Overview

In addition to the eleven consistory court cases reviewed here, the Bishop’s Disciplinary Tribunal for the Diocese of Sodor and Man handed down a judgment in relation to the Clergy Discipline Measure 2003 as it has effect in the Isle of Man. Following his 2016 Visitation, the Bishop of Chichester handed over his Charge to the Dean, Chapter and College of Canons, which is covered in our post The 2016 Chichester Visitation.

In Re St James Kidbrooke [2016] ECC Swk 13, the dilemma of achieving judicial balance where the outcome is (almost) certain raised a number of issues, and this was reviewed in Security for costs vs uncertainty of evidence in consistory court hearing. Other cases of note included permission for a “Blue Plaque” on the outside of a church, an objector who raised illogical; safety considerations, the occurrence of an unresponsive SPAB, and a wrongly dug grave.

At the end of December, in addition to a review of the month’s cases, we will publish and index with links to all of those we have reviewed during 2016.

Re-ordering, extensions & other building works

Substantial reordering

Re St. Peter Pilning [2016] ECC Bri 6 The petitioners sought a faculty for an extensive reordering of this Grade II-listed Victorian church built by Henry Crisp and consecrated in 1855. It has remained substantially unaltered since its construction. The church is part of a long-established Local Ecumenical Partnership; Anglicans and Methodists share the building and the proposed reordering is to be funded from the proceeds of the sale of the former Methodist chapel, which until its sale in 2011, was used as the church hall for St Peter’s.

Though not parties opponent, the Victorian Society and Heritage England objected to the replacement of most of the pews with chairs, replacement of the dado panelling and replacement of the stone and wood floor with new wooden flooring. The Chancellor determined that the resulting public benefit (including liturgical freedom, pastoral well-being, opportunities for mission, and putting the church to viable uses that were consistent with its role as a place of worship and mission) would outweigh any harm that would be caused by the changes. [Link to judgment] [top]

Reordering/Fonts

Re St. Mary Hullavington [2016] ECC Bri 1 The petitioners sought a faculty for an extension and major reordering of a Grade I-listed church of early 12th Century origin with 13th, 15th and 19th Century alterations, and a mixed 15th, 17th, 19th and 20th Century interior. The original proposal was for a two storey extension but, after consultation with the relevant amenity bodies the final application included a petition for; an exterior single storey extension to the north of the north aisle and north west comer to north of the tower providing a meeting space, an accessible lavatory and a vestry.

Chancellor Gau described the application [2] as “practically a model of its kind, well researched and thoughtfully produced, amended with care and thought having taking into account the representations of the amenity bodies. The one problematic area concerned the present two fonts [3]: one fourteenth century which appeared not to be used, and a Victorian font which, it was proposed should be moved to the west end of the north aisle to the east side of the organ apse, which would not be “as near to the principal entrance as conveniently maybe” as required by Canon F 1§2. Furthermore, it was also proposed to introduce a third font: “a small bowl on a tasteful moveable wooden stand” [4].

The parish was directed to the article by D Stancliffe, Baptism and Fonts [1994] 3 Ecc LJ (14) 141-148 in which the author, the then Bishop of Salisbury, expressed his disapproval of having more than one font in the parish church. As a consequence, the petitioners abandoned the introduction of the moveable font [7] and offered to dispose of the unusable 14th century font by burying it in the churchyard [8]. With regard to the latter, the Chancellor stated:

“I leave that to the discretion of the PCC. If it is attractive enough and has enough support, the unusable font may remain in the church unused as an item of historical interest. If it is not considered attractive enough or indeed popular enough, it must be buried appropriately in the churchyard”.

The Chancellor granted a faculty, notwithstanding that the font would no longer be as near to the principal entrance as it could otherwise conveniently be. [Link to judgment] [top]

Other building works, including re-roofing

Re St. Mary the Virgin Fishpondss [2016] ECC Bri 10 The Chancellor granted a faculty allowing a blue plaque to be placed on the outside of the church to commemorate Gordon Welchman, who had played a significant role in codebreaking at Bletchley Park during the Second World War, and whose father had been Vicar of the Parish. The original rectory where Welchman would have been brought up would have been the usual place for such a plaque, but this had been demolished. Informal but supportive comments were made by Historic England.

