Review of the ecclesiastical court judgments during December 2023
Four consistory court judgments were circulated in December 2023 and featured Church Treasures, Exhumation, and Churchyards. Also Privy Council Business.
Church Treasures/Sale of Paintings/Loans/Memorials
Re St. Thomas the Apostle Killinghall [2023] ECC Lee 4 The petitioners sought: i] a confirmatory faculty in respect of work undertaken to various trees in the churchyard (crown lifting or pruning to three beech trees, two lime, and one each of Lawson Cypress, Irish yew, and Holly), and; ii] a prospective faculty for the disposal by sale of two paintings. The first uncontroversial component was approved. On the second, “the Diocesan Advisory Committee and the Church Buildings Council [had] the misfortune to find themselves in disagreement” – the DAC commended the sale, the CBC did not [1]. Hill Ch. observed:
“[4]. There is aways a subjective element as to when the Court should (or indeed must) direct consultation with Historic England, the local planning authority and the amenity societies or seek the advice of the CBC.
Given the monetary value of the two paintings (estimated professionally to be £125-£150 for each}, the Chancellor considered whether, in hindsight, his direction to the CBC was over cautious in this case. However, “…[w]here consultation and advice is concerned the Court should take the wisest course, which is to act ex abundanti cautela” [4].
It was noted that care must be taken to differentiate between the disposal of church treasures, properly so described, and the disposal of church property generally, (Re St Mary Magdalene, South Bersted (3 September 2014, unreported), Chichester Cons Ct, and Re St. James the Great Flockton [2016] ECC Lee 4 , cited).
On the basis of the totality of the information available to the court, Hill Ch. indicated that the rule 9.6 referral was probably unjustified and inappropriate. With regard to the conflicting assertions as to whether the two paintings were “church treasurers” or not [15, 16], neither could properly be categorised as “an article of special historic, architectural, archaeological or artistic interest”, nor should they be classed as church treasures. Hill Ch. concluded:
“[16]. Both the DAC and the CBC have advised. The Court lacks any inherent expertise (though it has considerable experience) in matters of historic, architectural, archaeological, or artistic concerns. It relies on the collective expertise of, amongst others, these two statutory bodies. It is rare for the advice of the DAC and CBC not to coincide, and when it does the Court must consider the dissonance with great care.
In this instance, I have concluded that I prefer the advice of the DAC to that of the CBC. I consider that the DAC’s local knowledge and pastoral concern give it an advantage over the more distant desktop assessment carried out by the CBC under its delegated advice policy.
[17]. These paintings have a very modest value, and their real connection with the church is tenuous. There are no local objections to the sale. They have been stored for several years and are unlikely ever to be put on display in the future. They are deteriorating where they are currently kept and will continue to deteriorate even if re-hung on the walls of the church. There seems to be no reason to retain them and every reason to dispose of them to a collector or restorer.
[18]. All factors militate in favour of the grant of a faculty for the disposal by sale of the two paintings and I so order.”
[Photographs of the two paintings are included in a Church Times article.]
[Re St. Thomas the Apostle Killinghall [2023] ECC Lee 4] [Top of section] [Top of post].
Re Spalding Cemetery [2023] ECC Lin 3 The petitioner who is of Polish origin sought to exhume the ashes of her mother’s ashes which were buried in 2013 in the consecrated area of the cemetery in Spalding; her intention is to have them interred in the grave of her father in Poland, according to his wishes [1, 2]. There are no relatives left in England and she now intends to move back to Poland on a permanent basis. The rest of the family live in Poland and they join with her in seeking this exhumation so they can have both of her parents interred together in Poland close to where they all live [2].
Mgr. Boguslaw Starus who has responsibility for the cemetery in Poland gives his consent for the reinterment to take place and urges positive consideration of the request for exhumation. He confirms that this request is on behalf of the Polish family [2]. The petition is supported by the Vicar of Spalding [3], and the undertaker in UK has confirmed that although there may be some practical difficulties given the passage of time, they are confident they can transfer the remains into a new casket and recover them if exhumation is permitted [4].
Applying Re Blagdon Cemetery, the Bishop Ch. noted that the creation of a family grave was the basis of the Petitioner’s application [8(v)] and determined the reinterment would be an expression of their family unity; he took into account that the Petitioner had cared for her mother’s grave in Spalding over the last 10 years and was returning permanently to Poland, where the whole family will be then. [Re Spalding Cemetery [2023] ECC Lin 3] [Top of section] [Top of post]
Re Lonan Cemetery [2023] EC Sodor 2 Mr John Roche died sometime between 19th December 2012 and 12th April 2013. His body was discovered by fishermen aboard the fishing vessel “The Anzac” on the latter date about 10 nautical miles north of Ramsey. A year later, still unidentified, his body was buried in Lonan Churchyard. A headstone was provided by a local charity [1].
