Review of the ecclesiastical court judgments during June 2017
Of the ten consistory court judgments reviewed this month, four have involved requests for confirmatory faculties in cases where the Petitioner had disregarded the requirements of ecclesiastical law: Re St Nicholas Fundenhall where the Chancellor’s earlier unambiguous direction was not taken into consideration; Re St Andrew Buxton in which the PCC proceeded without reference to the consistory court; and two examples of clear infringement of Churchyard Regulations, Re New Lonan Churchyard and Re St Mary Roughton.
In addition to these, the petitioners in Re St John the Baptist Knaresborough sought to defy logic in seeking permission to replace a bench around a tree which their arboricultural advisor had indicated was a current and a future risk.
This round-up includes summaries of cases in the areas listed below, and in addition to links to our other posts relating to ecclesiastical law, we have added a brief summary of an ECtHR case relating to churchyards, the judgment of which was handed down early in June.
Re St Andrew Donhead St Andrew  ECC Sal 1 The incumbent and churchwardens sought a petition for the major reordering of the Grade II* church of late Saxon origins, almost entirely superceded by a building of the 14th and 15th centuries and substantially rebuilt in stages throughout the 19th century. The proposed works included inter alia: the replacement of the nave pews with oak chairs; replacement of the Victorian tiles in the nave with sandstone flooring; the replacement of the existing vestry and boiler room with a new extension to house a parish room, toilet and kitchen; the provision of a servery; and the introduction of various items of ancillary furniture.
Additionally there are proposals regarding the re-roofing of the church; these are currently on-hold whilst the presence of bats in the church is investigated . These did not form part of the present Petition; however, the Petitioners acknowledged that their priority in allocating funds is first to address the recently discovered urgent repair work (i.e. the recent discovery of crumbling roof tiles) before moving on to the
improvements and extension planned [20(f)].
The proposal to re-order the inside of this church has been ongoing “since at least 2011”  The Chancellor reviewed the consultation with and advice of statutory bodies [9-13]; and the objections of individual objectors, seven of whom elected to become parties opponent [14-17] on which he concluded: “apart from the arguments in relation to funding and its cost implications [£500,000 of which £300,000 had already been raised], there does not seem to be any serious objection to the design or form of the proposed extension which does…have planning permission” .
Notwithstanding the objections, the Chancellor granted a faculty, being satisfied that the harm to the building would be modest, that the justification for the works was strong, and that the public benefit would outweigh any harm caused to the building. [Link to judgment] [Back] [Top]
In view of the heading to the judgment – Re Faculty Petition: The Church of St Mary the Great with St Michael Cambridge – some expansion of the information in paragraph 2 may prove helpful. The Michaelhouse website explains:
“…For nearly 350 years St Michael’s continued as a parish church but with fewer and fewer congregation and clerical support, and in 1908 was merged with Great St Mary’s… in the mid-1960′s the interior was converted to serve as a church hall for the parish. Though expensive, the conversion was not successful; critics thought it detracted greatly from the 14th century church while also being expensive to maintain.
In 2000 work started on a second major conversion…[costing] £1.3 million and the Michaelhouse Centre (The Michaelhouse Centre Cambridge Limited) opened its doors in November 2002. Michaelhouse is a registered charity (number 1068472) and operates under a licence granted by Great St Mary’s. It remains a fully consecrated building…Michaelhouse’s founding charter states its main objectives as being to advance the Christian faith, and to advance education particularly in the arts”
Paragraph 2 states:
“A major reordering of the Nave was completed about 8 years ago which has created a thriving café and well-designed meeting rooms. It is separated from the chancel by glass which reaches up to approximately two-thirds of the height of the arch which separates the two. The Chancel and the Hervey de Stanton chapel remain as places of worship, being used for more intimate services better suited to St Michael’s than to St Mary the Great. St Mary the Great also use St Michael’s as their church hall on Sundays. The chancel is also used as an exhibition space, for concerts lectures, and other social events”.
The church now sought a faculty to remove the remaining pews from the chancel, raise the floor level and replace the pews with Howe 40/4 seats, to enable the building to be used more effectively for the community which the church serves. The Petitioners acknowledges that the Victorian fixtures and fittings of high significance and, if the faculty is granted they intend to make use of the pews elsewhere within the church or within St Mary the Great.
