Review of the ecclesiastical court judgments during May 2023

• Reordering, extensions and other building works
• Exhumation
• Churchyards and burials

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

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Reordering, extensions and other building works

• Reordering and alternative uses
• Heating

Reordering and alternative uses

Re St. Leonard Hythe [2023] ECC Can 2 By an application in Form 16 dated 7 March 2022, Mr Christopher Cooper petitioned for an order to be made requiring the PCC and Churchwardens of St Leonard, Hythe, to remove a portable altar/nave altar and associated furniture currently sited on the Chancel steps. He sought an order for this to be restored to what he referred to as its “correct location” in order that that “full use” of the High Altar was restored [1].

The Commissary General noted “Mr Cooper has a longstanding interest in the church of St Leonard, Hythe” [2] and submitted a lengthy witness statement and other subsequent documentation in support of his case [4], [11] and [13]. Shortly after the application, the newly arrived priest-in-charge approached the archdeacon, seeking a Temporary Minor Re-Ordering licence (“TMRO”) rule 8 of the Faculty Jurisdiction Rules 2015 (as amended), to allow the altar to be used occasionally for a trial period, after which the PCC could decide whether it wished to apply for a faculty to make the arrangement permanent [6].

The Archdeacon stated that in his view and experience, a TMRO was not strictly necessary in these circumstances, given that the furniture in question was moveable [7]. The Commissary General observed: “[t]he position was therefore that, if lawful authority was required for the use of the Portable Altar of which Mr Cooper complains, that authority was absent at the time of Mr Cooper’s application for a restoration order (7 March 2022) but then supplied via the TMRO (24 March 2022) [8]. In response to the subsequent exchanges,  [8] to [13], in which Mr Cooper alleged that a “web of deceit and sleights of hand” had occurred in relation to the Portable Altar [10]. The key relevant points from Mr Cooper’s 40-page “Apologia Pro Vita Sua” document identified by the Commissary General are listed below, [although he noted “[m]uch of that document was not (and did not purport to be) relevant to this specific application” [13]]:

• Mr Cooper argues that the giving of the TMRO was abusive, in that it formed part of a Diocesan agenda to cover up unlawfulness at this church and to frustrate Mr Cooper’s application for a restoration order [14];
• He argues that, even if the TMRO had not been abusive, it cannot authorize the temporary use of furniture that had been introduced into the church without lawful authorisation in the first place [15];
• “the Court of Ecclesiastical Causes Reserved should sit to consider the serious damage and departure from Anglican tradition of kneeling to receive the Holy Communion and not having a railed-off sacrarium area which is set aside from the public walking around or through the area as with a longstanding High Altar…”. [15].

In light of Mr Cooper’s argument that the granting of the TMRO was an abuse, the Commissary General invited a submission from the Archdeacon, which initiated further correspondence [16] to [21]. In his conclusions, Hopkins Comm. Gen. declined to exercise that discretion so as to make the restoration order Mr Cooper seeks since “it would not be just or proportionate to do so in these circumstances” [23]. He stated:

“[29]. I conclude that, if lawful authority was required for the uses of the Portable Altar to which Mr Cooper objects, that authority was in place from 24 March 2022 onwards, by virtue of a valid TMRO. It would be both unjust and disproportionate for me to make a restoration order in the face of that TMRO, not least given that, upon the expiry of that TMRO in March 2024, there may be a petition for faculty to set matters on a permanent lawful footing.

Mr Cooper, and anyone else concerned, can provide their input in connection with any given petition as and when it is made. In my view, that is the appropriate stage for determining the appropriate long-term arrangements for the use of the Nave Altar and associated furnishings within this church”.

[Re St. Leonard Hythe [2023] ECC Can 2] [Post] [Top of section] [Top of post]

Heating

Re St. Michael Wandsworth Common [2023] ECC Swk 2 The Vicar and Churchwardens wished to replace the existing gas boiler and radiators in the church with a ChurchEcoMiser system (involving the installation of 23 new electric radiators) [1]. The church is currently heated by a gas boiler which is coming to the end of its life and since 2020 the parish has been considering the options for replacing the boiler and providing a new heating system for the church. In the context of the Church of England’s aspiration of net zero 20302, the parish wanted to move to a green option; if possible, one that was carbon neutral [3]. The preferred option is the installation of the ChurchEcoMiser system comprising an appropriate number of electrically powered radiators [5,6], described here. The Parish proposed to use “green” electricity [8].