Given the unique circumstances of the case, Chancellor Gau was prepared to grant the faculty as prayed. He was satisfied that: it would not set a precedent; was capable of being significantly helpful in the mission of the church; would cause no damage to the church building; and was capable of being easily removed. [Link to judgment] [top]

Telecommunications

Re St James Kidbrooke [2016] ECC Swk 13 This interim judgment was confined to the preliminary issue of security for costs. The petitioners sought a faculty to install twelve antennae and two dishes in the tower of the church, and for authority for the incumbent and the PCC to enter a licence agreement for a term of twenty years in relation to its operation. The sole party opponent considered that the installation would be harmful to her health and that of other local people; she did not consent to the matter being determined on the basis of written submissions and sought an oral hearing to consider her objection.

Two important issues had to be addressed by the Chancellor: the lacuna in the relevant law on securing costs; and the potential for the party opponent to demonstrate by reference to scientific evidence that it would not be appropriate to grant a faculty. The thorough approach adopted by the Chancellor enabled him to navigate around the former with relatively little assistance from other sources; the provision of scientific evidence is in the hands of the party opponent, and will be subject to subsequent assessment by the court. This will no doubt draw upon considerations of analogous situations in earlier case law.

Although future petitions for security for costs are now covered by the Faculty Jurisdiction Rules 2015, the requirement for a balancing exercise such as that in the instant case remains unchanged. [Re St James Kidbrooke [2016] ECC Swk 13] [Link to post]  [top]

Re St. Peter & St. Paul Shoreham [2016] ECC Roc 4 The petitioners sought a faculty for an extension to the Grade I listed church, to provide facilities including lavatories, a Sunday school space, kitchen facilities, a meeting room and a storage area. The expected cost of the works was £450k of which £420k had been raised. The Society for the Protection of Ancient Buildings had written an initial letter expressing concerns about the proposals, but did not respond to the Chancellor’s directions to give further particulars of their objections, nor to an invitation to become a party to the proceedings. Reviewing the faculty against Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor commented [15]:

“14. Since I am left not knowing the final stance of SPAB, but aware that, subject to certain comments and recommendations, English Heritage, the CBC, and the DAC have all approved the proposals, and likewise the planning authority, who admittedly because of the application of the ecclesiastical exemption will, not have had to consider an application for listed building consent, I have no hesitation in saying that the Petitioners have discharged the burden that lies on them.

15. Insofar as the alterations may result in harm to the church building as might affect its character as a building of special architectural or historic interest, I find that such harm would not be significant or serious. Thereafter the need for the works is not challenged; it is clear and made out…”

Faculty granted. [Link to judgment] [top]

Removal and replacement of pews &

Re Holy Trinity Lamorbey [2016] ECC Roc 3 The petitioners sought permission to remove four pews from the back of an unlisted Victorian church, in order to provide more room for the serving of refreshments and for accommodating buggies and wheelchairs. The one objector, who did not become a party opponent, raised a number of issues in support of her views However, the Chancellor noted that the pews in question were neither original, nor matched those to be retained, commenting: “the argument in favour of accessibility for parents with buggies and the like and for wheelchair users is irresistible. I pose the rhetorical question, how else will such people be attracted other than by providing easier access? The safety argument I have to say is illogical; safety considerations demand more, not less, space”. Faculty granted. [Link to judgment] [top]

