In a guest post, Shiranikha Herbert looks at a complex case about the proposed restoration of a war memorial.

Who is the owner of a war memorial and who has locus standi to seek the permission of the court to clean or restore a listed war memorial? Those were among the issues which had to be resolved by the Consistory Court of the diocese of Southwell and Nottingham in respect of a war memorial in the churchyard of Saint Nicholas Church, Tuxford. The memorial is Grade II listed in its own right, and the church is Grade I listed. [1] [7]

In Re Tuxford War Memorial [2025] Ecc S&N 1, the memorial was in respect of the men of Tuxford lost in the First World War. It was unveiled in November 1921 by a member of the British Legion and dedicated by the Archdeacon of Newark. After the Second World War, five names of those who died in that conflict were added. [3] [5]

The petitioner, Mrs Emma Griffin, a private individual, sought a faculty to undertake work on the war memorial, mainly to clean it up and repaint the lettering so as to make it readable. The Diocesan Advisory Committee did not object to that work being approved by the court. [1] [12]

Ockelton Ch said that the petitioner’s intention to undertake the proposed work raised separate issues in three wholly separate fields of law. First, the memorial was governed like any other property by the general law concerning ownership and prohibiting interference with ownership and the rights of ownership, carrying civil and criminal sanctions. Second, as the memorial was listed, the law relating to work on listed buildings applied to it. Third, as the memorial was on consecrated land in the churchyard it was governed by ecclesiastical law, in particular the faculty jurisdiction. Therefore, the petition had to comply with the procedure applicable in ecclesiastical law. But ecclesiastical law was part of the law of the realm, and the Consistory Court had to have regard to the other relevant aspects of the law. [14]

On the issue of ownership, the general position was that nobody was entitled to interfere with property that they did not own, except with the consent of the owner. The petitioner did not own the memorial and did not say that she had the consent of the owner. Even if a faculty for the work were to be granted, if she undertook the work without the consent of the owner, she would be at risk of a claim for damages, or possibly a charge of criminal damage. Those principles applied even if the property was considered a community or cultural asset. If an important listed building was falling into disrepair, even the local authority could not simply move in and undertake work on it, except for emergency work to stave off danger. The authority could issue notices to compel the owner to do the work; or the authority could by purchase, compulsory or otherwise, become the owner itself. But it could not simply take it upon itself to interfere with the rights of the owner as owner.  [15]

The ownership of monuments and memorials was often particularly difficult to ascertain. That was because, unlike most things attached to a building or a piece of land, they did not thereupon fall into the same ownership as the building or the land. A memorial remained the property of the person or persons who erected it while they were alive, and after their death, the memorial belonged to the heirs at law of the person or persons commemorated. If a person who had no claim to the ownership of a monument intended to do work on it, the starting point was to discover the owner, if that could be done. Although the law was of ancient origin, it applied today because section 66(5) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 so provided. That was not obscure or antique law.  [16]

At the time the petition was first put before the Consistory Court, accompanied by the Diocesan Advisory Committee’s endorsement, the question of ownership had not been investigated at all. It was simply a request by an individual to make alterations to property she did not own and had made no investigations into who did own it. [18] [19]

In regard to the law relating to listed buildings, the proposed changes were not likely to affect the character of the memorial as a building of special architectural or historic interest, so the Diocesan Advisory Committee was not obliged to consult the local planning authority. [20]

In regard to the ecclesiastical jurisdiction, the process of applying to the court and obtaining, by way of the judgment of the court, a faculty or ecclesiastical permission to undertake the work proposed was not a routine process. It required that there be a petition by a person with sufficient interest in the matter, and the procedural rules had to be followed. If reasonable efforts had not been made to identify the owner and the owner was unknown, there could be no faculty unless the court was satisfied that the matter was of such urgency that it would be unreasonable to require the petitioner to seek the owner’s consent: see section 66(1)(a), (b) of the 2018 Measure.That was intended to cover cases where there was a risk of danger if the work was not done promptly. [21] [22]

It appeared that the cost of the memorial had been funded by individual donations and subscriptions, raised on various occasions up to and including the dedication service in November 1921, after which there was still a small deficit. There must have been some sort of organising committee, but no records had come to light and there was no reason to think that there was any corporate or continuing existence. The petitioner and others helping her had done what the 2018 Measure made necessary by making reasonable efforts to find the owner of the monument, and despite those efforts, the owner could not be found. The Consistory Court therefore had jurisdiction to grant the faculty. [28] [30]

The grant of a faculty depended on proper process. The petition was not made by the incumbent, the PCC, any official body or the owner of the memorial. The petitioner acted personally in the proceedings although she was a district councillor and had the support of the Diocesan Advisory Council. [31]

There were limits on the rights of private individuals to seek a faculty. The general rule was that a suit for a faculty could be brought by an individual only if he or she had a “personal interest” in it. It was not the law that anyone could confer a sufficient interest upon himself to be a litigant in a consistory court merely by deciding that he wanted to do something to a church or churchyard in a diocese: see Re St Luke’s Chelsea [1976] P 295, 305. [32]

The question of locus standi to bring proceedings to assert a public right or remedy a public wrong had been the subject of considerable development in secular public law, and it was sometimes suggested that the ecclesiastical courts should follow the same principles. True, many of the ecclesiastical authorities considered that a person resident in a parish did have sufficient personal interest, in any event, to be a party opponent in faculty proceedings. Nevertheless, the role of a petitioner was a particular one, and the considerations were different from those in public law proceedings in the secular courts.  [33]

Not only was the petitioner responsible for all the court fees, there being no general rule in the ecclesiastical courts that a successful petitioner did not have to pay them, but the court’s procedure, prescribed by statute, imposed further duties on a successful petitioner, going well beyond the position of a successful claimant in public law who obtained an order quashing an unlawful decision or even a mandatory order against a public authority.  [34]

The faculty, if granted, would authorise the petitioner to carry out the works, would require her to ensure that any contractor was supplied with a copy of the faculty before work commenced and would require her to provide sufficient supervision to ensure that the work was carried out only in accordance with the faculty and at the end to certify that it had been.  [35]

The Chancellor had been anxious to ensure that the petitioner was fully aware of the practical, legal and financial responsibilities she had assumed. The Registrar had had an entirely satisfactory response to the inquiries made. Further, the PCC, although unwilling to initiate the process for restoration of the memorial, indicated that they had no objection to it being promoted by the petitioner, and there was a level of support from the secular authorities in regard to covering all the costs.  [35]

In those circumstances, and because in the absence of any action by either the PCC or the District Council itself, it was difficult to see that the memorial could be restored, the Chancellor concluded that the petitioner had sufficient standing to bring the petition in her personal capacity.  [36]

The faculty was granted subject to certain conditions as to the cleaning. No work was to commence until the local planning authority had definitely advised in writing that listed building consent was not required.  [49]

Shiranikha Herbert

Cite this post as: Shiranika Herbert, “Restoring a listed memorial  Re Tuxford War Memorial” in Law & Religion UK, 22 April 2025, https://lawandreligionuk.com/2025/04/22/restoring-a-listed-memorial-re-tuxford-war-memorial/