Ecclesiastical court judgments – July

Review of the ecclesiastical court judgments during July 2017 

July’s consistory court judgments have included:

This summary also includes links to other posts relating to ecclesiastical law.


Reordering, extensions & other building works

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Substantial reordering

Re St. Mary Watford [2017] ECC StA 1 The petition was sought for a major reordering, including the removal of pews from the nave and their replacement with Howe 40/4 chairs; alteration of choir pews and other reordering of the chancel; installation of underfloor heating; extensive re-flooring; removal of walls at the west end of the church and installation of glass screens and doors. The Victorian Society was a party opponent. The Deputy Chancellor granted a faculty, concluding that this was an exceptional case where extensive reordering was necessary to meet the needs of the church and the local community. [Link to judgment] [Back] [Top]

Re St. Mary Magdalene Clitheroe [2017] ECC Bla 8 This was a determination of two petitions relating to: a new boiler and changes to the heating system; new lighting and power systems; redecoration; reordering of the chancel; changes to the south door; and disposal of chancel furniture. The Chancellor granted a faculty on the basis that “the harm to the significance of the building caused by removal of furniture and fittings is outweighed by the liturgical freedom created, and the public benefit to be gained by having a flexible area to utilise for worship and other diverse activities”. [Link to judgment] [Back] [Top]

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Reordering and alternative uses

Re All Saints Bramham [2017] ECC Yor 3 The Chancellor granted a faculty for some minor reordering of “a very crowded chancel area”, including inter alia: moving the stone altar forward by 1 metre and the reredos back by 18 cm, and a memorial stone in front of the altar. The work also included the removal and disposal of the children’s choir stalls.

The Chancellor issued Directions stating that he was satisfied that the petitioners had made out a case for their proposal, and subject to the relevant display of Public Notice, a Faculty would pass the seal until further order [3]. The Notice resulted in three letters of objection, and although the writers did not respond to the Registrar’s subsequent communication and they did not become parties opponent [5-8], their views were taken into consideration by the chancellor; furthermore, since this then became a “contested petition” and the costs had to be met by the parish rather than the Diocesan Board of Finance [19].

The minute to the DAC meeting records inter alia: “the [proposed] spotlight should be 3000 Deg k not 6000 Deg k (sic), as the lighting to the wonderful reredos needed to be warm”.  [Note: this is a reference to the colour temperature of the spotlight, see Which colour temperature? and What is the difference between Lumens, Kelvins and Watts? Under the International System of Units (the SI System) the abbreviation for Kelvin (absolute temperature) is “K” whereas “k” is the prefix for kilo (103)].

The Statement of Need records that bringing the altar forwards and removing the children’s choir stalls will allow the celebrant to face westwards during the Communion service, and the average Sunday congregation will also be able to gather in the chancel and the area used more flexibly for worship and other events. With the present layout, the congregation is a minimum of 15m from the altar, and the changes would reduce this distance considerably [10]. [This differs from Re St. Peter East Bridgford [2016] ECC S&N 4 in which a Faculty was granted for the movement of altar westwards by 0.6m to increase space behind for celebrating the Eucharist where the incumbent’s “Anglo-Catholic” style of worship was disliked by a small number of the congregation].

The Chancellor was persuaded that the work was “far from unnecessary” as suggested by the objectors, and was a proper use of modest resources when nay other major works will be advance as funds are made available. Faculty granted. [Link to judgment] [Back] [Top]

Other building works, including re-roofing

Re St. Mary Magdalene Richmond [2017] ECC Swk 7 The vicar and churchwardens sought a number of alterations relating to the reordering of this Grade II* church [1]: “the building is…a good example of an attractive town church, which has grown and been altered incrementally since the sixteenth century” [9]. The raison d’être for the reordering was the replacement of an inefficient, expensive heating system with underfloor heating, and changes in the seating to a mix of high quality, moveable benches made of oak in the nave and stackable chairs in the aisles, to meet present day needs [17]. A substantial part of the cost of the work, estimated at ~£300,000, will be borne by the Richmond Church Charity Estates [19].

