Recent consistory court judgments – February

This month’s round-up of ecclesiastical cases

Overview

Our post on Re St. George Hanworth picked up on the theme of the incorrect use of the term “vexatious” by Nicky Morgan, the Secretary of State for Education, and explored the practicalities and limitations of the legislation when applied to ecclesiastical cases initiated a vexatious litigant; there are currently 190 so-named persons on the list published by the HM Courts & Tribunals Service.

Whilst Re St Dunstan Mayfield was a routine reordering case, it was notable in the Chancellor’s strong criticism of the “foolish” action of the inspecting architect: “Any inspecting architect holding themselves out as competent to deal with church buildings would be familiar with r 8.3 of the Rules” [2]. This is important since in general, chancellors advise incumbents and PCCs to be guided by professionals such as architects; in Re St Aidan Skelmanthorpe Chancellor Hill had earlier advised [12]:

“This unsatisfactory state of affairs perhaps reinforces the importance for parishes in taking the driving seat when consultation is taking place. The inspecting architect (who ought to be experienced in these matters) can coordinate the process or the PCC could appoint a project manager to steer through both the planning and the faculty process.”

Clearly a case of Quis custodiet ipsos custodes? By contrast, in Re Blagdon Cemetery [2002] Fam 299, errors relating to burials in the wrong plot in a cemetery or in a space reserved for someone else in a churchyard are described as mere “errors in administration”, (“classis ‘mistake’ cases” in Re Woolwich Cemetery [2016] ECC Swk 2), rather than a lack of attention to detail for a quite basic procedure by professionals in the industry.

Links to the latest CFCE determinations made at the meeting on 21 January 2016 are available in an earlier post.

Consistory court judgments

This month’s published judgments have included: Reordering; Exhumation; and Churchyards.

Reordering

Re St Mary Magdalene Davington [2015] Steven Gasztowicz Dep. Comm. Gen. (Canterbury) The Petitioners sought a re-ordering of the Church to include the provision of a meeting room, servery, toilet facilities at the west end, gallery above the proposed meeting room, and upgrading of the heating and lighting installations. There was one formal objection on the grounds of damage to the architectural and historic interest of the Grade I listed church. Proposed works not considered as serious harm and outweighed by public benefit. Faculty granted. [Link to judgment] [Top of Page]

Re St Dunstan Mayfield [2016] ECC Chi 1 The petitioners sought a faculty for a re-ordering of the chancel and north aisle, to include work to the floor, the removal of the choir pews and the relocation of some solid oak screens from the chancel to improve sight lines. The amenity bodies, for the most part, did not support the removal of the choir pews and relocation of the screens. The Chancellor found that, on balance, the public benefit would outweigh the likely harm that would ensue from the proposals and that it was therefore appropriate that a faculty should issue. [Link to judgment] [Top of Page]

Re St Michael Crambe [2015] Peter Collier Ch. (York) The Rector and churchwardens petitioned for a faculty for the installation of KovoSchmidt heated pew runners to all pews; the DAC supported the proposal although “the [diocesan] Heating Adviser suggested that these may not be especially effective, but they would certainly be harmless and should have no adverse effect on the fabric” [9]. Four letters of objection were received from former PCC members who had resigned in February 2015 in relation to dampness in the church; the following May, the PCC unanimously approved the proposal for the heaters [8]. In addition to the alleged dampness issue, one of the complainants stated that the proposal limits other options by committing the parish to retaining the pews when the future of the building might be better served by their removal. An earlier initiative by the complainants had sought to remove all the pews so the church could be used as a community centre.

The Chancellor found that there was no substance in the objections raised by any of the objectors in their letters and granted the petition [11]. However, as an aside he commented:

“12. It is a shame that the raising of the objection produces the inevitable outcome that the petitioners will have to pay the costs of the petition as it is now classed as an opposed petition and the costs of such have to be paid for by the parish rather than the DBF.

13. I have observed on other occasions previously but would underline again that it may be appropriate that Incumbents and PCCs when explaining re-ordering plans to their congregations should explain the process including the fact that any objections raised in response to the Public Notice will inevitably cause significant delay, may add to the building costs of the project and will almost certainly mean that the parish will have to pay additional registry costs.”

These observations would appear to be of general application. [Link to judgment] [Top of page]

Re St Botolph Stow Bedon [2016] ECC Nor 1* A petition was sought for re-ordering project including the removal of all of the nave pews and their replacement with chairs; the installation of a new kitchenette and chair store at the west end of the building; the relocation of the font; and replacement of the dangerous wooden pew platforms with a simple engineered timber floor. The Chancellor directed that the public notices were reissued as the initial ones did not adequately describe the proposed works. Although approving the works, the DAC ‘s notice indicated that they would affect the special architectural or historic interest of the church. All three amenity societies were opposed to the changes, and a public meeting of parishioners was strongly in favour of the status quo.

The Chancellor refused to grant a faculty: “… the circumstances and needs of the parish relied upon at present do not justify the changes sought because those needs can be met with a less harmful scheme.” However, she stayed the proceedings six months to enable the petitioners to submit alternative proposals. [Link to judgment] [Top of Page]

Re St Andrew Framingham Earl [2016] ECC Nor 2 The petitioners sought a faculty for the replacement of the heating system in the Grade I listed church and the removal of Victorian nave pews and replacement with chairs. One parishioner and the Victorian Society raised objections with regard to the efficiency of the proposed panel heater, and the aesthetics of replacing the pews with upholstered chairs. With regard to the latter, the Chancellor observed: “It is clear that the removal of the pews and their replacement with chairs would have a significant impact upon the aesthetics of the interior of the nave. Nevertheless, that does not mean that it would necessarily cause harm to the church as a building of historic or architectural significance”.

