Review of the ecclesiastical court judgments during April 2023
Eleven consistory court judgments were circulated in April concerning:
- Reordering, extensions and other building works
- CCVT
- Exhumation
- Churchyards and burials
- Organs
This summary 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.
Reordering, extensions and other building works
- Substantial reordering
- Reordering and alternative uses
- Other building works, including re-roofing
- Net Zero issues
- Heating
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Re St. George the Martyr Preston [2023] ECC Bla 2 Extensive reordering works
were proposed. The amenity society consultees objected mainly to the replacement of the two wooden and glazed draft lobbies at the north and south entrances to the church, with new structures and the removal of three ranks of pews, in order to provide disabled access and a welcoming area; and also the design of an altar to replace one previously installed without authority. Hodge Ch. was satisfied that the petitioners had shown a sufficient justification for the works and he granted a faculty.
In addition to the more contentious issues of the replacement of the two wooden and glazed draft lobbies, the Chancellor addressed the removal and disposal of a nave altar, installed previously without permission, and the introduction of a new bespoke altar [1(4)]. Photographs are included in the judgment, and readers may agree with its description by Hodge Ch. as “ghastly, poorly constructed from flimsy materials, and entirely out of keeping with the simplicity of the rest of the sanctuary area [29]”. The focus of this post, however, is the legislation on the disposal of altars and fonts; in the instant case, the Chancellor stated:
“Since the altar will have been dedicated to its sacramental role in the celebration of the Eucharist, or Lord’s Supper, it should not be profaned by any secular use which might result from its sale or disposal for any non-liturgical purpose. Any disposal of the altar must therefore be undertaken with particular care. As a last resort, the altar should be [burned] or broken up and buried within the church or other consecrated grounds“.
The more general issues surrounding the destruction of altars will be considered in a separate post (t.b.a.). [Re St. George the Martyr Preston [2023] ECC Bla 2] [Post] [Top of section] [Top of post]
Reordering and alternative uses
Re St. John the Evangelist Killingworth [2023] ECC New 2 Several items of reordering were proposed, driven by a desire to provide basic modern facilities in the church in order to reach out to the wider community and encourage families into the church. These proposals include [5]:
- to build an extension to the northern elevation of the nave to comprise a new entrance lobby incorporating a small library, notice boards and two lavatories, one
designed to be fully accessible; - a modernised heating system;
- to raise the organ (still the 1869 second hand instrument) on to a mezzanine floor; this will create space for a small kitchen, a cleaner’s cupboard and storage; provide space for a small informal meeting area;
- repositioning the font opposite the new entrance and in sight of the altar; and
- undertaking various minor repairs including redecoration.
There were three objectors, of whom one became a party opponent; their main objections related to the extension.
After reviewing the objections, the Chancellor noted (emphasis added):
“[50]. This is not a case where the court is greatly assisted by any of the authorities in relation to alteration of listed churches. The court is bound by the principles set out in Duffield, St Alkmund [2013] Fam 158, but this is not a case where it is suggested that the intended extension would harm the character of this Grade II listed church. The scheme has been devised from its earliest iterations with a view to preserving the character and interior of St John’s.
It is acknowledged by those who have objected, either explicitly or by implication, that modern adequate facilities need to be provided as a necessity to support, promote and extend the mission of St John’s. For the reasons already given, the court is satisfied that this cannot be achieved without the building of an extension. The two objectors are lone voices in arguing against it”.
The Chancellor was satisfied that the petitioners had made out a good case for the proposals and he therefore granted a faculty [54]. [Re St. John the Evangelist Killingworth [2023] ECC New 2] [Top of section] [Top of Post]
Other building works, including re-roofing
Re St. Mary the Virgin Wheatley (No. 2) [2023] ECC Oxf 3 This judgment is a sequel to the judgment in Re St. Mary the Virgin Wheatley [2021] ECC Oxf 8, which granted a faculty for all of the works proposed by the petitioners save for the proposed new stone floor finish.; Hodge Ch. directed that the petitioners worked with their professional advisers and the Diocesan Advisory Committee (DAC) to select and arrange for the re-laying of as many of Street’s original floor tiles as could be salvaged, and to commission as many suitable reproduction tiles as were required, to replicate Street’s original design for the floor of the nave of the church [1].
The parish submitted the report from Brocklehurst Architects Ltd (Brocklehurst) to the DAC on 8 September 2022. The content of the Report, entitled “5066 Floor Options Appraisal A3 Rev‘”, which addressed the difficulties and the practicalities, is discussed in [3] to [11].
Whilst the Victorian Society supported Option 2 (Replicate Floor Design with Reproduction tiles); the DAC supported Option 3 (a new stone floor with the creation of a tiled east to west central aisle) and Option 4 (all new stone floor to design by Brocklehurst Architects in collaboration with Artorius Faber), the latter being the preferred choice of the Petitioners [17].