The main objection to the scheme was from the Victorian Society in relation to the tiling; in addition, the CBC and DAC expressed reservations as to whether the ledger memorial stones in the nave floor should remain where they were, as part of the new scheme, or be moved elsewhere. The DAC’s concerns reflected “the revered and still pertinent Manifesto (1877) of William Morris” which in essence is “the conservator conserves and does not restore or improve”.

The Chancellor noted that the petition was topical, since in February 2017, SPAB together with the Church Buildings Council issued an Historic Floors Guidance Note.

“[36]. …Although issued jointly with SPAB, this is nonetheless statutory guidance issued by the CBC under section 55 (1)(d) of the Dioceses, Pastoral and Mission Measure 2007 for the benefit of those involved with the conservation of churches.

[39]. “I shall take this Guidance into account in my consideration of this matter”.

The Guidance advocates a conservative approach to the treatment of floors in historic buildings, i.e. an hierarchical approach, “conservative repair”, “minimal intervention” and “replacement”. The Chancellor considered the proposals against the guidelines in Re St Alkmund, Duffield [2013] Fam 158, and in relation to question 4 noted:

[49]. As regards the floor, the justification for moving the ledger stones is, as it stands, primarily an aesthetic one. I do not think that this does provide a strong justification for their relocation.

[50]. As regards the replacement of red and black tiles, the justification is the same, namely an aesthetic one. However it does seem to me to be much stronger: the replacement of a Victorian floor, not of intrinsically high quality and which, if retained, will look aesthetically incongruous, with a high quality stone floor.

With regard to the ledger stones, he said “I cannot properly hold that their relocation is justified on aesthetic grounds. However since the harm caused by relocating them is not great, it may be that in due course their relocation could be justified” [52]. The position relating to the red and black tiles was more difficult [53-55], and concluded [56].

“… it seems to me that the appropriate conclusion is that…the strong presumption against adverse change is outweighed by the benefit accruing from change. Although it does not form the basis for my decision, I note that it is hoped to mitigate the harm by relaying the tiles within the north and south porches”.

A faculty was granted for all the works, including the removal of the Victorian quarry tiles which are to be re-laid in the north and south porches or used or disposed of in accordance with a scheme agreed with the DAC; the ledger stones, however, are to remain in their existing positions, “save as regards the nave, as indicated in accordance with the letter dated 3 May 2017 from the Rector, the Revd Wilma Roest; and (generally) save as may be otherwise agreed with the DAC”. In both cases, the matter is to be determined by the Court in the event of disagreement. [Link to judgment] [Back] [Top]

Re St. Stephen Burnley [2017] ECC Bla 7 In 2005, a faculty was granted [2-3] for the removal of pews from the side aisles of the church and their replacement with chairs upholstered with a blue fabric; and also carpet tiles in two contrasting blue colours had been laid in a chequerboard pattern in the aisles [Shown in photo gallery on St Stephen’s website]. The Victorian Society was highly critical of this decision, referring to the scheme as “insensitive”

The Chancellor commented:

“[4]. During the last 10 years…thinking in these areas has changed and become far more rigorous, particularly following the structured approach to decisions concerning proposed alterations to listed buildings, set out in the decision of the Court of Arches in Re St. Alkmund, Duffield [2013] Fam 158…The Church Buildings Council (‘CBC’) has also taken a more active role with the publication of Guidance Notes, including one on seating. Whatever failures or mistakes are now discerned in earlier decisions, one cannot go back; those side aisle pews were removed, and that seating and floor covering were introduced, and the present decision has to proceed against that background.

