Ecclesiastical court judgments reviewed in January 2017
January’s consistory court judgments have included:
In addition, a CDM Tribunal has considered the penalty in Re Gomes and the Rt Revd Donald Allister, Bishop of Peterborough has issued his Visitation Charge to Peterborough Cathedral. Some of these judgements &c have been considered in further detail; see Links to other posts.
- Substantial reordering
- Reordering and alternative uses
- Other building works, including re-roofing
- Removal and replacement of pews &c
Re Upton St. Mary [2015 to 2017] In 2015 a petition in the Diocese of Chester sought permission to construct a new church centre at Upton St. Mary at an estimated cost of £1.6M. The proposed works included: the reconfiguration of an existing Victorian small hall/schoolroom; demolition of an existing, unappealing, 1958/9 large hall; demolition of a detached Victorian house/villa in Gothic revival style known as ‘Holmleigh’; and the construction of a new two storey centre attached to the existing small hall. Following the earlier planning application which was strenuously contested , there was substantial opposition to the faculty petition: the Chancellor considered 55 individual objections by letter and also written objection from the Victorian Society (‘VS’). There were 14 parties opponent, three of whom, at his direction and in the interests of case management, have assumed the role of ‘lead objector’.
One aspect of dispute between the parties, and of particular sensitivity to parties opponent, was the question of demolition of Holmleigh. A preliminary issue arose as to whether the court has jurisdiction over this building at all, and, thus, whether or not permission (by faculty) to demolish it could be refused. Its demolition was integral to the parish proposals and thus of importance to all parties .
If Holmleigh is in the ‘curtilage’ of the church, the court will have the same jurisdiction over It, and the unconsecrated land upon which all agree it is situated, as it does over the churchyard as a whole (Faculty Jurisdiction Measure 1964 s. 7(1)); If it is not ‘curtilage’, the court will have no such jurisdiction [7 and 8].
The Chancellor considered in detail the law relating to curtilage [21 to 45]; and whilst no single judicial test is available in all statutory contexts to aid the decision maker, drew up a number principles from the existing jurisprudence [45 (I) to (x)] and applied them to the instant case, in the light of the Parish case [46 to 55] and the Objectors case [56 to 66]. Drawing upon a number of principles from the existing jurisprudence [69(i) to (vii)] he concluded that it was ‘curtilage’ and was therefore within his jurisdiction.
On 10 October 2016 the Chancellor determined the petition and granted a faculty for the proposed new church centre. An application was subsequently made by the objectors to the Chancery Court of York for leave to appeal. By an Order dated 20 December 2016, the Auditor of the Chancery Court gave leave to appeal on only one of the grounds put forward by the objectors. The appeal to the Chancery Court of York has now been withdrawn as a result of a Consent Order. [Link to judgment, 30th November 2015] [Link to judgment 10 October 2016] [Order of York Chancery Court] [Top]
Re Holy Trinity Hull  ECC Yor 1 Since “sometime prior to 2013”, “cassock and Council” discussions have been in progress with regard to developments the old city area of Kingston upon Hull and in particular to Holy Trinity church which was founded by Edward I and is the largest parish church (in terms of area) in England. In 2015, a faculty was granted for the major re-ordering of churchyard, including removal of section of 19th century churchyard wall included in Grade I listing of the church. Victorian Society objected strongly, Re Holy Trinity Hull  Peter Collier Ch. (York). However, the significant potential benefits of scheme to the church and community were deemed to outweigh moderate loss resulting from development.
In parallel with these developments has been the development of schemes for the major reordering considered in Re Holy Trinity Hull  ECC Yor 1. The Chancellor, Canon Peter Collier QC, noted that were some difficult moments as the development group did not initially understand the consultation processes such developments have to work through and there were some difficult moments in its early engagement with the Diocesan Advisory Committee (DAC) and the amenity societies . However, after some early confrontational meetings, a very good working relationship was eventually developed with the DAC, which resulted in significant modifications to the original proposals .
After many months of consulting with the DAC and making successive adjustments to the shape of their proposals, the petitioners received a “recommended” decision on 1st March 2016 and presented their petition to the Diocesan Registry on the basis of what the DAC recommended. The various elements of the “recommended scheme” detailed in paragraph 14 (1) to (13).
The public notice has attracted no objections from members of the public, an of the statutory consultees, only the Victorian Society registered a formal objection; the others did not formally object, and the SPAB and AMS which referring to the Victorian Society as the group with the obvious particular special interest . The Victorian Society became a party opponent, objecting principally to the proposed removal from the nave of “one of the most magnificent and extensive suites of Victorian church seating in the country”.
