Ecclesiastical court judgments – April and May 2017

Over the last two months, only nine new consistory court judgments have been reported. Although most of these relating to aspects of reordering, in Re Fairmile Cemetery Lower Assendon, the illegal practice of “coffin sliding” by the burial authority was brought to the attention of the Oxford consistory court. For completeness, we have also added outline details of an ECtHR case relating to churchyards, the judgment of which will be handed down early in June. In addition to links to our other posts relating to ecclesiastical law, this round-up includes summaries of cases in the following areas:


Reordering, extensions & other building works

Reordering and alternative uses

Re St. John Waterloo [2017] EACC 3 The Dean of Arches gave the petitioners – the Vicar, Churchwarden and Treasurer of the parish of St John (with St Andrew), Waterloo – leave to appeal on two of five grounds set out in the application regarding reordering works to the church, Re St. John Waterloo [2017] ECC Swk 1. On Ground 1, the Dean stated that the Chancellor had erred by applying a different and higher test to that set out in In re St Alkmund, Duffield, and on Ground 5, the Chancellor had erred in his assessment of public benefit by applying a test of necessity and/or reaching a finding of fact for which there was no evidence. However, the parish has decided subsequently not to pursue its appeal. [Link to judgment] [Back] [Top]

Re St. Andrew Kettleburgh [2017] ECC SEI 4 A faculty was sought for reordering the Grade I listed church, including: repositioning of the last three rows of pews in the west nave; removal of the 20th century base to the 15th century font; conservation and opening-up of the north nave door; conservation and repair of the south porch ledger stones and decaying areas of the pavior floor; provision of new oak doors to enclose the south porch. In addition, there were proposals for maintenance works including some re-plastering and redecoration, and upgrading of the electrical supply system. The work was to be conducted in three distinct phases.

The Chancellor concluded that all of the proposals should be allowed. In the case of each, excluding those relating to maintenance works, the enhanced test set out in St Alkmund, Duffield applies and that the proposals, if implemented, would result in some harm to the significance of the church as a building of special architectural or historical interest. That harm would be low to moderate, but he found a clear and convincing justification for the proposals, bearing in mind the church’s Grade 1 status.  He also took fully into account the views expressed by the Church Buildings Council and Historic England both of whom had objection to some of the proposals (though not the same ones). The Society for the Protection of Ancient Buildings was given special notice of this petition but had not responded. The faculty was granted subject to certain conditions. [Link to judgment] [Back] [Top]

Other building works, including re-roofing

Re St Michael & All Angels Croston [2017] ECC Bla 5 A faculty was granted for remedial work including the repair, replacement and treatment of rotten/infested roof timbers and flooring, and a number of items relating to access: a ramped disabled access adjacent to the main door; a disabled toilet within the disused south porch; permanent removal of some pews to create additional space for movement around the church and disabled/wheelchair access; and the creation of a larger family-friendly pew area at the rear of the south aisle by the removal of two pews.

Significant to the petition was the grant of Heritage Lottery Funding (HLF) to the PCC which made it possible to undertake the works “without massive and possibly unachievable fundraising”. Unless the works were completed, it was claimed that the future structural integrity of the church would be threatened and the building could be completely lost [2]. Importantly, the HLF grant was conditional on improved public access; however, the changes to the layout were minimal and were designed to improve disabled access and to make better use of the space without losing the character of the existing building.

Historic England had been consulted by HLF as part of the grant application process and confirmed the acceptability of the specification for the proposed works for the eradication of death watch beetle and the subsequent timber repairs. With regard to the removal of pews, the Chancellor had consulted Pevsner and also the listing particulars, and found no reference other than a re-set inscription dated 1708 asserting Farington family ownership of “three seates” in the north aisle. He was satisfied that the proposed minor reordering would have only a limited impact upon, and result in no harm to, the significance of the church as a building of special architectural or historic interest.

Applying Re St Alkmund, Duffield [2013] Fam 158 and Re St. John the Baptist Penshurst  [2015] Court of Arches (Rochester), the Chancellor determined that the proposed works would not result in any harm to the significance of the Grade II* church as a building of special architectural or historic interest, and accordingly granted a faculty. However, this required that the pews referred to in Pevsner are replaced in their original position once the works to the floor are completed and no pews are to be disposed of without the permission of the DAC or further faculty of the court. [Link to judgment] [Back] [Top]

Re St. Peter Petersham [2017] ECC Swk 3 The petitioners sought a faculty for the construction of a parish room by way of extension to the south of the Grade II* listed church, which was within the Petersham Conservation Area. Two neighbours and another parishioner objected, though there were no objections from the local planning authority, who granted planning consent, or from Historic England, the CBC; the Society for the Protection of Ancient Buildings did not make comment.