The DAC pointed out that, for ‘”more frequently used churches” [i.e. in comparison with churches used only for Sunday services] direct electric heat emitters are not an option recommended in the guidance issued by the Church Buildings Council, which expressed a number of reservations [10]. Although the DAC saw advantage in installing an air source heat pump (ASHP) system, the parish had a number of concerns and “in the particular circumstances of the case; the DAC resolved neither to recommend the proposals nor not to recommend them but, instead, not to object to them [13].

The Parish had first consulted the DAC on the ChurchEcoMiser proposal before 1 July 2022, the date on which the revised legislation came in force. Consequently, the DAC was not required by the rules to include a statement under what is now rule 4.9 (7A) [16]. By an email dated 3 May 2023, the DAC subsequently advised the Chancellor that it did consider the Parish’s explanation to be adequate:

“[18]. [t]his is because…the parish has considered those concerns expressed by the DAC previously, and has extensively researched the options, and (due to the problems with the current church gas boiler) does not have abundant time in which to continue exploring options more extensively. The transition to ‘net zero carbon’ is gradual rather than sudden, and there will still be future opportunities for this parish to pursue an energy audit/feasibility study, and to look at other measures like solar panels and insulation.”

As regards earlier DAC advice/comments about factoring in ‘embodied carbon’ (i.e. the carbon emissions involved), it stated [19]: “there is not yet an agreed methodology to assess embodied carbon objectively and accurately within these types of proposals and to weigh it up against reductions in operational carbon emissions“.

The Chancellor did not consider it appropriate to require the petitioners to investigate the option of an air source heat pump [24]. He was satisfied that the petitioners had done enough to justify their proposed choice of heating system and granted a faculty. [Re St. Michael Wandsworth Common [2023] ECC Swk 2] [Top of section] [Top of post]

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Exhumation

Errors in burial

Re Bloxwich Cemetery [2023] ECC Lic 1 When the petitioner’s uncle was interred in 1969, the intention was that the grave would accommodate three coffins in a single family grave. In error, the interment was made insufficiently deep. When it came to the second burial, that of the petitioner’s father in August 2022, the mistake was discovered. The interment proceeded, but the family then entered into discussions with Walsall Council Bereavement Services.

The Bereavement Services supported and will fund the exhumation of the two coffins, the deepening of the grave and the reinterments, having fully accepted the error. The Funeral Directors responsible for the second interment undertook to provide suitable outer shell coffins for both the deceased “which, given the passage of time since the first interment, is essential” [2].

Following the approach in Re Blagdon Cemetery [2002] Fam 299 and citing with approval Re St. John Washingborough [2014] Lincoln Const Ct Bishop Ch. (graves deepened) and Re St. Nicholas Codsall [2015] Lichfield Const Ct, Eyre Ch. (graves relocated). He also noted “[b]y contrast, in this case, a very long established intention for a family grave of triple depth will be frustrated if exhumation and reburial in the same plot, but deeper, were not to be permitted” [5]. He further considered it was appropriate to exercise his discretion having regard to the circumstances overall and the wish for the formation of a family grave [6]. The Chancellor was satisfied that a mistake had been made in 1969, therefore the case was sufficiently exceptional to warrant the grant of a faculty as requested. [Re Bloxwich Cemetery [2023] ECC Lic 1] [Top of post] [Top of post]

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Churchyards and burials

• Designation of closed churchyard
• Churchyard Regulations
• Reservation of grave space
• Trees

 

Designation of closed churchyard

See Privy Council Business.

