Ecclesiastical court judgments – November

Review of the ecclesiastical court judgments during November 2023

Eleven consistory court judgments were circulated in November and relate to reordering, exhumation, and churchyards. This summary also includes: CDM Decisions and Safeguarding; Reports from the Independent Reviewer; Privy Council BusinessCFCE Determinations; Other legal issues; and Links to other posts relating to ecclesiastical law.


Reordering, extensions and other building works

Post-flood remediation

See Re St. John the Evangelist Crosby-on-Eden

Other building works, including re-roofing

Re St. John the Baptist Aldbury [2023] ECC StA 6 The petitioners proposed works “…to improve the sense of welcome on entry into the church by creating feeling of openness including modifying pews, installation of bookcases, cupboards and noticeboards [excluding the removal of the children’s corner]” [2].

These included: the removal of seven half pews from the north west corner; levelling of the floor by the installation of raised platform flooring, including a ramp for wheelchair access, which will cover (but preserve) decorative tiles in that area of the church; the shortening of pews on outside the south side of the nave so that they are level with the outside of the arcade (as amended following the Victorian Society’s comments); installation of notice boards on south and west walls; the installation of bookcases and storage cupboards [3].

There were no party opponents to these proposed works, but strongly felt  objections were expressed on aspects of the proposals, both from consultees, [5] and [6], and members of the public [7.1] to [7.6]. Applying the Duffield questions, [9] to [27], de Mestre Ch. was satisfied that there was a clear and cogent justification for the proposed approach to floor covering and ramp access [28]; further, there was no controversy as regards the justification for the limited removal of pews, save for the proposed removal of the two end pews to the east of the cross aisle, which was strongly opposed [29].

However, she was not satisfied that a sufficiently clear and cogent justification for the proposed removal of the two half pews on the east side of the cross-aisle had been advanced [34], but save for this element of the works, all other elements of the works set out in the petition were, in her judgment, well justified [35]. Apart form this exception, the petition was granted as sought [37], subject to conditions [38]. [Re St. John the Baptist Aldbury [2023] ECC StA 6] [Top of section] [Top of page]

Re St. Lawrence Bovingdon [2023] ECC StA 7 The petitioners sought a faculty for an extension to the north side of the church and for internal re-ordering, including replacement of the pews with partially upholstered chairs, some new furniture, disposal of the pulpit and lectern, the relocation of a chest tomb, and the introduction of a nave plinth [3].

Objections were received from a numbers of local residents and from the Victorian Society, although none of the individual objectors opted to become Party Opponents. The Church Buildings Council also initially raised concerns, but was content to defer to the DAC which recommended the petition [4]. The Victorian Society argued that the loss of all the pews would rob the church of its character, and the removal of the pulpit could not be justified. It further considered that upholstered seating was not appropriate. Following a site visit, de Mestre Ch. gave directions requiring the Petitioners to provide further information [7]. Details of the proposed works were summarized: external changes, [9] to [11]; churchyard, [12]; and the proposed reordering of the interior, [13] to [16]. The latter included:

  • proposed removal of the 19th century pine pews and their replacement with
    wooden chairs with upholstered seats[13];
  • planned removal of the Victorian pulpit and mid–20th century lectern and  move of chest tomb featuring a knight monument to a position near the south door [13];
  • Underfloor heating fed by an air source heat pump, replacing an existing oil-fired boiler heating system) is also projected to be installed, although the precise plan for heating works remains under consideration [14];
  • Modification of the south porch and the introduction of an accessible platform to ensure accessibility to wheelchair users, alteration to the vestry screen, the replacement of lighting and AV services and general redecoration [15].

