Trees seldom feature in the deliberations of the consistory courts, and since 2014 L&RUK has only reviewed 23 judgments in this area – just 1.9% of the total[*]. In June 2024, the Ecclesiastical Law Association (ELA) re-circulated Re St. Kenelm Upper Snodsbury [2001] Worcester Const. Ct., Mynors Ch on the basis that it was the first consistory court judgment since changes were made under the Faculty Jurisdiction Rules 2000 (SI 2047); this recognized that petitions concerning works to trees were quite different from those relating to building works and provides a special procedure accordingly; Shirani Herbert has reviewed this judgment in Balancing heritage and necessity: Consistory Court jurisdiction in managing churchyard trees.
This post includes summaries of Re St. Kenelm Upper Snodsbury and these twenty two subsequently reported cases which have been posted on L&RUK over the period 2015 to present; in descending chronological order, these are:
Re All Saints Isley Walton [2023] ECC Lei 4 Following a complaint in 2022 from a local resident, in an earlier judgment the former Chancellor, determined whether the two trees felled in the churchyard with the approval of the archdeacon should have been the subject of a faculty application. A local authority tree expert had recommended that one tree should be felled and the other pollarded. de Mestre KC decided that the felling of the first tree was permissible with the archdeacon’s approval and granted a retrospective faculty; however the felling of the second tree should have required a faculty, Re All Saints Isley Walton [2022] ECC Lei 1. For this determination, she was informed by expert reports on dealing with the two tree stumps, a recommendation on the planting of replacement trees, and advice on the effect of the stumps on the nearby wall and memorials.
In the 2023 judgment, the Deputy Chancellor, Rees KC considered the information that had been submitted, and requested further reports from the Parochial Church Council and from the church architect before requiring further action. [Re All Saints Isley Walton [2023] ECC Lei 4] and [Re All Saints Isley Walton [2022] ECC Lei 1].
Re St. Nicholas Kingsey [2023] ECC Oxf 5 The Chancellor granted a faculty for the removal from the churchyard of a mature lime tree, due to a risk of subsidence damage to an adjoining property, as advised by the arboriculturist retained by the PCC. The faculty was conditional on at least one replacement tree, of a species and at a location in the churchyard, to be approved by the archdeacon planted during the current, or the next, growing season after the felling of the lime tree. [Re St. Nicholas Kingsey [2023] ECC Oxf 5]
Re St. Andrew Sonning [2023] ECC Oxf 6 The deputy churchwarden applied for a retrospective faculty in respect of the felling of a lime tree in the churchyard, which had become dangerous. The Chancellor was satisfied that the petitioner had shown a sufficiently good reason for the felling of the tree, and he granted a faculty, subject to a condition, inter alia, that a replacement tree should be planted. [Re St. Andrew Sonning [2023] ECC Oxf 6]
Re Holy Trinity and St. Jude Halifax [2023] ECC Lee 3 The incumbent and churchwardens sought a confirmatory faculty to approve the felling of the two tree not covered by an earlier faculty. Hill Ch. was concerned that the contractor had been unfamiliar with the faculty process; he emphasised the need for those carrying out works in churchyards to be conversant with the requirements of the faculty jurisdiction. The Chancellor granted a faculty subject to the contractor planting replacement trees and also paying the costs occasioned by the proceedings. [Re Holy Trinity and St. Jude Halifax [2023] ECC Lee 3]
Re St. Joseph and St. James Follifoot [2022] ECC Lee 1 The Chancellor granted a faculty of the felling and root removal of a holly tree, and the repair of a collapsed section of the churchyard wall, subject to replacement planting in the churchyard. [Re St. Joseph & St. James Follifoot [2022] ECC Lee 1]
Re St. James Southbroom [2022] ECC Sal 2 A faculty was sought for felling twelve hornbeam trees lining the path to the south porch of the church; Arlow Ch. considered that benefits of the proposal outweighed the loss of amenity, and accordingly granted a faculty. [Re St. James Southbroom [2022] ECC Sal 2]
Re All Saints Isley Walton [2022] ECC Lei 1 In 2020, a local authority tree expert had recommended that one yew tree should be felled and the other pollarded. The Parochial Church Council decided that both trees should be felled and replaced with yews; but subsequently, one tree was felled and the other pollarded. A formal complaint was made that the Archdeacon had erroneously allowed the felling of the first tree pursuant to List B of the Faculty Jurisdiction Rules. The second tree was later felled.