Churchyard Regulations

Re St. Werburgh Hoo [2023] ECC Roc 2 The petitioner wished to erect a memorial to her late father; the churchyard of this Grade I church is almost full, and there are a number of memorials in it which do not comply with the Diocesan Churchyard Regulations [1,2]. Whilst the Priest in Charge and PCC would not normally agree to a “non-standard” memorial, they were prepared to make an exception in the instant case as there is a similar family memorial nearby, some three plots away. They also appeared to have taken into consideration the fact that the grave is about 90 yards from the church, and at the edge of the churchyard [7].

No objections had been received in response to the display of public notices. The DAC, however, did not recommend several aspects of the proposed memorial [4]. In particular, did not recommend the proposed use of the words “Sunrise” and “Sunset”, the proposed tablet at the foot of the grave, or the inscription “See you on the other side”[7].

Gallagher Ch. stated:

“[9]. I do not accept that the addition of a tablet or any of the proposed options of wording for it are appropriate. The similar family memorial referred to by the petitioner does not, in my view, create a precedent given that each petition must be decided on its own individual merits.
[10]. As for the use of the words “Sunrise” and “Sunset”, having read the petitioner’s reasons for wanting to use there words, with some diffidence I am prepared to allow them.
[11]. This means that I grant a faculty approving the memorial…as sought, save that the proposed tablet is not permitted.”

 [Re St. Werburgh Hoo [2023] ECC Roc 2] [Top of section] [Top of post]

Reservation of grave space

Re St. Peter Bourton-on-Dunsmore [2023] ECC Cov 1 The petitioner sought a faculty giving her the right to be buried in the same grave as her late partner. There had been a rift in the past between the petitioner and the deceased’s mother. (See Re St. Peter Bourton-on-Dunsmore [2022] ECC Cov 6, where the same petitioner sought to have reference to herself added to her partner’s memorial (commissioned by his mother), but her application was refused.) In the present case, the deceased’s mother did not object to the petitioner having the right to be buried in the same grave. The Chancellor granted a faculty. [Re St. Peter Bourton-on-Dunsmore [2023] ECC Cov 1] [Top of section] [Top of post]

Trees

Re St. Nicholas Kingsey [2023] ECC Oxf 5 The Rector and Churchwardens applied for a faculty for the removal from the churchyard of a healthy mature lime tree at a cost of £2,875, due to a risk of subsidence damage to an adjoining property as advised by their retained arboriculturist [1]. Investigations carried out by loss adjusters acting for the adjoining house-owners have identified “slight damage” by cracking to the front extension, and also to the side extension where it abuts the bungalow [2]. Consideration had been given to pruning alone as a means of mitigating the vegetative influence but this is not considered to offer a viable long-term solution due to the proximity of the lime tree.

Furthermore, the report also recommended the felling of other trees in close proximity to the bungalow[2]. The correspondence between the parties and their agents is reported in [3] to [9]. At the PCC meeting in November 2021, it reluctantly decided to progress with applying for any necessary faculty for the felling of the lime tree; the DAC issued a Notification of Advice stating that it did not object to the parish’s proposal for the “Removal of a healthy mature lime tree due to risk of subsidence damage of neighbouring property”. The Notification recorded that:

“It is not the desire of the Parish or the DAC to fell healthy trees which are a cherished part of the churchyard landscape and wildlife habitat, however the Parish have accepted to do so in this case out of good neighbourliness and in order to mitigate any future risk to the adjacent property”.

There was one letter of objection from a long standing resident which explained “she was so opposed to it being felled, emphasising the importance of mature trees in carbon capture and storage, and the need to preserve, and not to fell, mature trees.” The Chancellor explained the law concerning the felling of trees within the faculty jurisdiction [17] to [19], an explanation which he reiterated in Re St. Andrew Sonning [2023] ECC Oxf 6, [9] to [10], infra. He further cited the CBC Guidance Works to Trees in Churchyards in relation to the classification of “dying trees”, “dead trees”, and “dangerous trees”, summarized here. [Note: there is separate guidance for Wales].

Although Re St. Leonard Monyash [2017] ECC Der 3 concerned the authorization of the removal from the churchyard of a lime tree which was in danger of causing damage to an adjoining property,as recommended in a report prepared by a tree specialist, [21] to [23], Hodge Ch. noted that the facts were very different from the instant case. “[T]here the threat to the adjoining property was potential, rather than…actual. Nevertheless, the case affords an instance of the grant of a faculty which permitted the felling of a healthy, mature lime tree growing in a churchyard in order to protect a neighbouring property from damage, both to property and amenity” [23].