The Victorian Society objected to the proposals which they assessed would cause serious harm to the character of the church; they point to the handsome floor and decorative poppy heads which remain a set piece within the chancel . In his determination, the Chancellor stated :
“(a) This is a Grade 1 listed building. I accept the conclusion of the DAC that the proposals, if implemented would result in harm to the significance of the church as a building of special architectural or historic interest.
(b) …its status as a Grade 1 listed building owes as much, if not more, to its medieval origins and Tudor importance than it does to the alterations made in Victorian times. That said, in considering the harm I must do so looking at the building as it now is…the impact of the Victorian works is seen most significantly in the east window, the reredos and the roof. Whilst the poppy heads of the Victorian pews are noteworthy in themselves, I do not judge that removal of the pews themselves or the raising of the floor would cause serious harm to the significance of the building overall.
(c) As I have set out in §13 above, I find that there is a strong justification for carrying out the proposals. I add to that the difficulties presented in holding a service involving the young where the floor space is so limited…
Re St Andrew Earlsfield  ECC Swk 5 The vicar and churchwardens sought a faculty for a range of works for the Grade II church: the removal of pews in the nave and replacement with new Theo oak chairs (Chorus Furniture); alterations to the west end of the nave comprising the removal of the existing kitchen and storage installations, construction of a new kitchen/Community café in the north aisle, installation of disabled toilet facilities in the north-west corner; the creation of more flexible storage arrangements in the north aisle/transept; and the replacement of current west door porch with wood and glass vestibule with noticeboards inside.
The Chancellor noted that these changes would be beneficial to the church [emphasis added]:
“[28.] It is worth noting that aspects the proposals will positively benefit the church as a listed building. The removal of the pod in the south west corner will reveal the south aisle window by Martin Travers. The removal of the WC from the north porch will restore the north porch to its original function: a practical example of how the reversibility of works in a listed church may, in due time, be of benefit to the building in its character as a listed building. Making the existing west doors open outward and installing glass doors behind them (together with the fact that there is a functioning café in the church) will mean that passers-by will be able to see into the church; and will be able to enter and look around. These benefits are significant”.
The Victorian Society acknowledged that the removal of the current porch and west end screen would be positive changes, and, in principle, had no objection to the installation of a café. However, it considered that “the proposed kitchen and new porch lack the architectural quality of the rest of the building” and with regard to the pews, “[s]imply stating that flexibility is desired is not sufficient justification to outweigh the harm caused by the removal of the pews” .
Applying the guidelines in Re St Alkmund, Duffield  Fam 158 the Chancellor determined to grant a faculty: ” …this seems to me to be a clear case where significant public benefit (including benefit to the listed building considered as such) outweighs modest harm”.
He considered separately the Victorian Society’s objection that “[t]he [revised drawings] are still overly diagrammatic. They do not provide nearly enough information to judge what the porch will look like” . Noting
“this is an approach which probably could not be pursued in the secular system. Further, it is not usually the way that matters are pursued in the ecclesiastical system”,
Re St Mary the Virgin Buckland  ECC Swk 6 A faculty was sought by the Rector, a Churchwarden and the PCC Secretary to authorize: the removal of up to three pews at the east end of the nave (two on the south side and one on the north side). The Petitioners are content that, in the first instance, the faculty granted should be for a period of five years so that, if, in practice, the new arrangements were not satisfactory, the work could be reversed. The principal justification for removing the pews is to provide space for: wheelchairs; instrumentalists around a piano (which supplements the organ on one Sunday each month); and for singers at concerts. It would also give space for a projector on the south side for use with a portable screen at all age services; and for the attendants of wedding couples.
The DAC recommended the proposed works to the Court, although it advised that they were likely to affect the church as a building of special architectural or historic interest; the diocesan advisor on access matter was strongly supportive. Historic England, the local planning authority and the Victorian Society were all consulted and none objected. However, a former long-standing PCC Treasurer and sidesman objected to the works .