De Mestre determined that the first tree had been in rapid decline due to decay, that it was appropriate for it to be removed and for the Archdeacon to deal with the matter under List B; the second tree was dying and/or dangerous, and there would have been a case for the Archdeacon granting a List B consent. She granted a retrospective faculty for the removal of the trees, subject to conditions. [Re All Saints Isley Walton [2022] ECC Lei 1]
Re St. Mary the Virgin Middleton-in-Teesdale [2021] ECC Dur 1 The Quinquennial inspection report had advised removal of the trees due to the rainwater issues – dropping a large amount of debris on the roof on the north side of the church, choking gutters and down-pipes, and causing rainwater to cascade down the wall. The Chancellor found that there was a convincing case for their removal and granted a faculty. [Re St. Mary the Virgin Middleton-in-Teesdale [2021] ECC Dur 1]
Re All Saints Friskney [2021] ECC Lin 5 The Petitioner, the Chair of the Friskney Parish Council, applied for an injunction under FJR rule 16.2 to prevent the publican of The Anchor Inn from: (i) lopping or felling any further trees demarcating the boundary between the Anchor Inn and the churchyard of All Saints, Friskney, other than normal tree maintenance and (ii) erecting a replacement boundary structure to demarcate the boundary with the churchyard that has not first been approved by this court and (iii) no further steps are taken to infill the dyke on the boundary of the curtilage of the Anchor Inn and the churchyard [1].
In April 2020, the Chancellor had granted an interim injunction, subsequently renewed, on the application of the Parish Council, who were responsible for maintenance of the churchyard. He gave the PCC time to make representations regarding the boundary, after which the Chancellor would make a final order. If the PCC wished to erect a fence in due course, they would need to apply for a faculty. Re All Saints Friskney [2021] ECC Lin 5]
Re St. Mary East Leake [2021] ECC S&N 1 The Chancellor determined that there were exceptional factors to justify the grant of a faculty for exhumation. The canopy of a cypress tree had grown over the grave, leaving only one metre clearance above the grave; the area around the grave was overgrown; and the grave was likely to be affected by the tree’s roots. [Re St. Mary East Leake [2021] ECC S&N 1]
Re St. Mary Chithurst [2020] ECC Chi 1 The Parish Council sought to fell an ash tree which was suffering from ash die-back, on the grounds that the disease might cause the tree to become dangerous within the next few years. Chancellor was satisfied that the petitioners had made a good case for the felling of the tree and granted a faculty. [Re St. Mary Chithurst [2020] ECC Chi 1]
Re St. Mary Haddiscoe [2020] ECC Nor 1 The Chancellor decided that the preservation of the tomb in situ was more important than the preservation of the holly tree. He also agreed to the removal of the ash tree. He also required to petitioners to take expert advice about more modest proposals for pruning the two other holly trees. [Re St. Mary Haddiscoe [2020] ECC Nor 1]
Re St. Edmund Fraisthorpe [2019] ECC Yor 1 A faculty was granted for felling two sycamore trees in the closed churchyard. [Re St. Edmund Fraisthorpe [2019] ECC Yor 1]
Re St. Mary Mapledurwell [2019] ECC Win 1 The Chancellor granted a confirmatory faculty re: five yew trees, a conifer and a holly had been felled without the authority of a faculty, conditional on new native trees to be planted; Chancellor Ormondroyd critical of “simply … unacceptable” actions of churchwarden. He required that the judgment was circulated to parishes. [Re St. Mary Mapledurwell [2019] ECC Win 1]
Re St. Peter West Blatchington [2019] ECC Chi 4 The churchwardens sought a faculty to authorise the felling of a Scots Pine tree. The Chancellor granted a faculty, subject to a condition that a replacement tree of a species approved by the archdeacon should be planted during the current or next growing season at a location approved by the archdeacon. [Re St. Peter West Blatchington [2019] ECC Chi 4] [Post]
Re St. James Nunburnholme [2018] ECC Yor 1 A faculty was granted for the felling of a sycamore tree in the churchyard and its replacement it with smaller suitable trees further away from the church building. Although only minor objections were raised, the petitioners were required to pay the additional costs created by this being an opposed petition. [Re St James Nunburnholme, [2018] ECC Yor1].
