In addition to this final round-up of consistory court and other judgments for 2016, we have published an index to all the cases report which includes links to more general posts associated with these judgments. Although not an ecclesiastical court judgment per se, the changes to the Churchyard Regulations in the Oxford Diocese represent an important development of the faculty jurisdiction in this area, particularly in view of the adoption of a similar non-prescriptive approach in the Leeds Diocese; these were covered in our post Churchyard Regulations – important developments.

The post Issues of equality in the consistory courts considers the application of the Equality Act 2010 to the proposed disabled access to a pre-fabricated timber frame building into the community garden at the church, Re St Christopher Walworth [2016] ECC Swk 14. In addition to the inexcusable actions by the employees of Leeds City  Council, which was taken to task in Re St Peter Bramley, two of the petitions for AV equipment described the “Heath Robinson” of the current arrangement. Should the latter practice be widespread, it would be advisable for the incumbents and PCCs involved to re-examine the safety of such temporary arrangement, which are unlikely to have the blessing of their insurers.

After we published this post, a final tranche of judgments for 2016 was received, ” *** [2016] ECC Lin 1 to 6“,  and these have been added in the form in which they appear on the Ecclesiastical Law Association web site.

An update on the consideration of applications by the Cathedrals Fabric Commission for England (CFCE) is included, below.

Consistory court judgments

• Reordering, extensions & other building works
• Telecommunications
• Exhumation
• Churchyards

Reordering, extensions & other building works

Reordering and alternative uses

Re St Lawrence Darlaston [2016] ECC Lic 2 The petitioners sought a faculty for the installation of a new audio visual system, the main features of which were a  retractable screen positioned above the chancel arch and a projector mounted on a fixed stand in the balcony. The worship in the church is a mixture of traditional services and services which are more contemporary in approach in which the words for hymns are projected on to a screen along with other material. The church currently uses a portable screen and a portable projector with the latter being mounted, when in use, on a flower stand in the third row of pews [3]. [See also Re St Nicholas Kenilworth, for a further example of a similarly unsatisfactory arrangement].

In addition to resolving current safety issues, the new AV system would provide images “more readily and comfortably visible to those in the congregation” [4]. The Diocesan Advisory Council, (DAC), recommended approval of the petition and certified that the proposed works were unlikely to be cause a material alteration in the appearance or special significance of the church. There was a letter of objection signed by twenty-six people which raised a number of issues, [9(a) to (e)]. Whilst there was “an unfortunate division of opinion between the members of the community worshipping at St. Lawrence’s”, “the overwhelming majority of the PCC support the proposal”. As the members of the PCC are the elected representatives of the parishioners the Chancellor stated that he must proceed on the basis that the proposals are supported by the majority of the parishioners, [12].

With regard to aesthetic issues, the Chancellor noted that tastes can legitimately differ; since he had no special qualifications or experience in this area, he followed the advice of the DAC, who in this case had recommended approval of the works and “that recommendation must carry particular weight when considering questions of aesthetics” [13]. After considering the objections [16-19], he concluded that the Petitioners had set out a proper justification for the proposed works; the impact on the appearance of the church would be modest and the benefits to be obtained by the proposed works would be sufficient to overcome the presumption against change. Faculty granted. [top]

Re St Christopher Walworth [2016] ECC Swk 14 A faculty was granted for the erection a pre-fabricated timber frame building in the community garden at the side of the church. Issues relating to compliance with the Equality Act 2010 were raised by the DAC, and the Chancellor reviewed the diocesan policy and the application of the Act and Statutory Code of Practice in relation to disabled access. [Link to post] [top]

Re St Helen Stapleford [2016] ECC S&N 3 The proposal was to build an extension on the north side of the Grade II* church, linked by a corridor, to provide toilets, a kitchen and a community room/classroom. The Deputy Chancellor determined that a good case has been made for the proposed extension and that the public benefits of the proposals were sufficient justification, despite the harm to the significance of the Grade II* listed building. [top]

Re St Peter East Bridgford [2016] ECC S&N 4 The petitioners sought a faculty to authorise the movement of the altar westwards by 0.6m to increase the amount of space behind the altar for celebrating the Eucharist, i.e. to enable the priest to kneel/genuflect behind the altar without “turning slightly anti-clockwise to do so” (as suggested by the seven objectors to the proposal) [7]. This case highlights the application of faculty authorization to even minor changes which “will not cause any harm to (the church) as a building of special architectural and historic significance…[where] there has been no suggestion from any quarter that this will cause any aesthetic damage to the layout of the chancel” [9]. Like Re St Andrew Castle Coombe [2016] ECC Bri 2, this is one of the few examples where it has not been necessary for the Deputy Chancellor to examine beyond the first Duffield question.

