner sought to instal an upright, grey, granite, unpolished memorial in an area of the churchyard of the Grade I listed church that has been set aside for the interment of ashes to commemorate the last resting place of the cremated remains of her late parents; the erection of an upright memorial above an interred cremated ashes plot falls outside the scope of the authority delegated to the incumbent minister by the applicable churchyard regulations [1].

The DAC recommended the proposal for approval by the court, advising that it was not likely to affect either the character of the church as a building of special architectural or historic interest, or the archaeological importance of the church, or any archaeological remains existing within the church or its curtilage [3]. However, the PCC had resolved that the proposed memorial was “not suitable” for this part of the churchyard with regard to consistency with other plots for ashes and

“[felt that] the current Diocese of Oxford Churchyard Regulations should be seen to be consistently applied for all villagers, regardless of whether an applicant can afford to risk the faculty fee” [2].

In response to the public notices, objections were received from nine local residents, all on the electoral roll, one from a churchwarden, and four indicating their membership of members of the PCC. All were objecting in their personal capacity, and not on behalf of the PCC as a whole. The objections were on the basis that the proposed headstone was not in keeping with that part of the churchyard where it was to be installed, and that permitting it might set a precedent for future headstones, with designs that were “out of kilter” with that part of the churchyard [5].

Hodge Ch. noted that until June 2021, the caselaw disclosed two competing approaches to applications for a faculty where there had been non-compliance with the relevant Churchyard Regulations: one required ‘exceptional’, ‘powerful’ or ‘substantial’ reasons for departing from the Regulations; the other simply asked whether the proposed memorial was ‘suitable’ [9]. The Arches Court judgment Re St. Giles Exhall [2021] EACC 1 determination provided “assistance to chancellors, clergy and all others involved in administering the faculty jurisdiction in relation to memorials in consecrated churchyards”, including inter alia:

“(3) The court should approach the suitability of the proposed memorial on its own merits, the only constraint being the inability of the court to permit something which is contrary to, or indicative of any departure from, the doctrines of the Church of England in any essential matter.
(4) Mere non-compliance with the regulations, of itself, can never be the only basis on which to refuse a faculty petition. It is necessary to consider whether the particular memorial in question is inherently desirable, or at any rate not undesirable, whether or not it complies with the standards of the regulations.

Other authorities cited by the Chancellor included [11] to [14]: Re St Laurence, Scalby [2019] ECC Yor 3; Re St Mary, Great Chart [2022] ECC Can 2; Re Christ Church, Harwood [2002] 1 WLR. 2055; and Re St Denys, Stanford in the Vale [2019] ECC Oxf 1. After addressing the objections [15] and the Petitioner’s response [16], he determined that the petitioner had discharged the burden of proof of demonstrating why a faculty should be granted notwithstanding that their cremated remains lie in a row of plots set aside for the interment of cremated remains [24]. [Re St. Mary the Virgin Long Crendon [2023] ECC Oxf 1] [Top of section] [Top of post]

Reservation of grave space

Re St. Mary Standon [2023] ECC StA 1 The petitioner wished to reserve a singe depth grave space in the churchyard. She was a resident of the parish and on the church electoral roll, and she attended church occasionally. There were an estimated 248 graves available, equating to 35 years’ worth of burials. However, the Parochial Church Council had passed a resolution in 2021 to adopt a policy of not supporting any further grave reservations, except in exceptional circumstances. The Chancellor considered that the reasons given for the policy were reasonable and there were no sufficiently exceptional circumstances to justify the grant of a faculty. [Re St. Mary Standon [2023] ECC StA 1] [Top of section] [Top of Post]

See also Re Chapel St. Leonards Lawned Cemetery [2023] ECC Lin 1 

Environmental Permit

Parochial Church Council of St John the Baptist ChurchTA6 4AX environmental permit application advertisement. The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016, (1 February 2023). Application number: PR/PP3229PF/A001; Grid reference: ST 30073 42632. This is for the discharge of 0.5 cubic metres per day to groundwater via a trench arch system.

Privy Council Business

15 February 2023

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: Holywell (North) Churchyard, Oxford, Oxfordshire; Holywell (South) Churchyard, Oxford, Oxfordshire; St Martin’s Churchyard, Looe; St Mary the Virgin Church Churchyard, Alderbury, Salisbury, Wiltshire; and St Mary the Virgin Churchyard, Swineshead, Lincolnshire.
  • Burial Act 1853 (Final) Order prohibiting further burials in: St John the Evangelist Church Churchyard, Goldenhill, Stoke on Trent, Staffordshire; St Michael’s Churchyard, Stoke Gifford; St Alkmund’s Churchyard, Duffield, Derbyshire; Saint Nicolas Church Churchyard, Kings Norton, Birmingham, West Midlands; St Thomas Churchyard, Rotherham, South Yorkshire.

CDM Decisions and Safeguarding

CDM Decisions

Written determinations of disciplinary tribunals hearing complaints brought under the CDM, together with any decisions on penalty are published by the Church of England; included are judgments from the Arches Court of Canterbury and the Chancery Court of York where determinations have been appealed. The majority of complaints that are made under the CDM are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal.

Penalties by consent

A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. 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.

The Revd Jean-Luc Sergent
Diocese: London
Date imposed: 3rd February 2023
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: Removal from office & prohibition on ministry for 2 years

Diocese: London
Date imposed: 23rd January 2023
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: Removal from office & prohibition on ministry for 2 years

Diocese: Blackburn
Date imposed: 19th December 2022
Relevant CDM section: 30(1)(a)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Prohibition for life

Diocese: Rochester
Date imposed: 7th November 2022
Relevant CDM section: 16(3A)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Rebuke & injunctions

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

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. Extracts from the determinations in 8 September 2022 and 3 November 2022 were included in the December round-up of ecclesiastical decisions. Decisions from the December and February 2023 meeting are not yet available.

The next meeting of the CFCE is on Thursday 30 March 2023.

Links to other posts

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

Reordering, extensions and other building works

Church Treasures/Sale of Paintings &c



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 – February (II)" in Law & Religion UK, 28 February 2023,