An interim faculty was granted for the non-controversial aspects – items 4, 5, 7, 8, 9, 10, 11, 12 & 13 in paragraph 14 – for which the Chancellor gave his reasons in paragraphs 25 to 37. With regard to items 1 to 3 and 6, applying Re St. Alkmund, Duffield  Fam 158 the Chancellor stated :
“However given all that I have rehearsed of the evidence I have no hesitation in concluding that the loss of the permanent fully-pewed state of the nave will be a serious loss to this aspect of the Victorian heritage which forms a part of the architectural and historical heritage of Hull Holy Trinity”.
He then considered the fourth question and the petitioners’ justification for the proposed work on grounds of: liturgical needs [53-54]; practical issues of safety and comfort [55-56; and financial need and potential solution [57-60]. The Chancellor was faced with the dilemma of how to approach this division of opinion between the Petitioners on the one hand and the Objector on the other hand as to (i) the real necessity of their stated needs and (ii) the reliability of these financial projections .
He was not persuaded by the weight of the evidence produced by the Petitioners in support of their argument regarding the liturgical needs ; nor was there sufficient evidence produced by the Petitioners with regard to the practical needs, although there was an element of practicality relating to the financial need vis-à-vis potential hirers . The financial projections were therefore critical, and the Chancellor was satisfied that the petitioners had approached the matter responsibly, cautiously and looking for advice from those best equipped to provide it.
In weighing the benefits which the proposals would bring against any loss to the historical and architectural importance of the church, the Chancellor had to consider the evidence of the petitioners as to the financial viability of the church, if the works were not carried out. On balance he determined in favour of the petitioners and granted a faculty. [Link to judgment]
Re Botcherby St. Andrew  ECC Car 3 St Andrew’s Church is “a small distinctive building constructed in local brick”, designed by Henry Higginson of Carlisle, has a Grade II listing and was opened in 1890 . The diocesan web site reproduces “Standard Information (parish churches etc.)” from Form 1A, (Rules 3.2 and 4.6), Schedule 3, Faculty Jurisdiction Rules 2015: this includes a useful mosaic of pictures of the church, but incorrectly indicates that the church is unlisted.
The petition proposed various items of reordering [1 (a) to (g)] of which the contentious items were the chairs and carpeting. The Victorian Society expressed reservations on: the removal of all but two pews; the replacement of the pews with upholstered chairs; the carpeting of the nave; and the erection of a partition to create a meeting room, WC and kitchen.
The Chancellor was satisfied that it was appropriate that a new partition should be erected so as to allow the creation of a meeting room, WC and kitchen, which would not change the appearance of the Nave significantly; the Victorian Society’s suggestion of the installation of a lavatory pod (?)and discreet server would offer any significant advantage.
A faculty was granted subject to the replacement chairs being of solid wood and not upholstered, “which may have removable cushions”. Given that a large part of the floor of the Nave is already carpeted, there was no good reason why the entire Nave should not be carpeted. [Link to judgment]
Re St. Bartholomew Welby  ECC Lei 1 The petitioners sought to install a plaque, 25cm by 45cm, at the entrance to the church to satisfy the requirements of Heritage Lottery Fund, having given a commitment to “acknowledge” its award of a £114k grant. Fixing such a “large and tasteless” plaque to one side of the main door of the church would cause serious harm to the building within the meaning of questions 1-3 in Re St. Alkmund Duffield (2013) Fam 158. The Chancellor noted: “aesthetically, there is a violent contrast between the jaunty motif and colours on the Perspex plaque, and the sober interior decoration of the church and its porch”.
The application was rejected but the petitioners were given the opportunity to amend the petition to include one of the two smaller plaques suggested. However, if no such application was made within the time stated, then the petition would be dismissed without further order. [Link to judgment] [Link to post] [Top]
Re St. John the Evangelist Read-in-Whalley  ECC Bla 1 The petitioners sought to replace an existing plain glass window with one of stained glass design depicting St. John the Evangelist in the left hand light and St. George in the right hand light. The window would be a gift to the church from the Rt. Hon. Lord Waddington GCVO, and an inscription at the base of the right light would indicate that it was a gift to the church from him; in the base of the left would be a passage from Psalm 46, said to have been the inspiration for the motto in Lord Waddington’s coat of arms. In addition, at the top of the left light is to be the coat of arms of Lord Waddington showing the coronet of a baron and the Grand Cross of the Victorian Order; at the top of the right light is to be the coat of arms of Bermuda where Lord Waddington was Governor from 1992 to 1997, and at the base of this light, a view of Lord Waddington’s childhood home, the Old Vicarage in Read.
