Review of the ecclesiastical court judgments during June 2023 (I)
The second part reviews the remaining three judgments on
and also includes: CDM Decisions and Safeguarding; Reports from the Independent Reviewer; Privy Council Business; CFCE Determinations; Other legal issues; and Links to other posts relating to ecclesiastical law.
- Reordering and alternative uses
- Other building works, including re-roofing
- Removal and replacement of pews
Re St. Mary Ingleton  ECC Lee 2 On 27 March 2023, the Court issued a faculty for a modest suite of works at the parish church of St Mary, Ingleton, a grade II* listed building, on the basis that the petition was unopposed . Subsequently, a letter of objection was sent to the team vicar of the parish; it was received by him within the time prescribed in the public notice but not sent to the registry, as required . The team vicar sought to find a means of accommodating the writer’s concerns, but she declined to withdraw her objection .
In order to ensure both procedural and substantive justice to all concerned, on 11 May 2023 Hill Ch. directed that the faculty be set aside pursuant to r 20.3(1)(a) Faculty Jurisdiction Rules 2015 (as amended) . There was no response to the r 10.3 letter, and the writer did not elected to become a party opponent. It therefore fell to the Court to determine the matter, taking the letter into account. No further directions were necessary as the team vicar had given a comprehensive response to the letter of objection in a letter of 25 May 2023 .
The letter of objection suggested there had been an insufficiency of public consultation, and argued that the expense of the works was inappropriate in what it described as a cost of living crisis. It did not consider that sacred space should be used for bazaars, which was one additional use to which the church might be put following the reordering .
Applying the Duffield framework, the Chancellor considered that the likely harm to this building, were the works to be implemented, would be minimal, that the justification was considerable and compelling, and any minor harm will be wholly outweighed in the benefit to this small but faithful and vibrant community, ably served by its gifted priest . The Chancellor had no hesitation in directing that a faculty pass the seal . [Re St. Mary Ingleton  ECC Lee 2] [Top of section] [Top of post]
Re Holy Trinity Westcott  ECC Gui 3 The petitioners applied for a faculty to remove the remaining nineteen pews in the nave and replace with “Theo” chairs; and to modify and restore the floor to create a single level worship space across the main body of the church . In 2002 the south aisle pews were replaced by chairs while a creche room was enclosed at the west end in 2004 , and in May 2021, the PCC and the then incumbent were granted authority to undertake temporary minor re-ordering .
The works were approved by a majority of the PCC (13 to1) and are estimated to cost £40,000 and take 4 weeks. The petitioners completed a net zero checklist in compiling their proposals. The DAC approved the proposals on 4 August 2022 and the petitioners’ insurance company has been notified of the works. The church is in vacancy and the petition was raised by the two churchwardens .
In the Statement of Needs, the petitioners say that their most pressing requirement is to permit people to participate in a wider range of worship and other activities. They seek to raise the floor level of the nave to maximise the useable level floor area of the church allowing greater flexibility and inclusivity  to . The amenity societies initial responses in early 2022 resulted in revised statements of significance and needs, an access audit and further comments . The Victorian Society noted that the ‘well preserved Scott interiors are increasingly rare’ and wished to preserve the pews for heritage reasons. In an email dated 1 December 2022, the CBC confirmed that it was satisfied by the parish’s answers about the proposed replacement chairs and the effect on the heating .
The Victorian Society served a Form 5 objection to the removal of the pews and the covering of the central nave aisle with a raised floor concealing the
Gilbert Scott tilework . On 16 February 2023 the petitioners sent the Society new information revealing the 1880 faculty pointing out that it was not a complete Scott church and interior as previously understood. In March 2023 the Society withdrew as a party opponent to this petition on this basis .
When considering the Duffield questions, Burns Ch. said “[a]lthough it is not a church with a very high level of architectural or heritage interest, it is still significant:
“In my view the proposals would result in a medium level of harm to the significance of the church as a building of architectural or historic interest; the removal of the pews would be a major change to the overall interior” .
“In my judgment there is clear justification for carrying out these proposals. There is a need for flexibility in the modern use of the church building for the worshipping congregation and so that it is used by the community” .
“. I do not accept the suggestion that these original pews are plain, functional and of no real architectural interest. Although they may or may not have been part of Scott’s original vision, they are likely to have been an important part of the heritage of the church for over 100 years…I do not accept that pews are unwelcoming because they are always uncomfortable. Although pews are not naturally ergonomic and may lack the comfort of a modern chair design, they are still a much-valued feature of many Victorian churches and should not be disposed of lightly”.