Similar objections to those raised by the Victorian Society [17] to [19], were also raised by members of the public, albeit through a different lens [20]. The evidence and objections were reviewed again the Duffield questions [21] to [62]. Taking the proposals as a whole, De Mestre Ch. was satisfied that they would provide a better environment for the varied worshipping needs of the church, community events and provision for children’s activities. She therefore granted a faculty, subject to conditions [63], [64]. [Re St. Lawrence Bovingdon [2023] ECC StA 7] [Top of section] [Top of page]

Re St. Michael and All Angels Bampton [2023] ECC Exe 1 The petitioners applied for a Faculty to permit the early nineteenth century reredos, which had been temporarily removed, to be permanently removed from its original position in front of the East window and relocated to hang above the doorway in the centre of the West wall. In addition, permission was sought to replaster the East wall of the Chancel in such a way as to preserve the medieval wall painting that has been uncovered by the removal of the reredos.

The Diocesan Advisory Committee and heritage bodies did not support the proposals. The parishioners did not wish the reredos to be returned to the east end of the chancel, as its removal had resulted in considerably more light in the chancel. A report by historic building consultants supported the proposal.

The Chancellor determined in principle that the reredos should not be returned to the chancel, subject to a feasible proposal being put forward and approved for its mounting on the west wall. [Re St. Michael & All Angels Bampton [2023] ECC Exe 1] [Top of section] [Top of page]

Re St. Mary Piercebridge [2023] ECC Dur 3 The petition proposed several items of reordering, in order to adapt the church for both sacred and community use. The items included: replacement of the pews with chairs; replacement of the stone font with a moveable wooden font; removal of the main reed organ [an early 20th century harmonium]; creation of a lobby at the west end of the church, and kitchen, toilet and storage facilities; electrical wiring and light fittings; and water and space heating [3, 4]. A meeting was held in April 2013, attended by over 80% of villagers, to consider a proposal that the village school/hall be sold and the proceeds used to create a community and worship space within St Mary’s Church. The estimated cost is £100,000; the funds are already available following the sale of the village school/hall in May 2014 by auction for the sum of £108,000 [8].

No parishioners objected to the proposed scheme [12]; the Durham DAC was satisfied that the PCC’s explanation of how, in formulating the works or proposals, it has had due regard to net zero guidance, was adequate and recommended the proposals for approval by the court, subject to provisos in relation to obtaining planning permission from Durham County Council for connection of the new drainage, and the need for an approved archaeological Written Scheme of Investigation [13].

The Chancellor was satisfied that the community would benefit from the new proposals and he granted a faculty, subject to conditions. With regards to the font, whilst it could be removed from its present position, the PCC must give further consideration to where the best place would be to re-site it within the nave, and then seek further directions from the court [25]. Other proposed works were not considered to be controversial, and:

“[26]. The new proposed electrical heating and hot water system is essential to heat the church properly and to provide modern facilities; the new proposed heaters will provide greater efficiency to assuage any environmental concerns; new light fittings would be an improvement (the PCC will need to consult the DAC on appropriate designs for new light fittings).

[Re St. Mary Piercebridge [2023] ECC Dur 3] [Top of section] [Top of page].

Re St. John the Evangelist Crosby-on-Eden [2023] ECC Car 3 The petition proposed a ramped access at the entrance to the church, a kitchenette at the west end of the church and the erection of a single storey extension to house a WC [1]. It attracted a number of written objections, although none of the objectors opted to become a party opponent [2].

The Petitioners overall aim is to create a modern parish church, adding to the various public facilities already available in the village, and helping it to thrive as a vibrant place to live. By offering welcome and hospitality at the Church in a way that is not currently possible the aim is to challenge the secularity of the local area [13].

Apart from the “naughty” aspects of the design (according to Pevsner), an unusual feature of the church is that is was the only public building in the village that unaffected by the floods of 2005 and 2015, and the Petitioners wish to be able to respond to any future flood event with appropriate facilities [22(c)]. It was also pointed out that with the benefit of a WC and kitchenette it would be possible to open the church to the hundreds of people that pass by while walking the Hadrian’s Wall trail; “this could generate extra income for the Church by attracting donations or through the sale of light refreshments” [23] (?).

The Chancellor was satisfied that the petitioners had presented a sufficiently good case for the proposals, and he accordingly granted a faculty. [Re St. John the Evangelist Crosby-on-Eden [2023] ECC Car 3] [Top of section] [Top of page].