The Chancellor decided that public benefit resulting from the proposals outweighed the harm which would be caused. Given the significant concerns of the CBC and the Victorian Society about the type of chair proposed, and the inability of the DAC to make recommendations at the present stage, the Chancellor encouraged the petitioners to try to agree the type of the chair with the DAC; once an agreement has been reached, the matter is to be referred back to the Chancellor for approval. She also directed that until such approval was given, the pews were not to be moved. [Link to judgment] [Top of page]

Re Christ Church West Wimbledon [2016] ECC Swk 3

The court considered two petitions. The first related to the construction of a new church hall linked to the south porch; removal of internal draught lobby; external lighting; tree felling, landscaping and signage. The second sought the necessary authorisation for the Petitioners (the Incumbent and Churchwardens) to enter into a contract with the Diocese of Southwark for the transfer of a small piece of land to the south west of the church building which was required for part of the proposed new structure. The Victorian Society objected to the proximity of the new hall to the Grade II church, [“inadequate ‘breathing space’”] but was not a party opponent and was not present on site visit. The petitioners’ correspondence with the Society “lacked tact” and its architects exhibited an “inaccurate and partial” understanding of the Society’s role. The Deputy Chancellor determined that a Faculty should be granted. [Link to judgment] [Top of page]

Exhumation

Re Coventry Road Cemetery Bedworth [2016] ECC Cov 1

The cremated remains of the petitioner’s father had been interred in the Coventry Road Cemetery, Bedworth, in 1986; in 2015 the cremated remains of the petitioner’s mother was interred in one of a group of three graves previously reserved for members of the family in the Heart of England Cemetery in Nuneaton. After considering the judgment in Re Blagdon [2002], the Chancellor determined that it was appropriate to grant a faculty to allow the remains of the petitioner’s father to be exhumed and then reinterred with the remains of his wife in one of the three family graves. His remains will be united with those of his wife and there will be a group of graves providing for the interments of three generations of the family alongside each other. [Link to judgment] [Top of page]

Churchyards

Re St George Hanworth [2016] ECC Lon 1* The Parochial Church Council applied for an injunction to prevent the London Borough of Hounslow from developing a piece of land near the church, claiming that the land was consecrated, and historically had been part of the churchyard, notwithstanding that the Borough Council and its predecessor council had been registered with absolute title in respect of the particular piece of land for 69 years. The Chancellor dismissed the application. [Link to judgment] [Link to article] [Top of Page]

Re Holy Trinity Hull [2015] Peter Collier Ch. (York) The proposals were for a major re-ordering of the churchyard, which included the removal of a section of the 19th century churchyard wall included in the Grade I listing of the church, the creation of a piazza with seating and a new parking area. The reason for the proposed removal of a section of the wall was to open the church up to the adjoining public square, so as to allow for greater community use of the square and churchyard. The Victorian Society objected strongly to the removal of the wall, but did not wish to be a party opponent. Looking at the wider context of a growing church and a developing and culturally growing city, [Hull has been nominated as the UK City of Culture for 2017], the Chancellor determined that the significant potential benefits of the scheme to the church and community would outweigh the moderate loss which would be caused by the development. [Link to judgment] [Link to further information] [Top of Page]

Re St. Helen Welton [2015] Peter Collier Ch. (York) A parishioner had died and her cremated remains were interred in the churchyard extension. The family applied to have a “desk style memorial” placed over the grave. Being informed that such a memorial would not be allowed under the Churchyards Regulations, the family agreed to a flat stone. By mistake the stonemason prepared a stone according to the original specification. On realising his error, the stonemason offered to replace the stone with a flat stone, but the family would not allow him to do so. The Archdeacon applied for a faculty to have the desk style memorial replaced with a flat one. The Chancellor determined that it was appropriate to grant a faculty to the Archdeacon. [Link to judgment] [Top of Page]

Re All Saints Ashwicken [2016] ECC Nor 4 In December 2015 the Chancellor granted a Faculty reserving a grave space for the petitioners, who were not residents in the parish. The Chancellor placed a limit of 12 years on the reservation, as it was expected that the churchyard would be full within 12 years, and the Chancellor did not wish to prejudice the rights of burial of parishioners and others with a right to be buried in the churchyard who might predecease the petitioners. The Faculty invited the petitioners to make written representations if they felt a long period than 12 years should be allowed. Upon considering written representations from the petitioners, the Chancellor declined to grant a longer period of reservation. [Link to judgment] [Top of page]

Re Caister Parish Cemetery [2016] ECC Nor 3 The Caister Joint Burial Committee proposed to remove and relocate all memorials from an old section of the parish cemetery, to allow for an ordered reuse of that area for further burials. There were objections from two relatives of persons buried in the 1890s. The Chancellor determined that the petitioners’ need to clear an area for reuse must outweigh the wishes of the objectors, but directed that the two memorials concerned should be carefully relocated to the boundary of the cemetery. [Link to judgment] [Top of page]

Re St Mary Prestwich [2016] ECC Man 1* The Chancellor refused to grant a faculty to allow kerbs to be placed around a grave. Kerbs were not permitted under the Diocesan Churchyards Regulations, and the Chancellor could find no strong reason to depart from that policy in relation to this particular application. [Link to judgment] [Top of Page]

Cite this article as: David Pocklington, "Recent consistory court judgments – February" in Law & Religion UK, 26 February 2016, http://www.lawandreligionuk.com/2016/02/26/recent-consistory-court-judgments-february/

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