Review of the ecclesiastical court judgments during October 2023
The seven consistory court judgments circulated in October relate
to Reordering, extensions and other building works, Church Treasures/Sale of Paintings/Loans/Memorials, and Churchyards and burials. This summary also includes Privy Council Business, links to CFCE Determinations, and Links to other posts relating to ecclesiastical law.
Reordering, extensions and other building works
- Reordering and alternative uses
- Other building works, including re-roofing
- Removal and replacement of pews
- Heating
Reordering and alternative uses
Re All Saints Stanton [2023] ECC SEI 2 Several items of reordering were proposed. The Society for the Protection of Ancient Buildings and the Victorian Society, though not formal parties to the proceedings, objected to the design of the new access on the north side of the church, the proposed quartz heaters and the replacement of the pews with chairs. The Chancellor was satisfied that the benefit of the changes would outweigh any harm to the church, and he granted a faculty. [Re All Saints Stanton [2023] ECC SEI 2 ] [Post] [Top of section] [Top of post]
Re St. Mary the Virgin Stebbing [2023] ECC Chd 2 The Petition, as originally advanced, sought permission for a major reordering of the interior of St. Mary’s, and the replacement of its heating system. However, it evolved significantly over time, and the approval that was eventually sought was rather more limited than the original request [1,2]. Although the Chancellor’s decision pertains to the Petition, he handed down a public judgment because the Petition raises three matters of wider application, which may be of interest to others involved in the Faculty process in this Diocese [3], viz.
(i) The proper approach to Faculty applications where the Petitioners seek approval for a number of works in the context of a major project;
(ii) The proper approach to statutory consultation; and
(iii) The choice of chairs to replace pews, where the removal of pews is sought and granted, in a church of historic significance such as St. Mary’s which is Grade I listed.
After reviewing the “somewhat lengthy background” to the case [4] to [34], the Chancellor addressed the Faculty in the light of the various revisions that the Petitioners had made, and in view of the further information subsequently supplied [35]. As St. Mary’s is Grade I listed building, the proper approach was to address the “Duffield questions”, i.e the guidelines set out by the Court of the Arches in Re St. Alkmund, Duffield [2013] Fam. 158, at [87].
Hopkins Ch. considered consider the various elements of the Petition noting that she was also greatly influenced by the views of the various consultees, and the fact that although a number of them raised objections, those objections have almost all now been resolved [37].
- The revised proposals relating to the nave and aisle floor, [38] to [42];
- Provision of new limecrete slab, floor finish and underfloor heating, [43] to [47];
- The removal of the pews, [48] to [51];
- The replacement of the pews with stacking chairs, [52] to [61].
The Chancellor granted a faculty based on the revised proposals [72, 73]. The judgment further contains advice to petitioners in general concerning adequate consultation with the statutory consultees and the preparation of clear plans and specifications, particularly where plans and specifications have been amended:
“[67]. …Petitioners for a Faculty for major projects cannot expect that a Faculty will be granted simply because a proposal is large-scale, with matters of detail to be left until later. On the contrary, a Petition for Faculty for a major project ought to provide a fuller explanation than one for a smaller matter. It is no good leaving the Court to wade through plans with little or no guidance or explanation as to what is going on.
[68]. Projects can, and often should be, taken in stages. The present case is an example of this: the Petitioners have in the end, and very sensibly, focused on the matters that need resolving now, leaving approval for other matters to be sought at a later date.
[69]. Such an approach is likely to commend itself to the Court. In contrast, a Petition which seeks approval for matters that are still developing, lack detail, or are said to be likely to be the subject of change, is likely to find itself being referred back to the Petitioners, with no Faculty being issued at all. That only gives rise to delays and expense.
[70]. Similar considerations arise where a proposal has been, or needs to be, the subject of statutory consultation…It is incumbent on Petitioners to engage properly with consultees, to take their views on board and to demonstrate that they have done so (or, if they have not done so, why they have not done so). And the DAC ought not to issue a final Notification of Advice unless it is satisfied that the consultees’ views have been properly taken into account: see the provisions of the Rules referenced above.