The Chancellor noted that in approaching this application for a variation, it was important to bear in mind that the petitioners did not come to the court with a tabula rasa, paragraph 22 of the earlier judgment. He concluded:
“[32]. …the petitioners have failed to show a clear and convincing justification for Option 4 in preference to Option 2. Option 4 will cause greater harm to the significance of the church as a Grade II* listed building than Option 2; and that greater harm cannot be justified by the costs savings which would follow from the adoption of Option 4. I do not agree with Brocklehurst’s view that ‘would be more in keeping with Street’s original design to simplify the floor layout to suit the proposed furniture layout and use of the church rather than rigidly stick to a design which has lost some of its relevance now that the pew arrangement and overall use of the church is different’”.
Alternative ways forward were suggested by the Chancellor [33], and he refused to grant the variation application in relation to an all stone floor [34]. [Re St. Mary the Virgin Wheatley (No. 2) [2023] ECC Oxf 3] [Top of section] [Top of post]
Re King’s College Chapel Cambridge (2) [2023] ECC Ely 2
An earlier case note on Re King’s College Chapel Cambridge [2023] ECC Ely 1 reported that, depending upon an updated assessment of the potential carbon payback for the north roof and calculations and observations, a faculty would be granted either for their installation on both sides of the Chapel roof or only on the south side. The judgment also required an assessment of the effect on the structure without an identical weight on the north roof.
These calculations had been presented to the court Re King’s College Chapel Cambridge (2) [2023] ECC Ely 2 and assessed by the Chancellor. Although the parties concerned agreed to the calculations per se, the petitioners and CBC differed in their application. This difference of opinion in important both to the instant case and to future assessments in this area. Agreeing with the petitioners and the DAC, the Chancellor was satisfied that there was a convincing justification for placing solar panels on the north side of the college roof, as well as on the south side. A more detailed analysis is included in a separate post (t.b.a.). [Re King’s College Chapel Cambridge (2) [2023] ECC Ely 2] [Post] [Top of section] [Top of Post]
Re Holy Trinity Headington Quarry [2023] ECC Oxf 4 The parish wished to replace the gas boiler with a new, more energy-efficient gas boiler. In 2017, the archdeacon had given notice of approval without faculty under List B1 of the faculty rules, as they were then. For various reasons, the work was delayed during which time the Faculty Jurisdiction Rules were changed to make it a requirement that there should be an application for a faculty for a replacement boiler using a fossil fuel supply.
In the instant case, Hodge Ch determined that he was not in a position to determine whether the archdeacon’s notice remained valid following the rule change, but having sympathy for the parish’s “pastoral and pragmatic” action, suggested that the matter should not be pursued further, although he noted that it provided lessons for the future. A more detailed analysis will be included in a separate post (t.b.a.).
[Re Holy Trinity Headington Quarry [2023] ECC Oxf 4] [Post] [Top of section] [Top of Post]
See Re St. John the Evangelist Killingworth, supra, in which the Chancellor stated:
“[53]. None of the other proposals of the petition are controversial and would not have warranted a judgment. Thus: [i] the proposals for the new heating system, namely, the installation of electric red radiant heaters in association with a suitable green electricity tariff to achieve zero carbon…”
Re St. John the Baptist Holland Road [2023] ECC Lon 2 There are a number of aspects peculiar to this petition, which relates both to security issues and to aesthetic considerations. The petitioners wished to install external CCTV equipment and new external and internal lighting at the Grade I church. There was one objector, a neighbour, who said there was already sufficient CCTV in the area, that the additional external lighting would increase light pollution, including “antisocial light disturbance”, and would attract undesirable people.
The position of St John’s on a major highway leaves it particularly vulnerable and there have been regular cases of fly tipping outside the church, graffiti damage; and low-level occasional drug dealing. The church is regularly asked (at least once a month) for CCTV footage by the Metropolitan Police for accidents and incidents occurring outside the church. There are no other local authority cameras along this part of Holland Road [3].
The Royal Borough of Kensington and Chelsea (RBKC) confirmed that planning permission was not required [1], and was supportive of cameras being installed; it also have provided funding under their NCIL programme to cover the whole cost of works. Furthermore, the authority provided advice on GDPR, as it considered that some of the images would fall within protected categories [3]. The church also wished to illuminate various aspects of the church, as described, for aesthetic reasons including backlighting the Rose Window, using controls to restrict the time the church will be lit. The aim is to improve and focus the lighting effects, although there are security considerations as well [3].