Applying the guidance in Re St. Alkmund, Duffield  Fam 158, the Chancellor held that the proposed work would harm the significance of the church as a building of special architectural or historic interest, although this harm would be modest and not serious, and in the first instance, a faculty was being granted for a limited period. The church is listed Grade II and not Grade I or II* and serious harm would not be caused to it. He determined that the modest harm arising from the proposals would hardly affect the character of the church, is outweighed by the clear and significant public benefit flowing from the proposal, even allowing that there is a strong presumption against such harm. Faculty granted. [Link to judgment] [Back] [Top]
Re St. Nicholas Fundenhall  ECC Nor 5 In October 2014 the Chancellor granted a faculty for various works, including the replacement of pews with chairs, conditional that: “[n]o order shall be placed for the new nave chairs/pews until their design has been either agreed with the DAC, English Heritage and the Victorian Society or approved by the Chancellor.” Despite this apparently clear direction, in September 2016 the PCC spent without such approval, £3,053 on 50 chairs with matt gold-coloured metal frames, with seats and backs of a rich brown faux leather. [An article in the Daily Telegraph includes photographs of the “before” (i.e. pews) and “after”].
By November 2016, the Petitioners had sought to obtain the retrospective agreement of Historic England and the Victorian Society to their choice of chair; both expressed their objections indicating that the design was chosen as inappropriate for this Grade I church. The Chancellor was not prepared to approve the choice of chair under Condition 2 of the 2014 judgment and directed that the Petitioners apply for a confirmatory faculty (i.e. the instant petition), and required Special Notice of that petition to be given to the local planning authority, Historic England and the Victorian Society . The confirmatory faculty was limited to 10 years, which equated to the guarantee of the chairs manufacturers.
Chancellor expressed her criticism of the conduct of the Petitioners:
“7. It is, of course, the responsibility of the Petitioners to ensure that the terms of the faculty which was granted to them were complied with. In particular, I find it surprising, to say the least, that they, through the officers of the DAC, sought the Chancellor’s approval for the choice of chair on 2 August 2016 and yet went on to order the chairs on 1 September without having obtained that approval. I find it equally surprising that having been “advised of a problem with the approval process on 13 September by the Registrar’s office” apparently nothing was done to halt the production of the chairs which had been ordered only eight working days previously. The fact that the chairs were not ready for delivery for a further three weeks suggests that prompt action”.
Nevertheless, mindful of the significant expenditure the PCC had incurred in the reordering, and that the justification outweighed the harm in this case, the Chancellor determined to grant a faculty for 10 years, requiring the PCC before the end of such period to put forward proposals for some alternative chairs. [Link to judgment] [Back] [Top]
Re Magdalen Cemetery Gorleston  ECC Nor 3 The petitioners, father and daughter, applied for a faculty to exhume the remains of the father’s late wife’s cremated remains from plot a cremated remains plot in the cemetery, for re-interment in a full grave plot in the same cemetery, which had already been purchased by the father and two of his daughters. The father had realised after the interment that he would not be able to be buried with his wife’s remains, as he was a Roman Catholic and he believed that the Roman Catholic Church required its members to have full body burial.
The Chancellor stated:
“Mr Czykieta [one of the Petitioners] clearly holds a strong desire to be buried rather than cremated. That desire is linked to his Roman Catholic faith. He has said that he “understand[s] that [his] Roman Catholic faith requires a full body burial” and that he is “a Roman Catholic and ha[s] got to be buried”. When pressed on this issue he accepted that “in the last few years the Roman Catholic faith did allow the cremation by choice of the individuals [sic]”, but is firm that he and all of his family and his Roman Catholic friends have always believed that a full body burial should take place.
Although cremation is clearly not prohibited in Roman Catholicism [v infra] I accept that Mr Czykieta’s desire for a full body burial is both strongly held and born from a genuine desire to honour a tradition linked to his faith by which he feels bound. It is that desire which means that an exhumation is required if Mr and Mrs Czykieta’s remains are to be interred together.
The Chancellor considered the criteria within Re Blagdon Cemetery  Fam 299 and determined that a faculty should be granted: (1) there had not been a long period between the interment and the husband’s realisation of the frustration of his desire to be buried with his wife; (2) the husband had had to make a quick decision about a plot for his wife at a traumatic time when he was unable clearly to think through the consequences; and (3) the remains of his wife would be reinterred in a family grave, thus releasing a cremation plot.
The relevant sections in the Roman Catholic 1983 Code of Canon Law are:
Canon 1176§3. The Church earnestly recommends that the pious custom of burying the bodies of the deceased be observed; nevertheless, the Church does not prohibit cremation unless it was chosen for reasons contrary to Christian doctrine”.