[71]. If those steps are not taken, all that happens is that it becomes necessary to direct that further consultation takes place – as occurred here. I was by no means satisfied that the consultation exercise had been properly followed through. In the event, the third round of consultation that took place was valuable. It allayed the concerns of the consultees; it caused me to be satisfied that their concerns had been taken on board; and it narrowed significantly the scope of the objections that were made. But if the consultation exercise is not completed properly before a Petition for Faculty is presented, all that happens is that time and effort is wasted”.
[Re St. Mary the Virgin Stebbing [2023] ECC Chd 2] [Top of section] [Top of post]
Other building works, including re-roofing
Re St. James Piccadilly [2023] ECC Lon 4 The petitioners sought permission to undertake extensive works to the church and churchyard [1(i) to (xi)], of which the only item in contention was the proposed erection of a new thatched pavilion building in the south-west corner of the churchyard. (referred to in the judgment as “the Garden Building”). The Diocesan Advisory Committee recommended the proposed works, albeit with twenty provisos [3(i) to (xx)]. Etherington Ch. noted that most of these related to the lack of sufficient detail provided to the DAC, so that whilst he was prepared to grant this faculty, (subject to consideration of the thatched roof on the Garden Building), “in principle there will be an unusually large number of Conditions” [4].
He noted that the works comprised those involving the church itself, which were not the subject of objection, and those in the churchyard that included the Garden Building [6]:
“[7]. This, and many aspects of the works, have been the subject of a planning application which was granted on February 10, 2023 and, inter alia, approved the erection of the single storey garden building in the churchyard.
[8]. In my judgment, a good deal of what would constitute the legitimate interests of the consistory court have been considered, addressed and approved with numerous conditions by the planning authority.
The possibility of the churchyard being a disused burial ground (“DBG”) was considered: “any burial ground which is no longer used for interments, whether or not the ground has been partially or wholly closed for burials under the provisions of a statute or Order in Council (S2 Disused Burial Grounds Act 1884)”. The Petitioners stated that the churchyard or burial ground is consecrated and that it has been used for burials, but is no longer used for burials and was closed by Order in Council on August 8, 1853. There are no graves identified as war graves by the Commonwealth War Graves Commission [10].
Under the 1884 Act, the Garden Building would have been prima facie unlawful, but the Disused Burial Grounds (Amendment) Act 1981 excluded from the 1884 Act certain cases, provided either no interments or relevant objection had occurred in the during the preceding fifty years immediately before the proposal to erect a building. Similarly in S18A Care of Churches and Ecclesiastical Jurisdiction Measure 1991 [12, 13]. Also, the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 [14].
Etherington Ch. was satisfied from the information provided and the Registry’s search of the records that there have been no interments in this DBG within 50 years preceding any point in the last five years, and noted “it is, however, important for this reason…that the petition is properly dated”[15].
With regard to the concerns of the SPAB [16] to [21], the Chancellor stated:
“[22]. My judgment is that these considerations are perfectly proper observations for a consultee to make although perhaps at the fringes of SPAB’s remit since the building itself is to be a new building and SPAB’s concern about the visual impact of the thatch is sufficiently set out in its principal objection…
[23]. The real issue that SPAB raises is, notwithstanding planning permission, the contention that the thatch roof would deleteriously affect the character of the churchyard or the architectural and historical significance of this famous church.
[24]. I do not consider that a proper case has been made out that the use of thatch on the Garden Building will adversely affect the character of either the churchyard or the church itself…
[24]. Thus, given the Planning Authority’s clear understanding of this area in terms of conservation and given my assessment that the feature of one thatched roof on this modest single-storey new building will not have any deleterious effect on the churchyard and the church, I see no basis for refusing that aspect of the petition and, accordingly, I grant the faculty as prayed.”