The Heritage England (HE) advice was “not entirely critical”, commenting:

“[w]e recommend that the diocesan Chancellor balances whether the harm of the removal of the pews is outweighed by the benefits of the scheme in line with the 2013 Faculty Jurisdiction Rules and paragraph 134 of the National Planning Policy Framework [i.e. 134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use]”.

HE also referred to its Practice Guide New Work in Historic Places of Worship.

The present petition sought permission for up-dating the heating system [5] which necessitated the removal of some of the remaining pews; the proposal included removal of the remaining pews in the central area, each side of the main aisle, laying similar carpet tiles and introducing more upholstered chairs into the nave, to create “a more flexible space”.

Noting the absence of a church hall, the churchwarden explained that the dependency of the church on fund raising events in order to remain financially viable, commenting “the costs of maintaining a Victorian building is a significant financial responsibility. It is essential for our future that we “free up” the space inside the church…the removal of the pews is essential to accommodate the column radiators [an assertion contradicted by the DAC heating engineer (at [26]). These are ‘necessary due to the unusually wide dimensions of the church which makes it impossible to adequately heat the centre of the church with just side radiators (a “requirement” not taken into account in subsequent plans[28])”.

He also relied on observations from the then Bishop of Lancaster, Rt Rev Geoff Pearson…to the effect churches had to respond to the needs of today and get rid of uncomfortable pews and put in comfortable seating – a statement to which the Victorian Society took exception.

Applying Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor considered the seating and heating issues separately and concluded:

“[29]. … The petitioners have approval to remove and dispose of the remaining pews, to carry out any necessary making good, and to introduce the carpet and underlay, and the new seating as described under ‘current proposals’ above. Any replaced materials may be disposed of as thought fit. They have 12 months to carry out this work, (or such further time as is granted).

I grant a confirmatory approval for the heating scheme installed, the greater part of which I approved earlier and gave the green light for in August 2016. They have liberty to apply by letter to the Registrar for further directions in case of difficulty in implementing the above permissions or otherwise. The petitioners must pay an enhanced correspondence fee to the Registrar to cover the considerable extra work involved in resolving this petition”.

[See also Re All Saints West Burnley [2017] ECC Bla 6, infra, and the associated post  Pews vs Chairs: Application of CBC Guidance].

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Removal and replacement of pews &c

Re All Saints West Burnley [2017] ECC Bla 6 The Chancellor granted a faculty for the replacement of the pews in the centre of the church nave and the chairs in the north and south aisles with new wooden chairs having upholstered seats and backs. The judgment contains a discussion by the Chancellor on the nature of the statutory guidance issued by the Church Buildings Council Guidance on Seating and its application. This was considered further our post  Pews vs Chairs: Application of CBC Guidance.  [Link to judgment] [Back] [Top]


Church Treasures/Sale of Paintings &c/Loans

Re St. Ann Oldland [2017] ECC Bri 2 In 1959, a faculty was granted for the introduction into the church of a painting entitled ‘Ecce, Homo’, attributed to Bartolomé Esteban Murillo,  the leading painter in Seville in the later 17th century. In august 2015, a confirmatory faculty was sought for the loan of the painting to the Bristol Art Gallery in 2012, which had taken place without authority. The painting is currently worth ~£150,000 (according to the petitioners [5], and “certainly in excess of £100,000 [23]) and signs of deterioration are apparent. A specialist insurer would be required for a painting of this value.

The petitioners were directed to apply for fresh petition for the removal of the painting to the Bristol Art Gallery, and that the views of the amenity societies were obtained [8]. The specialist nature of this advice substantially slower the progress of this application. The CBC visited the church and the “very full report of its findings” concluded that the best place for the painting was on display at the Bristol Museum and Art Gallery. The church maintained that their “style of service does not use painting and objects as objects of devotion to bring people closer to our Lord”, but having noted the CBC comments agreed to follow its recommendations [21]. The CBC advised that a 5-year loan agreement was arranged with the museum and a high quality copy placed in the church. It also recommended that the parish keep the link with the painting alive by organizing a series of activities and events with the museum to be held at the church, involving the congregation and the local community [22]. The Chancellor granted a faculty subject to this condition.