The PCC approved of the proposal which was supported by the DAC, although some concerns were expressed by the Church Buildings Officer of Historic England, including the general principle that living donors should not be commemorated in stained glass or other church artworks. Whilst recognising such a generally accepted principle, the Deputy Chancellor stated that it was possible to allow exceptions: in the present case the donor was a ‘son of the village’, and had held office as Home Secretary and as Governor of Bermuda. A Faculty was granted. [Link to judgment]
Re St. Katharine Holt  ECC Sal 2 The Victorian Society and the Church Buildings Council expressed concern about the parts of the reordering scheme: (1) the removal of the Victorian pews; (2) the introduction of plastic upholstered chairs; and (3) the introduction of carpeting to the north aisle. The chairs had “a chrome frame, a beige plastic back and upholstered seats in red with a navy fleck”. The Petitioners argued that the beige plastic back matched the light ashlar stone of the church’s interior and that the red upholstered seat had been chosen to blend with the red quarry tiles and woodblock of the floor. The style has been chosen for its light weight and high stackability given the need regularly to change the configuration of the seating”.
Given the low quality of the pews and their relatively modest contribution to the significance of the building as a whole, the Chancellor found that their removal would cause no more than modest harm to the significance of this church . However, the introduction of the ‘Chelsea’ chairs as a replacement for them would cause much more significant harm to the special interest of the building: “the plastic and brightly coloured upholstery of the chosen chair are incongruous with the natural wood and stone textures of this highly listed interior” .
Referring to her judgment in Re St Peter Mancroft, Norwich (15 April 2015), the Chancellor clarified that it was not for her to decide whether an alternative chair would be better than the Chelsea chair chosen. Rather, she was required to decide whether the grounds for the grant of this faculty are made out by the harm caused being outweighed by the public benefit achieved. The fact that alternative chairs exist was, nevertheless, of relevance .
The Chancellor adjourned the determination of the proceedings for a period of six months to allow the parish to review its choice of chairs in consultation with the DAC. If at any stage within that period an alternative suitable choice of chair can be identified then the Petition can be amended and returned to the court for approval and a faculty issued. If after six months (or such extended time as may be allowed) no amended Petition has been presented then the matter will stand dismissed. [Link to judgment] [top]
The cremated remains of the petitioners’ mother, who died in 2016, were interred in the grave of her first husband, who died in 1978. The petitioners caused the existing memorial (“the headstone”) to be removed and had added to it, inter alia, their mother’s age and date of her death . In the interval during which the headstone had been removed in order for the additional inscription to be added, William Allison, her second husband with whom she had been married for 26 years, was granted permission by the interim minister to place a memorial on the plot; this memorial (“the new memorial”) took the form of a flat tablet including her surname after remarriage . The Petitioners argued that the new memorial should be removed; they stated that it does not conform to the Churchyard Regulations, although their main issue was that there should only be a single memorial to a particular person on a grave.
The Chancellor noted that there was little by way of direct guidance in the decisions of other chancellors; “[c]ases where there is disagreement as to the wording to appear on a proposed single memorial are sadly not uncommon. The issue here is the less common one of what is to be done when two competing memorials are already in situ. He approached the dispute in the light of “the purpose of a churchyard as being a suitable and seemly resting place for the remains of those interred there; the Court must seek to ensure that the memorials which are installed in a churchyard are compatible with that purpose” [18, 19]. It cited:
. In Re St. Mark’s, Haydock (No 2)  1 WLR 1167 Hamilton Ch sitting in the Liverpool Consistory Court said (at 1170 B – D) that a controversial headstone would serve no purpose and that a memorial which included one friend or relative “to the pointed exclusion of another” would not be appropriate.
 In Re St Augustine Droitwich  ECC Wor 2 Mynors Ch addressed the issues of who has the right to erect a memorial and of how disputes between competing relatives should be resolved. The learned Chancellor was there faced with the problem of competition as to the appropriate wording for a single memorial…After an extensive analysis of the authorities Mynors Ch was driven, at , to the conclusion that “there seems to be no definitive legal principle governing the right to choose a memorial”.
After considering the key requirements governing the acceptability and appropriateness of memorials of relevance to the current case, [23(a) to (c)], the Chancellor concluded: it was not appropriate that there should be two separate memorials to the petitioner’s mother on the same plot; the current unsatisfactory state of affairs would not be remedied either by moving the new memorial to a different position on the same plot or by the installation of a plaque at the foot of the grave.
He therefore granted a faculty authorizing the removal of the tablet subject to the condition that the headstone be amended by agreement between the petitioners and the second husband by adding words along the lines of: “a widow for 5 years and for 32 years the beloved wife of N”. In the absence of agreement within 3 months, the Chancellor would invite the Archdeacon to petition for a faculty for the removal of both the headstone and the tablet and their replacement by a single memorial bearing wording directed by the Court.