The Chancellor deferred his consideration of the petition until after planning permission had been granted by Richmond LBC, to which two of the objectors to the faculty had also raised objections [4]. He noted that the aesthetic harm would be limited, reflecting the view of the DAC and also the local planning authority, which would not have granted planning permission if it had taken a different view [14]. There would be limited loss of amenity [15], but from the perspective of “need”, he considered that the Petitioners’ proposals were intrinsically reasonable and would provide public benefit which could not otherwise be secured [16].

The Chancellor gave weight to the strong presumption against proposals which would have adversely affected the special character of a listed building, but did not think that the further presumption relating to serious harm of a Grade II* building arose. Nonetheless, he was clear that the public benefit arising outweighed that harm, his view coinciding with that of Historic England, the local planning authority, the DAC and the CBC. Faculty granted. [Link to judgment] [Back] [Top]

Re St. Helen Denton [2017] ECC Lee 2 The vicar and churchwarden sought a faculty for an extension to the north side of the church and the construction of a new car park. St Helen’s is a Grade II* listed building within the Denton Conservation Area, and lies in the Nidderdale Area of Outstanding Natural Beauty; it is unconsecrated but licensed for public worship. The proposed extension would house a small kitchen and lavatory facilities; there would also be level access for the disabled from the new car park. The Chancellor observed:

“The church’s Brief History and Guide is a model of clarity, revealing its unusual history and points of particular interest. I think it is a little unfortunate that in this instance, the parish’s Statement of Significance was not of a comparable standard. A better document might have made the consultation process smoother and might even have produced greater, or earlier, consensus. There is a learning outcome here for other parishes in the diocese who may be contemplating similar projects” [9].

Public notice elicited no correspondence; Historic England did not wish to comment and the Victorian Society indicated that it deferred to the Georgian Group and did not wish to make any independent representations. The Georgian Group made a number of observations to which the parish’s inspecting architect responded. However, the Chancellor noted:

“The Listing Statement does not ascribe to the blind gothic recesses of the north wall the significance for which the Georgian Group contend, but even if there is force in the latter’s view, the reversibility of the proposal mitigates against the claimed seriousness of the harm” [16];

Furthermore, the grant of planning permission inevitably informed the Chancellor’s assessment. It was readily apparent that the public benefit would outweigh the measurable, though not serious, harm that would result. The presumption against change had been comprehensively discharged and the Chancellor had no hesitation in directing that a faculty may pass the seal, subject to conditions. [Link to judgment] [Back] [Top]

Re St. Barnabas Eltham [2017] ECC Swk 4 The Vicar and Churchwardens of the unlisted church sought a faculty to remove the chancel and sanctuary furniture, with the exception of the Holy Table; the removal of a row of pews at the east end of the nave; the creation of a new raised floor, to be carpeted; the installation of underfloor heating; the installation of additional lighting in the chancel; and the replacement of the electronic organ console with a new one in a different position. The Twentieth Century Society (“the Society”) objected to the removal of the choir stalls and the Communion rail, although it did not want to become a party opponent.

Although this was a proposal that did not affect a listed building, nonetheless the building was of architectural and historic interest; accordingly the views of Historic England, the local planning authority (the Royal Borough of Greenwich) and the only the later provided comments. The Society regretted the proposed removal of the choir stalls from the chancel “as these were especially designed for the space” but “of greatest concern [was] the proposal to remove the altar rails. These are stylistically identifiable as being Thomas Ford’s work and form part of the ensemble of fittings that complete his vision for the church”.

However, the Chancellor challenged these assertions, stating [8]:

“[8] I think that is wrong to say that the choir stalls were designed for the space; I think that they came, with the pews, from St Michael’s, Lant Street. Also, as I have said, I think that the post-war restoration was carried out by Thomas Ford’s son and not Thomas Ford himself (although Alan Ford worked for a practice that bore his father’s name).

[9]. As the Petitioners point out, the removal of the choir stalls is a key element in the proposed reordering. The building is unlisted and the choir stalls, which were not, I think, designed for the space are not intrinsically distinguished. It seems to me that there would have to be something very special in the case if, in these circumstances, I were to say that the removal of the chancel furniture could not go ahead, given the clear benefit that would flow from the implementation of the proposal. It does not seem to me that there is anything so special in the case….”