Removal and replacement of pews

Re St. Andrew Bulmer [2023] ECC Chd 3 The petitioners sought permission for the replacement of the Victorian pine pews in the nave and north aisle with “Theo” beech chairs manufactured by Trinity Church Furniture [8] to [21]; and for the replacement of the pew heaters with chandelier heaters [26] to [45]. With regard to the former, Hopkins Ch. was satisfied that the petitioners had put forward a convincing justification for the removal of the pews. She  concluded:

“[22]. It is…right to note that none of the consultees has made any adverse comment in relation to the chairs which the parish propose to replace the pews (Theo chairs by Trinity Church Furniture). That being so, I have taken the view that if the removal of the pews is justified, then the use of Theo chairs – which can be stacked away when not in use – is acceptable”.

[25]. I therefore have little hesitation in directing that a Faculty issue so as to permit the removal of the pews in the nave and north aisle, and their replacement with Theo chairs.

The church had been heated by under-pew heaters. However, this would not be possible if the pews are to be removed, and the Petitioners sought approval for the installation of chandelier heaters to replace the existing heating arrangements, as recommended by the DAC Heating Adviser [26].

The heating proposal was for six “medieval style” chandeliers, each having three 1.0kW low glow infra-red radiant heaters and three up-lighters with LED candle-type lamps [27]. Neither English Heritage nor the Victorian Society has raised any objection to this aspect of the proposals [28]. However,  the SPAB  did not approve of the proposed type of chandelier and suggested a larger, more expensive model [29] to [45]. The Chancellor decided that the type proposed by the petitioners should be allowed, as it would meet the parish’s needs at a reasonable cost and would be aesthetically acceptable. The justification for the proposed chandeliers was: and they meet the parish’s need, which is for warmth; they are relatively low-cost. Furthermore, the DAC considers…that they are aesthetically acceptable, and they are energy efficient – “so facilitating the church’s move towards net zero”  – an important consideration. [Re St. Andrew Bulmer [2023] ECC Chd 3] [Top of section] [Top of page].

Re All Saints Lydiard Millicent [2023] ECC Bri 4 An extensive programme of reordering was proposed [1] to [3], the sticking points of which were the removal of the pews, the replacement of the flooring and the introduction of underfloor heating [4]. The Chancellor approved the replacement of the flooring and introduction of underfloor heating, but he was not satisfied that the petitioners had made an adequate case for the complete removal of the pews. [Re All Saints Lydiard Millicent [2023] ECC Bri 4] [Post] [Top of section] [Top of page].

Heating

See Re St. Mary Piercebridge, Re St. Andrew Bulmer, Re All Saints Lydiard Millicent. 

 


Other

Lydbrook PCC v Forest of Dean DC [2004] Gloucester County Court Lydbrook Parochial Church Council sought an order requiring the District Council (“DC”) to fulfil its liability to maintain Lydbrook’s closed churchyard. The DC sought to have the proceedings struck out because (1) proceedings for judicial review were the appropriate way of dealing with this type of matter; or (2) there was no prospect of success, or (3) the claimants had not agreed to the matter been dealt with through alternative dispute resolution. The judge determined that it was appropriate for the matter to be dealt with by the County Court. The applications to strike out and for summary judgment were dismissed. To avoid substantial costs, the judge ordered a stay of proceedings in order to allow the parties time to resolve their dispute. [ Lydbrook PCC v Forest of Dean DC [2004] GCC] [Top of page].


Exhumation

Re Holy Rood Edwalton [2023] ECC S&N 2 The petitioner wished to have the ashes of his father, who died in 2002, exhumed from a plot of land adjacent to the churchyard. His mother’s ashes were interred with the apparent consent of the then incumbent [3]. The petitioner’s mother died in 2020. It had been her wish that her ashes should be buried with her husband’s ashes, but permission to do so had been refused by the present incumbent who believed the church garden was not consecrated.