With regard to the application of the law,

[14]. Using bodily gestures as part of offering divine worship is a common practice within the Church of England and takes many forms. Unless the gestures used are unlawful, offensive or otherwise inappropriate, I take the view that a priest should be free to use his or her body in the way that enables him or her to most fully enter into the Divine Mystery of the Eucharist and to offer up most sincerely the praises and thanksgivings of their congregation.

[15]. Therefore moving the altar as proposed to enable worship to be led in the manner used by the present incumbent will have the effect of enabling the priest in this place to engage more deeply in his role at the Eucharist without the distraction of turning to one side to genuflect. It therefore has the potential to enhance Divine Worship, which can be a good enough reason to overturn the presumption against change.”

The objections raised to the proposal are summarized in paragraph 7 and addressed in paragraphs 17 to 24. With regard to the incumbent’s ‘Anglo-Catholic’ style of worship [13] disliked by a small number of the congregation, the Deputy Chancellor commented:

“[17]. …where such actions are part of the lawful custom and practice of an incumbent, which, presumably, form part of his spiritual formation, it is likely that to enable such practices to be performed freely and well will enhance not only his worship, but the worship of the whole community. This is because the incumbent has a duty to lead that community in worship, and he will best be able to set an example to them, if he is free to worship in the manner that enables him to engage most fully and devoutly in his role”.

Furthermore:

“[19] …Divine worship is the central activity of any church and funds spent on enhancing that is an appropriate use of PCC funds…

[20]. However, it is the function of the incumbent and PCC to determine the appropriate division of resources between the various competing demands upon them. That money should be spent on Divine Worship and on meeting the needs of the poor is a given. It is foundational to any body that calls itself Christian. The appropriate balance between these objectives, and others, is to be determined by the incumbent and PCC in accordance with the law. It is no part of a Chancellor’s function to second guess that division“.

Other issues raised by the complainants were for others, rather than the consistory court, to resolve. The Deputy Chancellor commented:

“[23].The pastoral concerns raised, I suspect, go to the heart of the objections. In my view the level of objection to moving an altar 0.6m is indicative of a larger problem within the parish than where on a platform an altar is placed. Comments like ‘the vicar is not popular’ and ‘the mission of the church will not be enhanced by moving the altar’ provide the basis for this concern. This is a matter for church authorities other than the Chancellor to investigate and resolve where possible. These issues, whilst vital for the health of the parish, do not in my view provide adequate grounds to persuade me to refuse the faculty applied for“.

Faculty granted. [top]

Re St John sub Castro, Lewes [2016] ECC Chi 8 The petition proposed various reordering works to the Grade II church, including work on galleries and staircases and the provision of a lift and meeting rooms; and the sale of a painting from around C1600. The Chancellor was satisfied that the petitioners had made a good case for reordering works, and that the public benefit would outweigh such harm as would be occasioned to the building. He granted a faculty for the items of reordering, but reserved judgment on the sale of the painting pending further representations, including as to whether there should be an open court hearing.  [top]

Re St. Mary and St. Nicholas Spalding [2016] ECC Lin 5 The petitioners sought a faculty to authorise the installation of servery units in an ‘L’ shape in the south-west corner of the church. Historic England objected to the ‘L’ shape and felt that the two arms of the ‘L’ should be separated, leaving space in the corner. The Chancellor granted a faculty for the works as proposed: “I judge that if the units  were moved apart leaving a gap in the corner the separation will lead to a spread of ‘kitchen activity’ over a wider area and leave a gap in the corner which will inevitably become filled with unattractive items.” [top]