Environmental issues were raised in relation to the role of trees in removing CO₂ from the atmosphere [4] and [13], the carbon footprint of the underpinning option [6], and more general issues raised at the Oxford Diocesan Synod in March 2023 [25] to [28]. Hodge Ch. commented:

“[29]. … I must bear all of these factors, and the impact of the loss of this mature tree on the appearance, and the immediate environment, of this churchyard, firmly in mind. I must weigh against them, however, the financial risks to the parish in terms of threatened, and costly, litigation…sufficient investigations have been carried out to satisfy a court of law that an actionable nuisance has occurred; and that legal precedent would require the removal of the lime tree which grows on the church’s land as a reasonable means of abatement of this nuisance.

I do not consider that it is for me, as Diocesan Chancellor, to seek to re-visit, or to question, such advice when it accords with the advice apparently received by the neighbouring landowners. In my judgment, it must be for the PCC, as the custodian of the parish’s finances, to determine whether that is a price worth paying, as the cost of preserving this lime tree, bearing in mind the aesthetic, and the environmental, impacts of the loss of that tree.

[30]. I have concluded, with great reluctance and regret at the loss of a mature and healthy lime tree, that if that is the course which the parish consider appropriate in order to address the nuisance that the tree is causing to their neighbour’s residential property, then the consistory court should not stand in their way.”

A faculty was granted permitting (but nor requiring) the felling of this lime tree [32], subject to the following conditions:

• The tree felling shall be carried under the direction of the Rector and churchwardens; and shall be undertaken by a suitably qualified and experienced arboriculturist who holds appropriate insurance for the works;
• The tree felling shall be completed within three (3) years of the grant of the faculty, or such further time as the court may allow;
• The tree felling shall take place outside the bird nesting season, which officially starts in February and ends in August [Wildlife and Countryside Act 1981];
• Care is to be taken not to disturb any birds whilst they are nesting, building a nest, or in or near a nest containing their young;
• The lime tree is not [to] be felled until after, or at the same time as, the other trees recommended for felling in the arboricultural appraisal report obtained by the neighbouring owners’ loss adjusters in May 2019 from MWA Arboriculture Ltd;
• At least one replacement tree of a species, and at a location, to be approved by the archdeacon must be planted during the current, or the next, growing season after the felling of the lime tree.

[Re St. Nicholas Kingsey [2023] ECC Oxf 5] [Post] [Top of section] [Top of post]

Re St. Andrew Sonning [2023] ECC Oxf 6 The deputy churchwarden issued an online faculty petition seeking a retrospective faculty to regularize the felling of a lime tree formerly growing within the churchyard which had become dangerous. The DAC issued Notification of Advice recommending the works for approval by the court, on condition that consent for any replacement tree should be obtained under List B.7 (1) prior to planting. It advised that the felling of the tree would not affect the character of the church as a building of special architectural or historic interest [2]. Hodge Ch. dispensed with the giving of the usual public notices due to the retrospective nature of this application, noting “what’s done, is done” [3]. The background to the felling is given in [4] to [7]; subsequently, however, the professional who had advised Wokingham Borough Council indicated that the amount of wood that had ceased to function was approximately 25% less than it had seemed initially;

“[7]. …after dissecting the tree, it had become apparent that [his] initial view that this tree had been dangerous was probably wrong. It might possibly have lasted between two and ten years (being lenient) before becoming unsafe. [He] is sorry for the tree’s early removal; but he considers that having removed it too early rather than too late is probably the better outcome.”