The Chancellor was of the opinion that enhanced Duffield test was not engaged [4]. In concluding, he stated [emphasis added]}
“[22]. Having considered carefully the points made both by [the sole objector] and the petitioners I do not consider that her complaints about the past (which I am not adjudicating) bear much on the proposals before me now. The petitioners say that they do not recognise what she describes as the behaviour of the licensee, nor do they accept its geographical accuracy in all respects. They do accept there have been occasions when particular lights have been left on by the licensee and that they have addressed this and will continue to monitor them. There were other issues historically with the licensee (particularly over planning permission) which were resolved.
[23]. Arguments over whether light or dark (or both) attract vagrants, drug users, drug sellers and so on seem to me to be incapable of sensible resolution, although, generally, light at least illuminates illegal activity. I cannot see that it is relevant to the proposals before me here.
[24]. I understand that some people find CCTV intrusive, but they cannot have it both ways. If they wish to minimise anti-social and criminal behaviour it can be a useful deterrent and evidential tool. It does not surprise me that the local authority not only supports the CCTV proposal but also will meet the cost. The new acoustic cameras relating to the road do not have any relevance to the Petitioners’ proposals. The location of the camera is intended to protect the church and I do not accept that they pose any unreasonable interference with anyone’s rights to privacy. I would have thought that [the sole Objector] would actually welcome this proposal”.
A faculty was granted subject to a condition that the petitioners should negotiate with neighbours and ward councillors about the appropriate time or times at which the lighting was to be switched off. [Re St. John the Baptist Holland Road [2023] ECC Lon 2] [Top of section] [Top of Post]
Re Wandsworth Cemetery [2023] ECC Swk 1 The Chancellor granted a faculty to
allow cremated remains to be temporarily removed from a grave, in order to allow a further coffin burial, noting that the principle of exceptionality in Re Blagdon Cemetery [2002] Fam. 299 “makes clear that the principle of family solidarity is to be encouraged; as is economy in the use of grave space”. The grave will accommodate four coffin burials. It was used for three coffin burials in 1972, 1973 and 1977 respectively; and then for the interment of cremated remains in 1990.
At present, the 1990 interment of cremated remains prevents a further coffin burial. However when the ashes are disinterred, a further coffin burial will be possible; it will then be possible to re-inter the ashes in the same grave. The re-interment of the ashes could take place on the same day as the coffin burial, and this is proposed. [Re Wandsworth Cemetery [2023] ECC Swk 1] [Top of section] [Top of post]
Re Chevington Cemetery [2023] ECC New 3 Owing to a mistake made by the burial authority, some human remains were interred in a plot reserved for the petitioner next to the plot which contained the remains of her late husband. Whilst the generally acknowledged principle is that human remains, once interred, should not be exhumed except in exceptional circumstances, the Chancellor was satisfied that this was an appropriate case in which a faculty should be granted, to rectify an error in administration. [Re Chevington Cemetery [2023] ECC New 3] [Top of section] [Top of post]
Re An Exhumation for a Forensic Post-mortem Examination [2023] ECC Oxf 2. This is an anonymised judgment. The Thames Valley Police applied for a faculty to authorise the exhumation of the body of a person who had died a few years previously, when the cause of death had been given as ‘Old age’. Recent evidence had come to light that the cause of death may not have been natural. The Police therefore wished to carry our forensic tests on the body, to establish whether a crime had been committed. The Coroner had already given permission for the exhumation.
The Chancellor determined that special circumstances existed which constituted good and proper reasons for making an exception to the normal rule that Christian burial is final. It was necessary in the interests of justice to establish whether a crime had been committed and, if not, to dispel any suspicions that had arisen. In view of the special circumstances, the Chancellor considered that there should be no public notice of the application and that no special notice should be given to members of the family or others who might be under suspicion. [Re An Exhumation for a Forensic Post-mortem Examination [2023] ECC Oxf 2] [Post] [Top of section] [Top of post]
Re Chatham Cemetery [2023] ECC Roc 1 The petitioners were a Romanian couple who had planned to settle in the UK [4]. However, after the death of one of their children, aged 10 months, they decided to return to live in Romania [5[. They applied to have the remains of their baby exhumed and reburied in the parish in Romania where they were planning to live with their family. The Chancellor decided to allow an exception to the normal rule against exhumation, unless in exceptional circumstances, after reading a report of a clinical psychologist stating that, since the death of the child, his mother had returned to Romania and had been suffering from “an anxious depressive state and post-traumatic stress disorder”[10].