Audio Visual Equipment

Re St Nicholas Kenilworth [2016] ECC Cov 10 The Chancellor granted a faculty for the installation of a retractable screen to be placed over the chancel arch of the church, being satisfied that this would be preferable to the current “Heath Robinson” arrangement of standing a portable screen on boxes at the front of the nave, and that the works were likely to bring benefits which outweighed the general presumption that change should not be permitted. [Re St. Nicholas Kenilworth [2016] ECC Cov 10 (2)] [top]

Removal and replacement of pews &c

Re St. Peter Boughton Monchelsea [2016] ECC Can 3 The petitioners sought a confirmatory faculty for works carried out some years before, including two areas of temporary reordering at the east end of the nave and the east end of the south aisle, the introduction of a grand piano, the removal of pews at the west end of the north aisle to allow for the introduction of a timber carving of the nativity by Graham Clarke and the making permanent of an audio visual installation. The Commissary General granted a faculty limited to three months, to enable the petitioners should discuss with the DAC ways of mitigating the visually intrusive audio visual units which Historic England pointed out, their thoroughly modern materials which are, to some extent reflective, are incongruous in the context of the historic stone of the church fabric. [top]

Other

Re St. Guthlac Market Deeping [2016] ECC Lin 2* The Petitioners sought a Faculty to replace the existing tower clock dial with one made from Glass Reinforced Plastic (GRP) and restoration of the existing clock hands and dial motion works. The Diocesan Advisory Committee did not support the proposal to replace the clock dial with one made of GRP. Historic England also opposed the proposed GRP dial, which they claimed would be harmful to the significance and architectural and historic interest of the Grade I listed building through the loss of historic fabric. The Chancellor determined not to grant a faculty. [top]

Telecommunications

Re St James Kidbrooke [2016] ECC Swk 16 This judgment was preceded by an interim judgment concerning security for costs Re St James Kidbrooke [2016] ECC Swk 13. 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 claimed that the transmission of electronic data by telecommunications aerials was generally a threat to health; she considered herself to be hypersensitive to existing electro-magnetic fields, “electro-hypersensitive”. However, the Chancellor stated [40]:

“… in the light of In re Bentley Emmanuel Church, Bentley it will be seen that, because Miss Lyrae [the party opponent] did not call expert evidence, her basic case – that a faculty should not issue because of the risk to health – was doomed to failure. This is because once it has been established that the installation will be operated in accordance with the ICNIRP guidelines, the basis for refusing a faculty without the benefit of expert evidence to support that refusal does not arise. It is clear in this case that the installation will be so operated”.

It would therefore be wrong for the consistory court to adopt more rigorous guidelines than those recommended by the government for application in a secular context. With regard to her electro-hypersensitivity, he stated:

“[47]. I have not overlooked the fact that Miss Lyrae considers that she is electro-hypersensitive. She has not put any medical evidence before me to this effect. Moreover if she were to persuade me that a faculty should not be granted in this case because of the particular effects of the operation of the equipment upon a medical condition that she suffers, I would need to have expert evidence as to that effect. If Miss Lyrae were already to suffer, as she considers that she does, from the effects of the operation of telecommunications networks it is not self-evident that what is proposed will make her situation worse. I note in this regard that the ICNIRP declaration takes into account the cumulative effect of emissions both from the proposed installation and all radio base stations present at, or near, St James’s Church”

Faculty granted. [top]

Exhumation

Re St Swithun Cheswardine [2015] Stephen Eyre Ch. (Lichfield)* A faculty was refused for the exhumation of the ashes of petitioner’s father in order that they could be scattered with the ashes of his mother at Skerray in northern Scotland. This would comply with the wishes of the Petitioner’s mother before she died; at some point after her husband’s interment, his she changed her mind as to the appropriate form of disposal of those remains. Citing McLean Ch. in Re Stocks (1995) 14 CCCC 21, 5 Ecc L J 527, Chancellor Stephen Eyre stated [7] [emphasis added]:

“[t]he Court is concerned not just with the permanence of interment but also with the fact that remains which have been interred in consecrated land have been committed to the protection of the Church. Exhumation can only be permitted even in exceptional circumstances if the Court can be satisfied that appropriate arrangements are in place for the continuing protection of the remains”.