The faculty was granted subject to conditions [26 (i) to (xviii)] [Re St. James Piccadilly [2023] ECC Lon 4] [Top of section] [Top of post]
Removal and replacement of pews
Re St. John the Baptist Witheridge [2023] ECC Exe 2 In 2022, a faculty
was granted for reordering the church, including the introduction of stackable chairs for temporary use at the back of the nave. It had been a condition that the design of the chairs should be approved by the Diocesan Advisory Committee [see: Context preamble]. The petitioners had chosen a Canterbury style chair from Alpha Furniture, but the DAC was not prepared to approve this design due to the chair having a curved back. The Chancellor had therefore been asked to settle the matter [3].
McFarlane Ch. observed that he could understand the central point as to a wavy or ‘busy’ effect made by the DAC, but did not consider that this factor should be seen as a trump card [3]. He commented:
“[5]. The deciding factor, in an otherwise fairly balanced decision, is that the Parish have tried out a number of alternatives and that the curved back is preferred for comfort. A primary aim of providing chairs is presumably for them to be comfortable. The Parish are no doubt hoping that those who attend services and events will enjoy the experience and come again. The imposition of a design of chair which is thought to be less comfortable and has been rejected by those who are going to be using them, should only be required where there is a clear need to do so.
The aesthetic benefit of rows of straight back chairs, whilst understood and normally supported by this court, is not sufficiently weighty to justify imposing such a design in this case against the considered wishes of the Parish.
He accordingly granted a faculty, provided that the proposed chairs were suitably stained to blend with the remaining church furnishings [6]. [Re St. John the Baptist Witheridge [2023] ECC Exe 2] [Top of section] [Top of post]
See Re St. Mary the Virgin Stebbing
Church Treasures/Sale of Paintings/Loans/Memorials
Re Removal of a Commemorative Plaque for Safeguarding Reasons [2023] ECC Oxf 9 The Chancellor gave an anonymised judgment in order to protect the privacy of those who might be affected by the judgment. The petition requested authority for the removal of a commemorative plaque which had been installed without faculty on a window sill inside the church. The plaque recorded that the window above it had been restored by a local farmer and former long-serving churchwarden, who had died in his 80s. It had been brought to the attention of the Parochial Church Council that in the 1950s the former churchwarden had been convicted on four charges of sexual abuse. The Chancellor granted a faculty, being satisfied that the petitioner had demonstrated a sufficiently good reason justifying the removal of the commemorative plaque. [Re Removal of a Commemorative Plaque for Safeguarding Reasons [2023] ECC Oxf 9] [Post] [Top of section] [Top of post]
Designation of closed churchyard
Re St. George Fatfield [2023] ECC Dur 2 A boy aged 13, a keen
footballer, had been killed when knocked off his bicycle by a speeding motorist. He was buried in the churchyard. The family wished to erect a memorial which included features outside the diocese’s Churchyard Rules – polished black granite with gold lettering; in the top left quarter, a large image of a young man with a football at his feet, standing in front of a stairway leading to heaven, with light beams at the top of the stairway radiating out from a heart; in the top right quarter an inscription giving names, dates and relationships; and in the lower half of the memorial a poem 8 lines long and containing 90 words [2] to [7].
The PCC had approved the application unanimously and requested the court to appreciate the pastoral sensitivity involved with the petition [8], although the DAC decided that it could not recommend the petition for approval on a number of grounds [10]. Expressing surprise at the DAC’s advice, the vicar acknowledged the its point about the size of the lettering on the poem, and encouraged the family to produce a life size mock up to illustrate what it would look like [11].
Iles Ch. reviewed the relevant principles on the right of burial or interment in a churchyard [13], citing the Court of Arches decision in Re St. Giles Exhall [2021] EACC 1 which cited with approval the analysis of Hill Ch. in Re St. John the Baptist Adel and St. Michael Markington [2016] ECC Lee 8. Iles Ch. stated that the court would take into account pastoral considerations, but such considerations are not determinative. “They are part of the matrix of relevant considerations, as explained by Bursell Ch. in Re The Churchyard of Quarrington Hill [2016] ECC Dur 1“.