Canon 1184§1 Unless they gave some signs of repentance before death, the following must be deprived of ecclesiastical funerals:
(2) those who chose the cremation of their bodies for reasons contrary to Christian faith;
Re New Lonan Churchyard  EC Sodor 1* The Vicar General declined the petition for a confirmatory faculty regarding a memorial erected in memory of the petitioner’s late wife; it did not conform to the Churchyard Regulations and had been erected without faculty authorization. The memorial was made of oak and was in the shape of a treble clef sign; the deceased had been a singer/songwriter and author of children’s books, aspects of which were reflected on the oak memorial. The petitioner – the deceased’s widower – additionally wished to erect a stainless steel plaque measuring 600mm x 75mm across the bottom of the headstone .
The present memorial is located immediately behind the grave of a 7-year-old child, Dominic, and consequently it is “unsurprisingly of a much smaller size, although is it in keeping with others immediately adjacent thereto and generally in the churchyard” . It is: outside the permitted dimensions, being fractionally too high by 70mm and significantly too thick, by 80mm; constructed of oak, not natural stone; and of an “eccentric shape”; [although not included in the judgment, a photograph of the memorial is available here].
The Petitioners offered to add a further carving onto the rear of the treble clef, such as a teddy bear or toy, and that the incumbent should be invited for any views she might have about the application . The Team Vicar had no strong views about the Petitioner’s suggestion, but would be content it this was acceptable to Dominic ; however, this did not address their concerns  and consequently, it followed that the Chancellor was required to determine the Petitioners’ application .
He concluded: “In terms of the depth of the memorial and its impact on other adjacent memorials, its already deteriorating condition and its durability, the likelihood that it will require to be replaced in the future, its eccentric shape and the carvings on the memorial all create a substantive departure from the Churchyard Regulations. In such circumstances, I am satisfied on the facts of this case the memorial is inappropriate in all of such respects and that I should not grant a confirmatory faculty to allow it to remain in the churchyard” .
With regard to the wording on the proposed stainless steel plaque, although such consideration is academic the Chancellor confirmed that such wording would be appropriate on a more conventional memorial .
The Petition was dismissed. The “collection of plant pots and other ephemera were to be removed immediately, and the Chancellor directed that the memorial was removed from the churchyard within 28 days of the judgment, or the Archdeacon was empowered to remove it and store it for a further 56 days, after which he could arrange for its disposal.
[Note: The judgement indicated  that Dominic’s parents do not currently reside in the Isle of Man, although they maintain a home in Laxey and other relatives are resident. A news report indicates that the Petitioner now lives in Devon and suggests that the remains of the deceased “could be relocated to Wales”. Clearly, this would require the permission of the court]. [Link to Judgment] [Back] [Top]
Re St Mary Roughton  ECC Nor 1* The petitioner was distressed on account of the weeds and long grass in the area of his wife’s grave; although he had read the Churchyard Regulations which stated unambiguously that chippings were not permitted on graves “as these create difficulty or danger when mowing”, without reference to the incumbent or churchwarden, he requested his nephew to clear the grave and lay pea gravel over a membrane, containing the area with metal edging. He then applied for a confirmatory faculty.
Neither the Diocesan Advisory Committee nor the Parochial Church Council supported the retention of the gravel or edging. The Chancellor refused to grant a faculty on the grounds of potential future maintenance problems and the fact that to allow the gravel to remain might encourage others to wish to lay gravel in the churchyard. He directed that the gravel was to be replaced with turf by the petitioner within three months, failing which the churchwardens were authorised to do the work. [Link to judgment] [Back] [Top]
Re St. Andrew Buxton  ECC Nor 4 Over a period prior to the summer of 2015 there had been complaints about the untidiness of the area for cremated remains in the churchyard; furthermore, it had become necessary for nine further interments of ashes to be made place outside this area, which had become full. The PCC, without reference to the Archdeacon, DAC, or registry, extended the area from 32 plots to 106 plots, replaced the turf with gravel, and constructed a low wall surmounted with stone around the enlarged plot.
It was not until the Archdeacon’s visitation in 2016 that the absence of a faculty was highlighted to the churchwardens and fabric officer of the church, who subsequently petitioned for a confirmatory faculty in relation to works of refurbishment to the area for cremated remains in the churchyard, which was surrounded by stone flags. The Chancellor commented:
“[7.] It is surprising, to say the least, to hear that the parish concerned did not understand that faculty permission was required before they could make the changes sought. This is not least because the newly refurbished plot falls so far outside the limitations placed on what can be authorized by an incumbent within a churchyard under the Churchyard Regulations”
She explained that the reason for limitations upon what may be permitted in a churchyard were: theological, as described by Hill Ch in Re St John the Baptist, Adel  ECC Lee 8; aesthetic Re Holy Trinity Eccleshall  Lichfield Const Ct, Eyre Ch; and practical. The Chancellor clarified the nature of the Churchyard Regulations as she was concerned that it has been misunderstood by some .