“. I have considered the CBC guidance on chairs and consider that the new Theo chairs meet the CBC advice to use of high-quality wooden chairs.
The Chancellor granted a faculty, finding that there was “clear justification for the proposals in order to meet the need for flexibility in the modern use of the church building”. [Re Holy Trinity Westcott  ECC Gui 3] [Top of section] [Top of post]
Re Streatham Park Cemetery  ECC Swk 5 The petitioner’s brother had died, aged 5, in 1970 and his remains were interred in a consecrated part of Streatham Park Cemetery. It had been the hope of the petitioner’s parents that they would be able to be buried next to their son. The petitioner’s mother having recently died, it was discovered that the she could not be buried next to her son. The petitioner therefore sought a faculty to have her brother’s remains exhumed and the grave dug deeper to allow the reinterment of her brother’s remains, the interment of her mother and, in due time the interment of her father . The Chancellor determined that there were exceptional circumstances to justify the grant of a faculty: “… family graves are intrinsically a good thing, as expressive of family unity and making economical use of grave space . The creation of a family grave formed part of the exceptional circumstances arising in Blagdon.”
Re Cottingley Hall Cemetery  ECC Lee 1 Owing to a mistake by Leeds City Council, the burial authority, the remains of the petitioner’s mother had been interred in a grave reserved for someone else. The petitioner sought permission for the exhumation of his mother’s remains and their reinterment in the grave where they should have been interred. The Deputy Chancellor expressed surprise that the application for faculty had been made by the petitioner and not by Leeds City Council Bereavement Service. However, they were named by the Chancellor as an “Interested Party”, although they had not formally been made a party to the proceedings:
“. … In the circumstances of this matter it seems appropriate to issue a special citation on the basis that Leeds City Council Bereavement Services appears to be the organisation that should bear all the expenses and legal fees arising from the necessity of these proceedings, for the reasons expressed in this judgment”.
The person who had the reserved right of burial in the grave where the remains of the petitioner’s mother were erroneously interred had agreed in writing to consent to the exhumation from the plot over which he has legal rights. The Deputy Chancellor noted that “there clearly rests no fault upon him in the circumstances of this matter” . It was assumed that bereavement services from Leeds City Council would undertake the planned exhumation and re-interment, and would do so in a reverent manner .
The Deputy Chancellor stated:
“. … the Ecclesiastical Jurisdiction and Care of Churches Measure has been amended by the insertion of section 14A, which includes a direction that a decision of the Court of Arches shall be deemed to be a decision of the Chancery Court of York, and vice versa. That variation does not, however, specify whether a subsequent decision of the Court of Arches should overturn a decision from the Chancery Court or run parallel with that judgment.
. Notwithstanding the suggested precedence of the Alsager judgment in the Northern Province I do note that the Diocese of Leeds petition form for exhumation specifically refers the Petitioner to the Blagdon judgment and invites him/her to take legal advice on the principles espoused”.
In granting a faculty the Deputy Chancellor stated:
“. In this matter the circumstances are quite clear that an error in administration lead to [the remains of the petitioner’s mother] being erroneously interred in the wrong grave. Under Blagdon that is specified to be an exceptional circumstance permitting the principal of permanence of Christian burial to be set aside. Under the Alsager test I am confident that any “right minded member of the Church at large” would consider that in this case there was clearly a good and proper reason for exhumation and re-interment. No fault can be placed upon the petitioner or his family, who discovered the error within four days of interment and have diligently sought to correct the error as soon as possible.
As the fault in this matter appears to rest entirely with Leeds City Council Bereavement Services I shall make a provisional order against them to pay all legal costs, fees and expenses arising from this application, including the costs of the exhumation and re-interment…”
Re West Norwood Cemetery  ECC Swk 4 In 1995, the remains of the petitioner’s late mother’s stillborn child were interred in the consecrated children’s section of West Norwood Cemetery. The petitioner’s parents were both Roman Catholics, and were not told that the plot was consecrated and did not appreciate that it was consecrated . Mr and Mrs Ward are Roman Catholics. Before the child’s remains were interred the plot was blessed by a Roman Catholic priest who also conducted a service according to the rites of that Church .
In 2022/2023, the petitioner’s mother was terminally ill. It was not possible for her remains to be interred with those of her stillborn daughter since she was buried in a section of the cemetery reserved for children. There were also no plots available for adults.