The Chancellor accepted that there were already several memorials of polished black stone with gilded lettering in the churchyard and that a faculty should not be refused for another. However, he determined that a faculty would be granted if there was an acceptable smaller image, and if a much shorter inscription could be agreed for the lower half of the memorial, the revised design to be approved by the court. [Re St. George Fatfield [2023] ECC Dur 2] [Top of section] [Top of post]
Re St. Margaret Lower Halstow [2023] ECC Can 3 The petitioners sought to reserve a single-width, double-depth grave space. The PCC supported the petition, but a number of objections were raised [1]. The couple did not live in the parish, but attended the church occasionally and supported the church financially [2(i)]. On 16 February 2023, the petitioners applied to be added to the electoral roll, but it was not clear that, at the time of this petition (17 March 2023) they had in fact been entered onto the electoral roll. Hopkins, Commissary General, noted:
“[2(ii)] It may be that their application was made in the context of this petition, though I do not have conclusive information on that point”.
According to the incumbent, the churchyard has approximately 20 years’ worth of space for burials (approximately 30 available plots; 3 burials had taken place over the last 2-3 years) [2(v)]. Some parishioners objected to graves being reserved, saying that interments should be on a “first come, first served” basis. The PCC was unanimously opposed to the petitioners’ original proposal to reserve a double-width grave, but voted by a clear majority to support the petitioners in reserving a single-width, double-depth plot in a specified location within the churchyard [2(v)]. The incumbent supported the revised petition [2(vi)] but In response to public notices, seven objections were submitted to the Registry, including one from an Associate Priest of the Parish [2(v1)].
The Commissary General referred to his determination in Re St. Mary & St. Radegund Postling [2021] ECC Can 1 in which he decided that the petitioner had a sufficiently strong connection to the church to meet the exceptionality threshold for granting faculty for the reservation of a grave space notwithstanding opposition from the PCC. He restated the salient principles from that judgment and also took account of other decisions of Consistory Courts in comparable circumstances [5] to [8]. He noted that there was a sufficient connection to the church [11(i)]; there was no formalised and transparent policy in place at the time this petition was lodged [11(ii)]; and even if that the PPC’s subsequent policy had been formalised transparently at the time of this petition, it was by no means clear that granting this faculty would be contrary to that policy [11(ii)].
He further acknowledged the objectors’ concerns about the risk of a precedent being set whereby people with insufficient connections to this parish and/or church could reserve grave spaces, but his view was that the policy that the PCC had now formalized mitigated against that risk [2(vi)]. Petition granted. [Re St. Margaret Lower Halstow [2023] ECC Can 3] [Top of section] [Top of post]
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Helen’s Church Churchyard, Matlock, Derbyshire; St Helen’s New Churchyard, Benson, Wallingford, Oxfordshire; St Johns Garden of Remembrance, Oakley, Hampshire; St Peter’s Churchyard, Glenfield, Leicestershire.
- Burial Act 1853 (Final) : Order prohibiting further burials in: St Nicholas Churchyard, Brockenhurst, Hampshire; Holy Trinity Hurdsfield Churchyard, Macclesfield, Cheshire; St Mary’s Churchyard, Long Stratton, Norfolk; St Peter’s Churchyard Extension Barnburgh, Doncaster, South Yorkshire.
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. These included the determinations for the 7 September 2023 meeting. The most recent meeting took place on Thursday 26 October 2023 and the next will be on Thursday 14 December 2023.
Recent summaries of specific issues that have been considered in the consistory courts and elsewhere include:
General/Miscellaneous
- What has HS2 ever done for us? (5 October 2023).
- “Magic lamp” technology to heat church, (6 October 2023).
- Reform of the law on cohabitation?, (11 October 2023).
- ‘Retain and explain’ guidance – DCMS, (13 October 2023).
- Removal of plaque from church for safeguarding reasons, (17 October 2023)
- Parochial Fees to PCC – proposed changes, (24 October 2023).
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
Updated: 4 April 2024
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