“There is no presumption against memorials which fall outside the regulations but instead, as McGregor Ch said in Re St John’s Churchyard, Whitchurch Hill (Oxford Consistory Court, 31 May 2014):
“As is the case with any petition for a faculty, the burden of proof lies on the petitioner to show why a faculty should be granted to authorise the particular proposal set out in the petition.”
Petitions for works in churchyards will simply be judged on this basis having regard, amongst other things, to the principles set out in paragraphs 8 to 10 above”.
From an aesthetic point of view “the new ashes area may be seen by some as striking a discordant note in the churchyard of this Grade II” listed church”  and “despite the improved tidiness which is appreciated by many locally, the design of the new area is stark (some may say jarring) in this setting”  although she accepted that the passage of time and the weathering of the stonework will mute this effect somewhat.
The Chancellor was more concerned about the practical difficulties created by the new design, mindful of the fact that this new area has the potential to serve parishioners in Buxton for many years to come and its maintenance should be as simple as possible if it is not to impose too great a burden on future generations of the PCC . She considered that it is likely that there will be an increased maintenance burden in relation to the churchyard for this and future generations: “[h]ow great that increase will be is, to an extent, speculative, but it is real. I suspect that these issues had simply not been properly appreciated by the PCC when deciding how to ‘improve’ their cremated remains area” .
The Chancellor concluded that the most appropriate order was the granting of a faculty for a period of ten years; upon the expiry of that term the PCC will need to decide whether they wish to apply for permission to continue with the current arrangements or seek permission to adjust or amend them in the light of experience. It was a condition of the faculty that twelve months prior to its expiry the Petitioners apply to the DAC for a Notification of Advice (or whatever equivalent step exists at that time) and include in that application an assessment of the aesthetic and maintenance implications of the new arrangement, the condition of the structure and future proposals for the area. [Link to judgment] [Back] [Top]
“….To replace a damaged, badly worn tree bench sited between the south door and church hall, which surrounds a Sugar maple tree, subject to a TPO. To make good the immediate surrounding area of the tree bench by defining a new shape, with a new kerb. Works as per the architect’s report with photographs, and the tree assessment of Barnes Associates of March 2015″.
However, “As presented [the Petition] was doomed to failure. The Court could never sanction work to a bench surrounding a tree which presented a current and future risk [as identified in the tree assessment of Barnes Associates]” . The petitioners subsequently submitted a report from a tree expert employed by the borough council, which indicated that the tree was basically sound, showed “excellent signs of vitality”, and a Quantified Tree Risk Assessment had suggested that risk was at a tolerable level.
However, the Petitioners did not seek to revise the petition by the removal of the reference to the Barnes & Associates report (which argues against their underlying proposal) and its substitution with reference to Mr Glaister’s report [i.e. that of the council’s tree expert]. The Chancellor stated the such an amendment was undoubtedly required , and noted that in this instance he was that “the amendment [could] be made without risk of prejudice or injustice. The underlying proposal remains the same: the amendment is to the evidence relied on in support.”
A faculty was granted for the new bench, subject to conditions , including the removal of some lower branches of the tree, as recommended by the borough council tree expert. [Link to judgment] [Link to post, t.b.a.] [Back] [Top]
Recent summaries of specific issues that have been considered in the consistory courts include:
- Living next to a cemetery: Tonyuk, 1 June 2017 [See below]
Tonyuk v. Ukraine (no. 6948/07): Relying on Articles 6 §1 (fair hearing), 8 (private and family life) and 13 (effective remedy), the Applicant, Ms Tonyuk, complained that burials in the cemetery had continued despite the judgments in her favour and claimed that the court orders had never been properly enforced. She also complained that using the land for burials violated her rights under Article 8: 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 .
The Court held that there had been a violation of Article 6 on account of the non-enforcement of the judgments in the applicant’s favour of January 2003 and March 2004. The Court also concluded – Vehabović J dissenting – that it was not necessary separately to examine the complaint under Article 8.
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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 2016Â and Practice Note No 2 of 2016.Â 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.