Nevertheless, he agreed with the Society that the removal of the communion rails would be unfortunate, and in granting a faculty supported the Petitioners’ “admirable compromise” that they were retained but moved to a position further east. [Link to judgment] [Back] [Top]


Telecommunications

Re St. James Kidbrooke [2017] EACC 2 This is a decision on costs given by the Dean of Arches in respect of his refusal to grant leave to appeal, Re St. James Kidbrooke [2017] EACC 1. In Re St. James Kidbrooke [2016] ECC 16 the Chancellor of the Diocese of Southwark granted a faculty to permit the installation of twelve antennae and two dishes behind GRP replacement louvres in the tower of the church and gave authority for the Rector to enter a licence agreement for a term of 20 years with the telecommunications company. The sole party opponent applied to the Court of Arches for leave to appeal on six grounds. The Dean of Arches refused to grant leave to appeal.

In this direction on costs, he stated:

“[4]. I see no ambiguity in what the Chancellor was saying in these two paras of his determination. At that stage the Chancellor plainly considered that the Applicant (then Party Opponent) might not be able to pay the court costs of the imminent hearing, nor to pay the Petitioners’ costs were he so to order. But the costs now in issue (confined to the court costs of her refused application for permission to appeal) will be considerably smaller than the costs which the chancellor then had in mind, and which she was not eventually ordered to pay (see the final sentence of para 56 of the Chancellor’s final judgment ([2016] ECC Swk 16).

[5]. It is not clear what “alternative costs proposal” the Applicant is putting forward. If it be that the Petitioners should pay the court costs because of her own limited means, I reject that proposal. Therefore the Applicant must pay the court costs of her application by 1 June 2017. If she is unable to pay in full by that date, she may apply to the Provincial Registrar for a reasonable extension of time”.

[Link to judgment] [Back] [Top]


Exhumation

Errors in burial

Re Fairmile Cemetery Lower Assendon [2017] ECC Oxf 2 The petition permission to exhume a body which had mistakenly been buried in a plot that had been reserved for someone else. This raised two issues: the refusal of permission for the exhumation and re-interment of a body buried as a result of an error by the burial authority – the Town Council; and the Chancellor’s strong condemnation of an illegal practice of the Council (and possibly other burial authorities) of “sliding” coffins to adjacent plots to remedy errors in their interment. Whilst the latter was not of direct relevance to the instant case, it raised an important issue of general application.

The petitioner sought a faculty to exhume and re-inter a body mistakenly buried in a plot within of a block of graves reserved for his family because of an administrative error by the burial authority, Henley-on-Thames Town Council. This error was compounded by a second incorrect burial, although this was not considered by the consistory court. However, the Chancellor refused to grant a faculty on the grounds that (a) the desire of the petitioner’s family to keep family burials in a rectangular block (described as a square in the petition) was a ‘personal preference’, which was outweighed by the distress which would be caused to the family of the deceased and the Christian theology of the permanence of burial; the burial authority was willing to grant an exclusive right of burial for the petitioner’s family in a plot adjacent to the ‘block’; and (b) there had been a delay of one year between the burial in the wrong grave and the lodging of a petition.

With regard to the “sliding” of coffins, the court was informed that the previous Town Clerk had said that he could arrange for the mistakenly-buried body to be relocated “informally” by “sliding” the body, i.e. excavating the ground so as to move the coffin sideways so that it no longer occupied plot, but without lifting it out of the ground [34]. However, the Chancellor observed:

“any interference with human remains that have been buried in consecrated round would, unless authorised by faculty, be unlawful under ecclesiastical law … If such interference amounts to the remains being “removed” it is also a criminal offence¦ Such unlawful action by a burial authority is to be deprecated. Should cases of this happening become known to the court, I shall instruct the Registrar to report the matter both to the Archdeacon with a view to appropriate steps being taken to enforce ecclesiastical law, and to the Police with a view to their investigating whether a criminal offence has been committed” [35].

Philip Jones has suggested that as a result of the changes to the wording of S25 1857 Burial Act by S2 Church of England (Miscellaneous Provisions) Measure 2014, the revised S25(2) of the 1857 Act “perhaps…’removed’ now refers to disturbance of the original interment, and not merely removal from the cemetery, or consecrated part of the cemetery”. However, we would go no further than the Chancellor’s tentative suggestion that “if such interference amounts to the remains being removed, it is also a criminal offence”, and that if an examples of “sliding” are found, they should be referred to the Police “with a view to their investigating whether a criminal offence has been committed”.

[Link to judgment] [Link to summary] [Back] [Top]


Churchyards and burials

Development of churchyard

Re St. John the Baptist Hillmorton [2017] ECC Cov 1 The construction of this Grade II* listed church is principally of sandstone, although Pevsner observed it was “unrestored and still delightfully patched with brick, stucco, and pre-Ecclesiological work”. Many monuments in its churchyard are also of sandstone but there are others of various materials including blue brick and slate or granite. The incumbent and the PCC wished to move away from individual memorials at the point of interment and commemorate those interred on a single collective memorial.