Hodge Ch. outlined the law concerning the felling of trees within the faculty jurisdiction [9] to [10], and reiterated his explanation in Re St. Andrew Sonning [2023] ECC Oxf 6, [17] to [19], supra. He further cited the CBC Guidance Works to Trees in Churchyards in relation to the classification of “dying trees”, “dead trees”, and “dangerous trees”, summarized here; he also noted the environmental issues [13], [14]. In his analysis and conclusions, he commented:

“[15]. The moral of this unhappy case is that even if a tree poses an immediate and serious danger, so there is not the time to go through the full faculty process before dealing with the threat it presents, parishes need to bear firmly in mind the need for the Archdeacon’s written consent under List B.7 (2). This can usually be obtained extremely quickly, and at the same time as obtaining any necessary local authority consent if this is required because the tree is subject to a tree preservation order or is in a conservation area.”

The Chancellor was satisfied that the felling of this lime tree would result in no harm to the significance of the church of St Andrew as a Grade II* listed church building of special architectural or historic interest. With regard to whether the petitioner had shown a sufficiently good reason for the felling of the tree, he noted:

• immediately before the tree was felled, it was perceived, by an experienced and suitably qualified tree surgeon, to be dangerous, and to represent an immediate threat to health and safety;
•  the local authority had been satisfied that the felling of the tree was required to make the area around it safe;
• even on the information now available, the tree would have had to be felled within the next two to ten years; and
• the tree will be replaced by at least one replacement lime tree, to be planted as close as reasonably practical to the tree that has been removed.

He therefore granted the faculty as asked, but since he was dispensing with the giving of the usual public notices, he impose a further condition that the parish is to display a copy of this judgment in some prominent place within the church, so that any resident of the parish who is concerned by the loss of this lime tree may know, and understand, the reasons for this; and to supply a copy of this judgment (in hard or soft copy) to anyone who asks for one. [Re St. Andrew Sonning [2023] ECC Oxf 6] [Post] [Top of section] [Top of post]

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Privy Council Business

17 May 2023

• Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Mary the Virgin Church Churchyard, Diptford, Devon; St Mary’s Church Churchyard, North Huish, Devon; All Saints Churchyard, Nazeing, Epping Forest, Essex; and St Andrew Churchyard, Burgess Hill, West Sussex.
• Burial Act 1853 (Final) Order prohibiting further burials in: Holywell (North) Churchyard, Oxford, Oxfordshire; Holywell (South) Churchyard, Oxford, Oxfordshire; St Martin’s Churchyard, Looe, Cornwall; St Mary the Virgin Church Churchyard, Alderbury, Salisbury, Wiltshire; St Mary the Virgin Churchyard, Swineshead, Lincolnshire; St Bartholomew’s Churchyard Extension, Keelby, Lincolnshire; St James Churchyard, Badsey, Worcestershire.

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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.

• No CDM Decisions reported in May 2023.

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 DAVID WILLIAM RENSHAW
  Diocese: Chichester
  Date imposed: 24th May 2023
  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: Removal from office and life prohibition
• The Revd Canon JAYSON DONAL RHODES
  Diocese: Leeds
  Date imposed: 22nd May 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 & limited prohibition for 10 years with effect from 31 July 2023

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Reports from the Independent Reviewer

Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.

• Inquiry by Independent Reviewer into the appointment of the Rt Revd Philip North as Bishop of Blackburn

The Rt Revd Philip North has recently been appointed as the new diocesan Bishop of Blackburn, and WATCH has submitted a referral of concern to the Independent Reviewer, Canon Maggie Swinson, under the relevant regulations. WATCH states that the Independent Reviewer has recognised their concerns and has initiated an inquiry into them.

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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 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, February 2023, March 2023 and May 2023 meetings were not available. (There was no meeting in April 2023).

The next meeting of the CFCE is on Thursday 13 July 2023.

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Links to other posts

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

Reordering, extensions and other building works

• They bury (and burn) altars, don’t they? (9 May 2023).
• “Dastardly” crime foiled by churchwarden, (12 May 2023).
• King’s College Chapel, Cambridge – Assessment of data, (17 May 2023).

General/Miscellaneous

• The Coronation: Materials and Commentaries, (5 May 2023).
• Lord Sentamu required to step back from active ministry, (13 May 2023).
• Grieve review of Christ Church Oxford completed, (17 May 2023).
• King’s College Chapel, Cambridge – Assessment of data, (17 May 2023).

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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.