Murch Ch. noted that the petition raised three issues: whether the land in which the ashes were laid to rest (the “church garden”) was within the jurisdiction of the court; if so, whether it is consecrated and whether either faculty should be granted [5].

The Chancellor determined that (a) the effect of S5 Consecration of Churchyards Act 1867, under which the land had been gifted, was to add the church garden land to the churchyard, and it therefore came within the court’s jurisdiction; (b) the church garden had not been consecrated; and (c) that, in the circumstances, a faculty should be granted for the removal of the ashes (if practicable) or, alternatively, for the ashes of the Petitioner’s mother to be interred with her husband’s ashes. [Re Holy Rood Edwalton [2023] ECC S&N 2] [Top of section] [Top of page]

Re St. Radegunda Grayingham [2023] ECC Lin 2 The petitioner wished to have the cremated remains of his wife exhumed from just outside the south nave wall, as it was proposed to build a small extension to the church over the site of the interment. The petitioner’s reason for making the application was that he wished his wife’s ashes to be moved to a part of the churchyard where his own ashes could in due time be buried with hers.

The application was made on the basis that unless this it is granted the cremated remains of the Petitioner’s wife would be covered by the proposed new extension and future access for the Petitioner’s cremated remains when the time came would not be possible [9]. It is his wish that his ashes should be interred with that of his late wife and therefore by applying for this Faculty he wants the new location to be a family grave to include both the ashes of his late wife and his own ashes when the time comes [11].

The Chancellor determined that this was an appropriate case in which to grant a faculty and noted that  the existing memorial stone would be moved to the new location [12]. [Re St. Radegunda Grayingham [2023] ECC Lin 2] [Top of section] [Top of page].


Churchyards and burials

Designation of closed churchyard

See Privy Council Business.

Reservation of grave space

Re Caton-with-Littledale St. Paul [2023] ECC Bla 6 The petitioners aged 66 and 78 sought a faculty authorising “the reservation of a double graves pace (to be designated by the church) for the full burial, when their time comes, of their human remains, one on top of the other” [1].  The vicar and PCC did not support this application, or the reservation of further graves generally. Hodge Ch. noted that according to the section of the petition signed by the vicar, the present churchyard will be full in between 5 and 7 years, but possibly as many as 10 years. However, there is further land belonging to the church, currently in use as a recreational area, that is available for consecration when the present churchyard is full which would enable burials to continue for approximately 50 years [3]. However, five days before the presentation of the petition, the PCC It decided that “[it would] not support new faculties except for those of existing graves. A vote was taken that supported this action” [4].

“[9]. With respect to the PCC meeting on 31 July 2023, and the PCC’s decision on grave  spaces, the petitioners say that they have spoken to the vicar and they now understand that: (a)  more graves spaces will be made available at some future date, and (b) the issue is essentially one  of timing: “i.e. not now at the July meeting; also (c) when, or if, to allow the few remaining spaces to be reserved  which may influence or compromise (a) & (b)”. From their perspective, the petitioners would wish to  have “a degree of certainty” that a space is available for them within the churchyard when their time  comes…The petitioners say that they  have no preference as to the siting of their grave within the churchyard”.

Hodge Ch. considered the principles governing the determination of a petition to reserve a grave space in his earlier judgments Re St. Mary Newchurch-in-Pendle [2023] ECC Bla 5 and in Re St Mary, Thame [2022] ECC Oxf 2 which we reviewed in Time limited burial plot reservation. On the facts of this particular case, the Chancellor determined that it was appropriate to grant a faculty, but to limit it to a period of seven years, with permission to apply (by letter) within the last year to extend beyond that time. [Re Caton-with-Littledale St. Paul [2023] ECC Bla 6 [Top of section] [Top of page].


Privy Council Business

15 November 2023

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in St Anne’s Churchyard, Ambleside, Cumbria.

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.

The following CDM cases have been updated:

Penalties by consent

No new penalties by consent.


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.

House of Bishops’ Declaration on the Ministry of Bishops and Priests, St Barnabas & St Paul with St Thomas the Martyr, Oxford: Report by the Independent Reviewer


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. 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.