Exhumation

Family graves

Re Streatham Park Cemetery [2016] ECC Swk 15 As a matter of urgency, Chancellor Philip Petchey granted a faculty to authorize the exhumation of the cremated remains of Frederick Russell and their re-interment in the same grave at a greater depth, in order to permit the interment above them of the cremated remains of his mother, Beatrice. The grave also contained the remains of his father, Ernest, which would not be disturbed by the proposed operations. In his following judgment, the Chancellor stated that since it was not proposed to move the ashes to another grave, it was not necessary for the petitioners to show exceptional circumstances as in Re Blagdon Cemetery [2002] Fam 299. However, support for the “mistake” criterion was evident as Beatrice had made the arrangements for the burial of Frederick when she was 84 and grieving her son’s loss. [Link to judgment] [top]

Errors in burial

Re Holy Cross Sherston [2016] ECC Bri 9 The normal practice at Sherston was that the position of a grave would be marked by the Verger. This had not been the case, and the undertaker’s gravedigger had dug the grave too close to the footpath for the proposed memorial; there would therefore have been a danger of the grave and memorial being trodden on by members of the public. Chancellor Gau granted a faculty for the exhumation of her father’s ashes and their re-interment in another part of the churchyard which is close enough to the footpath to allow easy access by the petitioner’s wife, who uses a wheelchair, but far enough away for it not to be subject to traffic damage. He accepted that in the highly unusual circumstances of this case that a genuine mistake was made in the siting of the original space; it was a mistake made with the best intentions and no one was at fault. [Link to judgment] [top]

Re Kenilworth Cemetery [2016] ECC Cov 9 The Chancellor found there were exceptional circumstances that justified the exhumation of the cremated remains of the petitioner’s father from Kenilworth Cemetery and their re-interment with cremated remains of petitioner’s mother in St. Nicholas Kenilworth churchyard, in a grave which already contained remains of petitioner’s aunt [14].

These arise from: arise from the combined effect of two matters: the decision to inter the petitioner’s remains in Kenilworth Cemetery and the failure to inter them in St. Nicholas was the result of the mistaken belief that interment in St. Nicholas was not possible; and that re-interment in St. Nicholas will create a family grave containing the remains of the deceased, his widow, and her sister,  and will do so in a churchyard which also contains the remains of Mrs. Lee’s parents and of her other sister. St. Nicholas is “clearly the appropriate place for the remains to be and the proposed exhumation and re-interment will create a family grave in close proximity to the graves of other family members”

However, Chancellor Eyre stated [15] that a whilst a deterioration in the condition of a cemetery or churchyard can amount to exceptional circumstances justifying exhumation, this would only do so in the most extreme of cases where the deterioration is such that the cemetery or churchyard in question is no longer a fit resting place for the remains in question. This was not the position in the instant case. [Link to judgment] [top]

Churchyards

Churchyard Regulations

Re St. Paul Rusthall [2016] ECC Roc 2* The petitioner wished to erect a memorial in the churchyard in memory of his father which was not in compliance with the Rochester Diocese Churchyard Regulations 1981. The petition was opposed by the PCC, DAC and Archdeacon; relations between the petitioner and the incumbent had broken down, apparently on account of the conduct of the funeral service of the petitioner’s father. Although precedent of other similar memorials cited, Chancellor stated that this alone was not automatically a conclusive reason for granting a faculty; the Regulations had been in force since 1981 and “[although] memorials have been allowed erroneously, or have been erected, in breach of the Regulations [such] cannot be said to create a precedent, though it is not infrequently thought that they do” [5]. The Archdeacon indicated that a previous incumbent appeared to have wrongfully allowed memorials outside the 1981 Regulations to be erected without a faculty.