Furthermore,

” …[a] change of mind is not an exceptional circumstance nor does it mean that there was a mistake at the time of the original interment. In addition the fact that the intention is for the remains, if exhumed, to be scattered is a further [top]

Re Hickling Cemetery [2016] ECC S&N 2 Upon consideration of the principles laid down in Re Blagdon Cemetery [2002], the Acting Chancellor granted a faculty to permit the exhumation of the remains of the petitioners’ mother from Hickling Cemetery, in order that the remains might be interred with the remains of the petitioners’ father in Whatton-in-the-Vale churchyard: “The combination of the initial mistake as to whether the burial took place in consecrated ground, the intention to re-inter together in a family grave and the unanimous family wishes together create sufficient good and proper reasons for this exceptional order to be made.” [top]

In the matter of David Bell deceased [2016] ECC She 3 This was an interim judgment [see below] relating to a petition whereby the petitioner sought authority to have the remains of her father, who died in 1976, exhumed and cremated, and then interred with the cremated remains of her mother, who died in 2016. It was proposed that the remains of the petitioner’s parents should be taken and buried in a cemetery in Scotland where other members of the family were buried. The Chancellor requested the petitioner to produce further information before making a decision. [top]

In the matter of David Bell deceased (2) [2016] ECC She 4 Further to the above interim judgment, the Chancellor decided that there were “good and proper reason(s) which would be likely to be regarded as acceptable by right thinking members of the Church at large to allow the petition and permit this exhumation.” [top]

Re Gainsborough General Cemetery [2016] ECC Lin 1 The petitioner’s father’s body had been buried in a triple depth grave in 1976. In 1999 the cremated remains of the petitioner’s grandfather had been buried in the same grave at a depth of two feet. The petitioner’s mother died and before her death had expressed a wish for a coffin burial in the same grave as her husband, but this could not be achieved without disturbing the cremated remains in the grave. The Chancellor granted a faculty to allow the cremated remains to be exhumed and reinterred at the head of the grave, in order to allow the burial of the petitioner’s mother’s body with that of her husband. [top]

Re London Road Cemetery Louth [2016] ECC Lin 3 The Chancellor granted a faculty to authorise the exhumation of the cremated remains of the petitioner’s father, which, due to an administrative error on the part of the town council, had been interred in the grave adjacent to the grave of the petitioner’s mother, instead of in the petitioner’s mother’s grave. [top]

Churchyards

Development of churchyards

Re St Michael Heighington [2016] ECC Dur 3 The Vicar and Churchwardens sought authority to conduct a survey of: the area of churchyard added in 1926 and currently in use; and the older part of the churchyard, in order to ascertain by rodding where further burials could take place, including burials in the older part of the churchyard over existing graves. A neighbour, whose house windows looked out directly on to the older part of the churchyard, objected to its re-use and the possible disturbance of existing graves, stating that interments carried out near his windows would be distressing and affect his enjoyment of his property. He claimed that such re-use would amount to a nuisance and also blight his property. The Deputy Chancellor determined that the PCC were legally entitled to re-use old burial ground until such time as the churchyard was formally closed, and that such re-use would not amount in law to a nuisance. A faculty was granted. [top]

Re St George Telford [2016] ECC Lic 6 [Note on citation: the church of St. George is at the heart of the Telford district of St. George’s] The Vicar and Churchwardens sought a faculty to authorise the laying of a drain under a path between the church and the public sewer, with a view to servicing  a new toilet in the church at some time in the future; improvements to the paths and driveway serving the church; and the moving of the seven memorials in the northern section of the churchyard, in order to allow that area of the churchyard to be used as an open space for community use. There were seven letters of objection, but no objector wished to be a party to the proceedings. The Chancellor granted a faculty. [top]

Re St Peter Bramley [2016] ECC Lee 9 Staff of the Leeds City Council instructed its workmen to erect a fence along the perimeter of the closed churchyard for which the Council was responsible, in order to prevent a recurrence of recent anti-social behaviour: youths standing on the churchyard wall and throwing stones at traffic. However, the Council did so without first seeking a faculty or planning consent from its own planning department, even though a meeting had been arranged for interested parties to discuss the best fencing solution. The Chancellor commented [28]:

“[28]. I take a dim view of the petitioner’s conduct in this matter, notwithstanding that it may have originally been animated by an understandable sense of civic responsibility. The endemic ignorance of faculty law, process and procedure is eye-watering, and compounded by a co-extensive lack of comprehension of the requirements of secular planning law for which it is itself responsible. I regard the manager’s unilateral decision on 31 August 2016 to erect the fence as staggeringly inept and singularly inappropriate when a multi-agency meeting had been scheduled for 7 September 2016. The manager’s stubborn refusal to abandon the work when requested to do so by the respondents does neither him nor the petitioner any credit.”

[30]. …It is obvious from the evidence that the petitioner acted with the best of intention and out of legitimate concern for public safety. In doing so the petitioner was motivated by a desire to avoid injury and loss of life, and believed that it was acting in accordance with the wishes of the parish priest, expressed in his email of 22 August 2016.

[31]. However, the execution of that good intention was characterised by ineptitude, discourtesy and illegality. The manager (still unnamed) who sanctioned the immediate erection of the fence, notwithstanding the multi-agency meeting a week away, exercised poor judgment; he ignored both the faculty jurisdiction and secular planning control; and he treated the first and second respondents in a high handed manner.”

[33]. Notwithstanding the failures of process, the fence has substantially addressed the danger to public safety, as the evidence of PC Carroll [ward manager dealing with youth and anti-social behaviour in Bramley] makes plain. There have been no further complaints since it was erected, nor has the throwing of stones been repeated. It may not be to everyone’s taste; it may not be in the ideal position; it may make tending the grass beyond the fence more difficult. But in the expert opinion of the DAC, summarised in [the chairperson’s] note, it is ‘aesthetically uncontentious’ and ‘does not conflict with the sacred status of the churchyard, or give any other cause for concern’.

Mr Owen [Counsel for the Respondents] informs me that some £2,300 of public money was expended in the erection of the fence, and it would be churlish and wasteful to compel the fence’s removal when some other equally costly solution would still be required and resources are scarce”.

With regard to any subsequent involvement of Leeds City Council with church-controlled activities, the Chancellor noted [32]; “The court can be tolerably confident that the petitioner will respect the faculty jurisdiction of the Church of England in the future”. Indeed.

[top]

Re St. Mary Magdalene Gedney [2016] ECC Lin 4 The Chancellor granted a faculty to authorise the re-use of an area of the churchyard in which there were no memorials and where it was believed that there had been no burials for at least 150 years.[top]

Re St. Mary Magdalene Fleet [2016] ECC Lin 6 The Chancellor granted a faculty to authorise the re-use of an area of the churchyard in which there were no memorials and where it was believed that there had been no burials for at least 75 years. [top]

CFCE Determinations

At the last meeting of the Cathedrals Fabric Commission for England on 8 December 2016, the following applications were considered; links to the determination documents will be available shortly.

• Canterbury Cathedral: New Welcome Centre and landscaping
• Carlisle Cathedral:  Fratry extension
• Ely Cathedral  to form two areas of hard standing adjacent to the Cathedral – partial approval for archaeological investigations only
• Gloucester Cathedral:  Ramp to Ambulatory
• Gloucester Cathedral:  South Porch floor
• Winchester Cathedral: Repairs and conservation to North Presbytery stained glass – deferred for further information

The next Commission meeting will be on 26 January 2017 at which the following new applications will be considered.

• Carlisle Cathedral: North Transept roofs
• Chichester Cathedral:  High roofs – to be added
• Lichfield Cathedral:  Chapter House and Library
• Lincoln Cathedral:  New Welcome Centre, conservation and landscaping
• Manchester Cathedral:  Tower repairs
• Manchester Cathedral:  New sound system
• Ripon Cathedral:  Re-carving and replacement of two gargoyles

[top]

Copies of judgments

As explained in our index of 2018 judgments, copies of the above judgments are now available via the web site of the Ecclesiastical Law Association.