She therefore reserved a double depth plot in unconsecrated land at Mitcham Road Cemetery, Croydon, for herself and her husband and an adjoining plot, hoping that her stillborn daughter’s remains could be move there . The petitioner’s mother died in March 2023. The Chancellor determined that there were circumstances which justified an exception to the norm of permanence of burial, namely, ignorance of the fact of consecration and the creation of a family grave [10[. He therefore granted a faculty, noting:
“Since … was stillborn, I do not know if a licence from the Ministry of Justice is required for the exhumation of her remains. [The Petitioner] (or those acting for her in this matter) should check”.
Re Astwood Cemetery Worcester  ECC Wor 1 The petitioner sought permission for the exhumation of the cremated remains of her father  and place them in unconsecrated, privately owned farmland in Bigsweir, Gloucestershire together with the removal of the existing grave and headstone . The motivation for the application was that the petitioner’s mother, the widow of the deceased subsequently died and her mortal remains were cremated.
The petitioner wished to bury her remains together with those of the deceased but not in the location of the deceased’s grave. At present these remains are located in the home of the petitioner’s brother awaiting a decision as to how and where they are to be permanently laid to rest . She also intends that her own remains and those of her brother will in due course be placed in the same intended grave site on the private land .
Humphreys Ch. stated that the first principle arising from Re Blagdon Cemetery  Fam 299 is that if exhumation is permitted in should be conditional upon the remains being reburied in a suitable, permanent location. Whilst it can now be assumed by the court that unconsecrated burial grounds maintained by a local authority are suitable for use for that purpose, it remains the case that no such assumption can be made as to the suitability of other unconsecrated ground .
The Chancellor commented:
“. Unfortunately, I am not able to say that this location is suitable for burial such that remains entrusted to consecrated ground should be permitted to be relocated there. There is no suggestion that this location has previously been used as a private family burial ground and there is no existing tomb, grave marker or other indication that this land is set apart from ordinary use. I have also not been given evidence that this site forms part of a long-established family estate that is unlikely to pass out of family ownership or is subject to a trust limiting its use.
It is therefore reasonably foreseeable that over the years that this land will pass into the ownership of people unrelated to the deceased, who may not know that it has been used as a burial site or who may be unwilling to take responsibility for maintaining it. I am told the field corner has now been ‘sectioned off’ and that ‘the farmer no longer grows crops there or on the rest of the field’. I have no further detail. I do not consider this is sufficient ‘setting aside’ or necessarily permanent”.
In light of this fundamental difficulty, the Chancellor gave a brief consideration to the other principles in Re Blagdon Cemetery . The Chancellor was not persuaded that the proposed location was suitable for burial, such that remains entrusted to consecrated ground should be permitted to be relocated there and following the guidelines in Re Blagdon Cemetery, the circumstances were not sufficiently exceptional that a faculty should be granted for the proposed exhumation and reinterment.
However, “Nothing in the judgment prevents the petitioner burying or scattering her mother’s ashes on her own land, subject to the observation of any applicable secular law. But the matter is different once someone’s remains have been committed to consecrated ground where the presumption of permanence applies, as was the case with [her mother’s] ashes” .
Re Brookwood Cemetery  ECC Gui 4 The petitioner’s father died in a car accident in 1967 at a relatively young age, when the family lived in Surrey. His ashes were interred in Brookwood Cemetery, near where the family lived . The Petitioner’s mother moved to Australia two years after her husband’s death, leaving her three children in England. She died in 2008, but during her lifetime, she lodged no petition for her husband’s remains to be moved .
The Petitioner states that she and her siblings wish to reinter their father’s ashes in St Mary’s Church because the deceased was born and grew up in that area. His children have now all moved away from Surrey. They currently live in London, Andover and Australia. They say that they do not wish to leave their father ‘alone’ in Surrey ; It was the wish of the petitioner and her two siblings that their father’s ashes be exhumed and reinterred in the churchyard of St. Mary Conistone in North Yorkshire, where a number of family members were buried, though there was no family plot.
There is, however, no family grave, as such, at St Mary’s Church, Conistone: it is simply that many family members have been buried in the churchyard in the past. There may be other members of the Tennant family who are buried elsewhere . Following the guiding principles in Re Blagdon Cemetery, the Deputy Chancellor could find no exceptional circumstances to justify exhumation after such a long period of time. [Re Brookwood Cemetery  ECC Gui 4] [Top of section] [Top of post]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.