Her husband had remained behind in the UK temporarily to seek permission for the exhumation. The Chancellor considered that this was an appropriate case in which to grant a faculty for exhumation [12], conditional on the petitioners providing the Deputy Registrar with written undertakings (i) that they will each ensure that the mortal remains of ASD are reinterred in consecrated ground by 31st July 2023 and (ii) that in the exhumation, transportation, and reinterment they will use their best endeavours to ensure that those mortal remains are cared for in a respectful and careful manner. [Re Chatham Cemetery [2023] ECC Roc 1] [Top of section] [Top of Post]
Re St. Barnabas Morecambe [2023] ECC Bla 3 The vicar and churchwardens of this
unlisted church sought a faculty for the removal and disposal of the existing three-manual pipe organ, installed by Edward Wadsworth & Brother of 35 Oxford Street, Manchester, in about 1913 and the installation in its place of a pipe organ originally built by Henry Willis of London in 1865. This had been salvaged from the United Reform Church in Weybridge following its closure in 2021, re-using the solid oak casework retained from the existing instrument [1].
The parish considered that it needed to replace the Wadsworth organ, described as “having been a thorn in the side of the present incumbent for his four years as vicar and a thorn in the side of the parish and the Parochial Church Council (the PCC) for nearly 45 years since it was first rebuilt in 1978”. The parish felt that it needed a ‘clean break’ from the Wadsworth organ, which had not sounded for over two years, since the main wind trunk blew off. Since that time, the parish had been using their chamber organ (which came into its own during the lockdowns when singing was not permitted), and the PCC have carefully and patiently examined their options [7]. it was not capable of sustaining congregational singing. When a faculty was granted for the restoration of the chamber organ, it was on condition that it should not be a replacement for the main organ [8].
The PCC had already made a “leap of faith” in paying for the salvage of the Willis organ from the United Reform Church in Weybridge. The archdeacon had granted a temporary minor re-ordering licence for the Willis organ to be stored in the aisle of the church and form a physical focus for the organ appeal. Should the Weybridge organ not be not installed at St Barnabas, the parish was of the opinion that it would have saved it from potential loss, and would have acquired it as an asset which could be installed elsewhere in the future [11]. The only visible change to the interior will be the organ case and façade of the Willis instrument, which would incorporate some of the oak panelling from the Wadsworth. A detached console would be placed in the aisle near to the organ itself [12].
The judgment describes the progress with the present faculty application, [12] to [18], and considerations of the solde objectors comments, [19] to [22]. IN his analysis and conclusions, Hodge Ch. stated:
“[24]. Consistently with the unanimous views of the expert organ advisers and the advice of the DAC, and notwithstanding the points so clearly made by the sole objector, I am entirely satisfied that the parish have made out a good and sufficient case for the grant of this faculty…
[27]. Even were the parish’s refutation of the objections raised in response to the public notice not so compelling, however, I would still have granted the faculty as asked. That is because it is the PCC, rather than this court, which is best placed, and the appropriate forum, for determining, and resolving, issues relating to the cost of proposed works and the justification for spending money on a church organ”.
This position is supported by “a consistent body of case law authority” of which he cites with approval: Re All Saints, Bakewell [2021] ECC Der 4 and Re St James, Islington [2021] ECC Lon 1, (replacement of organs); and St Joseph and St James, Follifoot [2022] ECC Lee 1; and Re St Mary the Virgin, Ashford (2010) 13 Ecc LJ 244, [28] to [30] (funding of projects). The Chancellor granted a faculty, as asked, and gave permission for the Petitioners to apply to the court, by letter to the Registry, for any further directions as to undertaking this faculty, or for its variation, in the event of any difficulties presenting themselves. In order to allow time for further fundraising, he allowed 24 months from the grant of the faculty for the works to be completed, or such further period as the court may allow. He also imposed a condition that the parish should make reasonable efforts to re-use or sell the salvageable parts of the Wadsworth organ as soon as reasonably practicable [31]. [Re St. Barnabas Morecambe [2023] ECC Bla 3] [Top of section] [Top of Post]
There was no relevant business at the Privy Council meetings during April 2023.
- The Bishop of Chelmsford’s Directions to Chelmsford Cathedral following a Visitation in January 2023, (28 April 2023).
CDM Decisions and Safeguarding
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, 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.
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.
Court of Appeal (Civil Division) on appeal from The Employment Appeal Tribunal
- The Reverend Paul Williamson v The Bishop of London &ors [2023] EWCA Civ 379. Court of Appeal (Civil Division) on appeal from The Employment Appeal Tribunal [2022] EAT 118.
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 30 March 2023.. Extracts from the determinations in 8 September 2022 and 3 November 2022 were included in the December round-up of ecclesiastical decisions. At the time of writing, decisions from the December 2022 and February and March 2023 meetings were not available.
The next meeting of the CFCE is on Thursday 18 May 2023.
Recent summaries of specific issues that have been considered in the consistory courts include:
Exhumation
- AN INSPECTOR CALLS – for an exhumation, (20 April 2023).
- Coffin sliding – urban myths vs the law, (25 April 2023).
General/Miscellaneous
- ISB Statement: Percy -v- ISB Case Resolved, (28 April 2023).
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
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