In Re St Mary Kingswinford [2001] 1 WLR 927, summarized here, Chancellor Mynors listed four circumstance in which non-standard memorials would be approved: (a) where a proposal is for a specially designed memorial which may be non-standard, but which is a fine work of art in its own right. Such proposals are indeed to be positively encouraged; (b) where a proposal relates to a category of memorial that may be suitable in some churchyards but not in others, so that it would be inappropriate to issue a general authorisation; (c) where there are so many examples in the churchyard concerned that it would be unconscionable to refuse consent for one more; and (d) where a stone might be aesthetically or otherwise unsatisfactory, but where there are compelling personal or other circumstances suggesting that a faculty should nevertheless be granted. With regard to ground 3, although there were some memorials similar to the proposal, it was not suggested that the churchyard was full of such grave stones. Faculty refused. [Link to judgment] [top]

Reservation of grave space

Re St. Leonard Minety [2016] ECC Bri 5 The petitioners sought to reserve a double depth grave space. They had lived in the parish since 1978, and had been given the impression by a former churchwarden that such a request was in order. Subsequently, at an unspecified date the PCC had adopted “a policy of not supporting future grave reservations” on account of the limited availability of space in the churchyard; no details of this policy were available to the court. At a further unspecified date, the PCC agreed that the application should “go ahead” as it would be unreasonable to apply the policy retrospectively. However, the PCC “reviewed” the application, though the grounds are unclear, and the PCC feels it is “unable to either support or reject the application” on the basis that the petitioners are “largely unknown to the PCC”.

 Chancellor Gau granted a faculty, as he was satisfied that the couple had been given the impression before the policy was adopted that they would be able to be buried in the churchyard: “It would be unreasonable, in my view in all the circumstances not to honour that indication.” He further urged the PCC and the incumbent to consider the guidance he issued on 2014 for the re-used of graves for burials. [Link to judgment] [top]

Disciplinary Tribunal Decision

On 27 October 2016, the Bishop’s Disciplinary Tribunal for the Diocese of Sodor and Man handed down the judgment: In the matter of the Clergy Discipline Measure 2003 as it has effect in the Isle of Man by virtue of the Clergy Discipline Measure (Isle of Man) 2005; In the matter of a complaint by the Ven Andrew Brown, Archdeacon of Man, concerning the conduct of the Revd Dr Canon Jules Francis Paulinus Gomes.

The Archdeacon`s complaint was that the Respondent had engaged in conduct that was unbecoming or inappropriate to the office and work of the clergy in that:

1. He has shown an unacceptable lack of self-control in failing to control his anger, especially as regards his rage towards his church cleaner.

2. In his application for his current and previous posts he misrepresented the facts of his curriculum vitae in such a way as to mislead in order to gain personal advantage.

3. In his interviews with the news media he made untrue claims and he made several malicious and untrue allegations against the bishop and the archdeacon.

4. In his statements to the news media he made unfounded allegations against another priest by accusing her of using racist epithets in reference to himself.

The Tribunal summarized its findings, stating:

115. We have thus concluded that it is proved that in the respects set out above the conduct of the Respondent was unbecoming or inappropriate to the office and work of a clerk in Holy Orders.

116. Although our full findings are set out above our principal findings may be summarised thus. Firstly, in exercising a need on his part to assert his authority and with an over-inflated view of his own self-importance, the Respondent has dealt with people with little or no compassion or pastoral concern. Secondly, the Respondent has lost his temper and displayed anger, even to those who continued to support him. Thirdly, in his behaviour he has caused serious harm to people and has caused them to leave their offices or his church. Fourthly, he does not seem to understand the need to express remorse or amend his ways. Fifthly, he has made untrue statements against Revd Erica Scott, the Archdeacon and the Bishop. We have no doubt that such behaviour on the part of the Respondent has damaged the reputation of the Church.

117. It necessarily follows that to the extent set out above we adjudge that the complaint is well founded and that the case against the Respondent is proved.

The Archbishop of York, the Most Rev Dr John Sentamu, issued a supportive statement on 7 November concerning the tribunal’s decision:

“I have subsequently been made aware of comments made by Dr Gomes on local media in response to this judgment. It is clear to me that the nature of those comments confirms and underscores the findings of the tribunal as set out above; and are further proof that Dr Gomes casts aspersions without reason,  and why it was probative  for the Archdeacon to bring the complaint under the Clergy Discipline Measure, (a Measure agreed to by Tynwald). Dr Gomes’ vilification of his diocesan bishop has been completely unjustified”. [top]