Re St. John the Baptist Knaresborough[2017] ECC Lee 4 A faculty was granted for replacement of bench surrounding tree in churchyard, subject to recommendations of tree expert re: removal of lower branches. [Re St John the Baptist, Knaresborough [2017] ECC Lee 4]
Re St. Leonard Monyash [2017] ECC Der 3 The Deputy Chancellor granted a faculty to authorise the removal from the churchyard of a tree which was in danger of causing damage to an adjoining property. [Re St. Leonard Monyash [2017] ECC Der 3]
Re St. John the Baptist Boldre [2017] ECC Win 1 Errors made by professionals involved re: advice to petitioners concerning tree root. Exceptional circumstances to for exhumation and re-interment; permission requires from Local Planning Authority re: severing root. [Re St. John the Baptist Boldre [2017] ECC Win 1]
Re St. Philip & St James Whittington [2017] ECC Wor 1 The proposal was for the construction of a new extension. The CBC was concerned about the impact of the proposed extension on an adjacent 700+ years old yew tree. Chancellor satisfied that a good case had been made for the new facilities, but with great reluctance he was unwilling to grant a faculty for the work as proposed, due to the risk of harm to the ‘veteran’ yew. [Re St. Philip & St James Whittington [2017] ECC Wor 1]
[In February 2020 we noted that although Re St. Philip & St James Whittington [2017] ECC Wor 1, was recently circulated this case was first reviewed in Ecclesiastical court judgments – December 2017].
Re St. Bartholomew Leigh [2016] ECC Swk 4 A faculty was granted for felling 18m tall Wellingtonia (Giant Redwood) tree and other tree works in churchyard. Local authority and DAC approval had been granted but one objector, though not party opponent. PCC considered but rejected other short-term options to reduce height. [Re St. Bartholomew Leigh [2016] ECC Swk 4]
Re Christ Church Lye [2015] Worcester Const Ct This petition had been submitted by Dudley Metropolitan Borough Council, which sought a faculty for the felling of two beech trees in the churchyard of Christ Church at Lye. Mynors Ch. reviewed the local council’s duty re: subsidence caused by trees in a closed churchyard under its control. [Re Christ Church Lye [2015] Worcester Const. Ct, Mynors Ch.
Re St. Kenelm Upper Snodsbury [2001] Worcester Const. Ct., Mynors Ch. The Chancellor granted a faculty to authorise the felling of a sycamore tree. He set out the legal and practical aspects which should be taken into account when determining an application to remove a tree from a churchyard. [Re St. Kenelm Upper Snodsbury [2001] Charles Mynors Ch. (Worcester)]
Comment
Seven of the above judgments concerned churchyards in Conservation Areas and three/four involved monuments subject to a preservation order, although these two classifications are not mutually inclusive.
[*] As of 26 November 2024 at 15:28. This figure is based upon the judgments circulated by the ELA, and includes two judgments in the case of Re All Saints Isley Walton.
For completeness, see also Re St Guthlac Market Deeping [2024] ECC Lin 2 in which the Petitioner sought inter alia the removal of a self-seeded tree from the middle of the grave, although this received no detailed judicial consideration.]
Updated: 6 December 2024 at 09:29.