Footnote: This case has attracted the attention of the media. The article in the Daily Telegraph contains photographs which are useful with regard to the context of the two memorials. Its headline –“Church of England judge called in to settle family tombstone row” – emphasizes the role of the court in providing a sound judgment in order to settle a family squabble, rather then exploring a specific aspect of ecclesiastical law. [Link to judgment] [Link to media article] [Top]
The petitioner sought approval for a memorial in memory of her late husband, the “patriarch of a group of traveller families” . The proposed memorial had a number of features reflecting that heritage , and would be in a part of the churchyard contain a number of memorials on a similar theme, not in compliance with Churchyard Regulations, although satisfying the dimensional requirements. The instant petition concerned a memorial slightly higher than permitted, but significantly wider so that it would cover not only the head of the grave of the deceased, but also the head of the adjacent grave reserved for the petitioner. The churchyard stands on a layer of hard sandstone and consequently, graves cannot be dug deep enough to accommodate two interments. The petitioner had reserved the grave space immediately adjacent to that occupied by her husband’s remains, and the memorial was intended to cover both graves.
The Chancellor refused to grant a faculty for the memorial as proposed, because its size was considerably larger than the churchyards regulations would normally allow, and it would dominate the area of the churchyard where it would be erected. He permitted a smaller memorial in the style requested, provided that it did not exceed 4 feet 4 inches in height and 4 feet in width. [Link to judgment, t.b.a.] [Top]
Re York Minster  ECC Yor 3 An application by a private individual for an injunction to stop the Dean & Chapter of York Minster preventing the ringing of the Minster bells was dismissed. There were two jurisdictional reasons why the court could not entertain the application and consider the merits of the applicant’s complaint about the conduct of the Dean and Chapter in relation to the ringing of the bells of York Minster : the Consistory Court has no jurisdiction over the cathedral church of the diocese whatsoever; and with regard to the injunctive power derived from S13 (4) Care of Churches and Ecclesiastical Jurisdiction Measure 1991, the use or non-use of the church, the conduct of services in the church and the ringing or non-ringing of bells would not fall within the jurisdiction of the consistory court in a parish church.
The Cathedrals Measure 2011 gives the Court a power to issue injunctions but that is limited to an injunction being sought at the instigation of the bishop against a cathedral chapter where it has not obtained necessary consents to carry out works that would affect the heritage issues set out in section 2 of the Measure. [Re York Minster  ECC Yor 3] [Link to post] [Top]
Re Gomes – penalty
On 27 October 2016, the Bishop’s Disciplinary Tribunal for the Diocese of Sodor and Man handed down the judgment concerning the conduct of the Revd Dr Canon Jules Francis Paulinus Gomes, reviewed here. On 11 January 2017, the Church of England published the Tribunal’s decision regarding the penalty. [Link to post] [Top]
Peterborough: On 8 January, the Church of England issued a statement on behalf of the Church Commissioners in relating to the Visitation Charge issued by the Rt Revd Donald Allister, Bishop of Peterborough to Peterborough Cathedral. This is summarised in out post issued by the Rt Revd Donald Allister, Bishop of Peterborough. Paragraphs 5 to 24 of the Charge concern “Directions and Recommendations to the Cathedral Chapter“. Of equal importance are the “Reflections for the House of Bishops and the National Church Institutions” in paragraphs 25 to 30, which conclude [emphasis added]:
“30. I urge the Archbishops’ Council, the Church Commissioners, and the House of Bishops, to look at whether the current  Cathedrals Measure is adequate, and to consider revising it. The Peterborough situation has convinced me that the high degree of independence currently enjoyed by Cathedrals poses serious risks to the reputation of the whole Church, and thus to our effectiveness in mission. A closer working relationship of Cathedrals with their Bishop and Diocese would be of benefit to all, both practically and spiritually.” [Top]
Recent summaries of specific issues that have been considered in the consistory courts include:
- York Minster Bells: “fundamentally flawed” application to consistory court, 13 January 2017
- Bishop’s Disciplinary Tribunal Decision: Re Gomes – penalty, 12 January 2017
- Peterborough Cathedral: Michael Sadgrove’s thoughts on the visitation report, 10 January 2017
- Bishop’s Visitation Charge: Peterborough Cathedral, 6 January 2017
- Lead theft – future threats in parishes and parliament, 4 January 2017
Clicking on “top” will return the view to the groups in the main menu, above; Clicking on “back” will return the view to the sub-headings within each of these groups. “Link to Judgment” is self-explanatory, and “Link to post” is used where there is a stand-alone post on the general issues raised in the judgment.
As from 1 January 2016, judgments in the ecclesiastical courts have been allocated a neutral citation number under the scheme described in Practice Note No 1 of 2016 and Practice Note No 2 of 2016. In addition, it was necessary to assign a neutral citation for the Diocese of Sodor and Man, here. The Diocese was deliberately excluded from the list of neutral citations in the earlier Practice Directions on citation because it is not part of England.