The Priest in Charge and churchwarden, supported by the PCC, sought a faculty for a collective memorial for cremated remains in the Memorial Garden: a granite stand 0.99m high by 1.07m wide and 0.10m deep, on a base 0.10m high by 1.22m long and 0.25m deep. There are to be three black granite tablets set on the wall and the names of those whose remains are interred in the Memorial Garden will be inscribed on the tablets with each tablet having capacity for thirty-nine or forty names.

The DAC certified that the proposed memorial wall would not affect the special significance of this church, and whilst it did not object to the proposal, expressed reservations as to the intended use of polished granite. Churchyard Regulations do not permit incumbents to authorise the use of polished granite for memorials and that there were no other polished granite memorials in the churchyard.

In his assessment, the Chancellor noted that the starting point was Re Eccleshall: Holy Trinity, [2013] Lichfield Const Ct, Eyre Ch at [8(a)]:

“…The circumstances of interment and the memorials in a churchyard can be powerful evidence of the Church’s love for the local community. Churchyards are places of solace and relief for those who mourn. In addition many people find comfort in knowing that their mortal remains will be interred in a particular churchyard and in a particular setting. That comfort derives in part from a confidence that the character of that setting will be preserved. Churchyards are also an important part of our national and local heritage. Our care for them is part of the Church’s work of stewardship of our environment and heritage. Thus the Consistory Court must ensure that what is placed in our churchyards is fitting and appropriate against the light of those foregoing considerations. Moreover, the memorials placed in churchyards must be fitting and appropriate not just for today but also for the future.”

He observed that “a memorial made of a different type of stone will often stand out from the other memorials creating a contrast, drawing excessive attention to itself, and thereby detracting from the appearance of the churchyard as a whole” [11], and consequently “individual memorials of a stone type contrasting with that of the church building will rarely be permitted” [12].

However, this was a case not with a memorial to a single individual but with a memorial on which many individuals will be commemorated for which there are a number of differences which are of relevance [13]:

a) A collective memorial will normally be positioned some way from individual memorials. In such circumstances the risk of a jarring discrepancy or of the collective memorial sticking out like the proverbial sore thumb is reduced.

b) The consideration of equitable treatment for all interments is not present in the context of a collective memorial recording the names of all those whose remains are interred in an Area for the Burial of Cremated Remains.

c) The proposal for a collective memorial and for a particular design will normally result (and certainly it does here) not from the preference of an individual person or family but from the collective assessment by the incumbent and the PCC of what is pastorally appropriate for local families generally. Such an assessment made by the incumbent and the elected representatives of the parishioners must carry considerable weight with the court…If those interring the cremated remains of their departed family members and other loved ones in an Area for the Burial of Cremated Remains are to be content with a collective memorial they must be satisfied that the collective memorial is of a fitting quality and appearance. The incumbent and Parochial Church Council in a particular locality are likely to have a better understanding than the court or the Diocesan Advisory Committee of what is required to satisfy the local community in that regard.

The Chancellor accepted that sandstone is much less durable than granite. Inscriptions would remain durable for longer on a granite tablet to which inscriptions would be added over a period of many years. Also, the memorial would not be close to other memorials in the churchyard and any adverse effect on the overall appearance of the churchyard would be minimal. A faculty was therefore granted

[Re St. John the Baptist Hillmorton [2017] ECC Cov 1] [Back] [Top]


Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

Churchyards

General/Miscellaneous

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ECtHR

  • Tonyuk v. Ukraine (no. 6948/07): Forthcoming judgment on Thursday 1 June 2017 –
    The applicant, Yustyna Tonyuk, is a Ukrainian national who was born in 1941 and lives in the Ivano-Frankivsk Region of Ukraine. She complains about the existence and use of a cemetery, which was created ten metres from her home. Ms Tonyuk obtained two judgments from national courts, which banned the use of the cemetery for future burials, on the grounds that its proximity to Ms Tonyuk’s home was in breach of the applicable sanitary standards.

Relying on Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy), Ms Tonyuk complains that burials in the cemetery continued despite of the judgments in her favour, claiming that the court orders were never properly enforced. Ms Tonyuk also complains that the use of the land for burials violated her rights under Article 8 (right to respect for private and family life, and the home): in particular, because of the risk that her well water would be poisoned, and because living in the immediate proximity of a functioning cemetery caused her serious psychological discomfort.

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Citation of judgments

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.

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Cite this article as: David Pocklington, "Ecclesiastical court judgments – April and May 2017" in Law & Religion UK, 31 May 2017, http://www.lawandreligionuk.com/2017/05/31/ecclesiastical-court-judgments-april-and-may-2017/

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