It subsequently proved possible to match genetic material held in relation to the body with that of other members of Mr Roche’s family [2]. Given the fact that all his family are resident in either County Wicklow or County Waterford, the Petitioner, the partner of the late John Roche, acting on behalf of their son, wished to have his remains returned to Wicklow where he lived with her and their son and for those remains to be reinterred in consecrated ground in St Gabriel’s Catholic cemetery in Arklow, County Wicklow. The other members of the family consented to this happening as did the Lonan Burial Authority and Manx Care (the Island’s public health service provider) [3].
The High Bailiff, in his capacity as the Coroner of Inquests, has opened and adjourned an inquest and has given authority for the removal of the body from the Island to permit its reinterment [3]. The Vicar General and Chancellor noted:
“[5] The late Mr Roche was not buried in Lonan because of any wish of his, nor indeed because any member of his family wished it. He was buried there as an act of kindness and respect on the part of the Manx community: the funeral in 2014 was attended, following an appeal on local media, by members of that community who did not know who he was, as a matter of respect, and the service was conducted by a local Methodist minister as an act of generosity”.
He considered that there were exceptional circumstances which justified the grant of a faculty [6].
[Re Lonan Cemetery [2023] EC Sodor 2] [Top of section] [Top of post]
Re Holy Trinity and St. Jude Halifax [2023] ECC Lee 3 This case concerns
the unauthorised felling and removal of two trees in the churchyard of Holy Trinity and St Jude, Halifax [1]. A faculty authorising the felling was issued on 13 June 2023; this also made provision for what was termed “compensation planting,” the details to be agreed with the Archdeacon. However, the additional party undertook work at the churchyard on Thursday 13 July in the course of which their workers felled two trees which were not covered by the faculty. Mr Luke Naylor, the ‘owner’ of the additional party (a limited company) admitted to his error immediately and offered to plant replacement trees for those removed unlawfully [4[ to [7].
The petitioners sought a confirmatory faculty, authorizing retroactively the removal of the two trees felled in error; the contractor was not a co-petitioner nor was any material from the contractor (or the owner personally) lodged with the petition. Accordingly, the Court directed that Meristem Arboriculture and Forestry Limited be made an additional party and file evidence [8, 9].
The Chancellor expressed concern that the contractor asserted that he had been unfamiliar with the faculty process, yet expressed the hope that his company’s unlawful activity would not reflect badly on any future church-related work it might do [7]. Citing Re All Saints Buncton [2018] ECC Chi 1 at [80], Hill Ch. said:
“[12]. It cannot be restated often enough that those whose business includes work on church buildings or in churchyards of the Church of England must be familiar with the process and procedures of the faculty jurisdiction and have a firm grasp of the principle that unless a faculty (or other authorisation) has been obtained, any work done will be unlawful.”
“… contractors should always, invariably and without fail obtain a copy of the relevant faculty (or other authorisation) before they commence any works …”;
“[13]. That statement is as pertinent today as it was in 2018, and applies in the Diocese of Leeds just as much as it does in that of Chichester. Those who embark upon works on church property without reading and digesting the content of the relevant faculty do so at their own peril, and must live with the consequences, sometimes draconian, that can follow.”
Although he noted that Mr Naylor had introduced additional procedures to eliminate a repetition of the unfortunate occurrence, he remained troubled by his self-confessed lack of familiarity with the faculty jurisdiction. Taking into account his contrition, and the fact that the felling of the wrong trees was an accidental oversight rather than a deliberate disregard of the jurisdiction, the Chancellor determined not to place limits on Mr Naylor or his company from future work in the diocese [14].
The Chancellor granted a faculty subject to the contractor planting replacement trees and also paying the costs occasioned by the proceedings [15]. He added:
“[17]. This judgment does not affect any separate civil law claim which the parish may have against the additional party, whether under contract or otherwise”.
[Re Holy Trinity and St. Jude Halifax [2023] ECC Lee 3] [Top of section] [Top of post].
- Exceptional opening of a closed churchyard: St Mary and St Eanswythe Folkestone, (31 December 2023).
His Majesty the King, on the advice of his Privy Council, granted permission for burial in a closed churchyard in order to support the family in these tragic circumstances.
See also Re St. Thomas the Apostle Killinghall in which as confirmatory faculty was granted for the non-controversial work undertaken to various trees in the churchyard, viz. crown lifting or pruning to three beech trees, two lime, and one each of Lawson Cypress, Irish yew, and Holly [1].
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. Subsequent meeting took place on 26 October 2023 and 14 December 2023. The programme for 2024 is here and the next meeting will be on Thursday 1 February 2024
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
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