Other legal issues

Lydbrook PCC v Forest of Dean DC Lydbrook Parochial Church Council sought an order requiring the District Council (“DC”) to fulfil its liability to maintain Lydbrook’s closed churchyard. The DC sought to have the proceedings struck out because (1) proceedings for judicial review were the appropriate way of dealing with this type of matter; or (2) there was no prospect of success, or (3) the claimants had not agreed to the matter been dealt with through alternative dispute resolution. The judge determined that it was appropriate for the matter to be dealt with by the County Court. The applications to strike out and for summary judgment were dismissed. To avoid substantial costs, the judge ordered a stay of proceedings in order to allow the parties time to resolve their dispute. [Lydbrook PCC v Forest of Dean DC [2004] GCC ] [Top of page].


Links to other posts

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

Reordering, extensions and other building works

Facts not “visions” required for faculty, (28 November 2023).

Churchyards

Guidance on Churchyard Regulations after Exhall, (20 November 2023).

General/Miscellaneous

[Top]


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 – November" in Law & Religion UK, 30 November 2023, https://lawandreligionuk.com/2023/11/30/ecclesiastical-court-judgments-november-3/

 

5 thoughts on “Ecclesiastical court judgments – November

  1. Two or three months ago I expressed an interest in the topic of the interment of fonts. I have lost the original relevant email but you may be interested in the attached report that I have made to our PCC at St James, Wield.
    Psst, want a font?
    Olivia Mills’ history of Wield says simply “the font in St James’s church was dug up in a garden in the close of Winchester Cathedral”. I was therefore quite intrigued when, by chance, I discovered a report in the Hampshire Chronicle published on 6th August 1893 which reported that a font that had previously been dug up in a garden of the Dean in the close of Winchester Cathedral had been installed in the Cathedral. The report was detailed. The font was Norman, made of Purbeck marble, and had originally come from the church of St Mary Kalendar in central Winchester. When that church was deemed to be redundant at the end of the English Civil War the font had been broken up and buried in the cathedral close. When it had been dug up the Dean had repaired it, fixed iron rods in the four corners, and used it for horticultural purposes.
    The font in St James has clearly been repaired and a hole had been plugged in each corner. What a coincidence. I went to the Cathedral Archivist and showed him this newspaper report but he denied any knowledge of a Norman font saying very reasonably that they had a world famous Tournai marble font already in 1893. I then gave up although it seemed obvious that we had that font.
    Enter Jonathan (Sherlock) Enderby who was intrigued and carried on the investigation. After discovering much of the detail of our church in Victorian times he finally found in the Cathedral records for 1899 a hand-written note saying that “the Norman font from the North transept has been given to the church at Wield by request on the Vicar.”
    So we know now that we have a Norman Purbeck marble font that, after a rather dodgy passage, has come to rest in our little Norman church.
    Brian Collins

  2. Lydbrook PCC v Forest of Dean DC [2004] this judgement was in 2004. If anyone is curious as to the eventual outcome it was reported by the Church Times on 02 November 2006.
    “The District Council unsuccessfully disputed the claim and also challenged the PCC’s right to bring the action. But District Judge Thomas ruled that the “PCC [was] clearly the correct body to bring the proceedings”. After several further court hearings, the works to be carried out by the council were confirmed.

    They included remedial work to retaining walls, resetting loose and leaning crosses and headstones, providing a new land drain, removing soil which had been contaminated with broken glass, and providing a hard surface for the main paths.

    A churchwarden, Brian Morgan, said that the PCC very much regretted the need for legal proceedings, “the more so given the fact that the £16,000 which the District Council has been ordered to pay in costs has done nothing to improve the churchyard”.”

    • Yes, I was aware of the date but it was one of the cases circulated by the Ecclesiastical Law Association earlier this month, and is currently #7 on the “Judgments Recently Received” section of the ELA web site. Many thanks for the background information. DavidP

  3. Pingback: Ecclesiastical court judgments – November - 365 Political News

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