In addition, a plaque was to be placed by the painting setting out its brief history. The Archdeacon is to decide whether the quality of the reproduction is suitable to be installed in the church, and also the position of its installation, having received representation from the petitioners. In the event of any disagreement with the Archdeacon, the Chancellor will decide what is to be installed, and where [26]. [Link to judgment] [Back] [Top]


Exhumation

Family graves

Re Castle Bytham Cemetery [2017] ECC Lin 1 The Petitioner and his wife sought permission to exhume the cremated remains of their late son, interred in Castle Bytham in an oak casket in 2002, and re-inter them in Grantham where they now lived. The grounds for making the application were: (1) the petitioner and his wife were unable to visit the grave at Castle Bytham due to their age and frailty; and (2) the Petitioner and his wife had purchased a grave plot at Grantham Crematorium with the intention that their son’s remains should be placed their and their own cremated remains would be placed in the same grave in due course. Following the principles laid down in Re Blagdon Cemetery [2002] Fam 299, the Chancellor could not grant a faculty on the first ground, but he granted a faculty on the second ground, since a family grave had been established. [Link to judgment] [Back] [Top]

Re St. Peter Edgmond [2017] ECC Lic 4 The petitioner’s mother died in 1993, having expressed a wish to be cremated, and her remains were interred in the area set aside for cremated remains in Edgmond churchyard. The Petitioner’s father died in 2016, having expressed a wish to be buried near to the remains of his wife, and his body was interred in another part of the same churchyard. The petitioner and his sisters wished to have the cremated remains of their mother exhumed and reinterred in their father’s grave, so that both parents’ remains would be together in a family grave.

The petition had the support of the incumbent and the Parochial Church Council. From the minutes of the PCC meeting it was apparent that the decision to support the petition was only made after careful reflection in which the Council took account both of the presumption that Christian burial will be permanent and of the circumstances of this particular case. Furthermore, the Chancellor noted that it was apparent from the Petitioner’s letter in support of the petition that neither he nor his sisters had taken the step of seeking exhumation lightly [5].

In granting the petition, the Chancellor commented [emphasis added]:

“[11]. This is not a case where a mistake was made in relation to the interment of [the deceased’s] remains. There was a deliberate decision to inter those remains in a particular part of the churchyard of St. Peter’s. Nonetheless, I am satisfied that it is a case where reflection would have been highly likely to have led to a different approach being taken at the time…

[12]. The effect of the proposed exhumation and re-interment will be for the remains of [the deceased] and [her husband to be in the same grave. That would be a family grave containing the remains of both husband and wife. The creation of a family grave is a circumstance capable of justifying exhumation in an appropriate case. I am satisfied that this is such a case and that exhumation is justified. There are two features of particular significance here. The first is that it is apparent that exhumation is not sought lightly by the family of [the deceased]. The second is that the re-interment is to be in the same churchyard as that in which the remains were originally interred. This is not a case where the remains of [the deceased] are being treated as being in some way “portable” or in which the permanence of Christian burial is being challenged. Rather it is one where there is a proper and understandable proposal to reunite the remains of husband and wife in one plot in the same churchyard as currently contains those remains in separate plots. In those circumstances the grant of the faculty is justified.

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Errors in burial

Re Crigglestone Cemetery [2017] ECC Lee 3* The petitioner sought a faculty for the exhumation of the cremated remains of her son, John Nicholas Dixon, from Crigglestone Cemetery so they might be placed in a niche or columbarium in the garden of her home. On 21 November 2016, the Chancellor made a direction that on the information supplied, the application was most unlikely to succeed because the law requires an exceptional case to be made out. He allowed 28 days for further representations, but no communication was received and her petition stood dismissed; there was no determination on the merits. However, a letter was sent by the petitioner on 23 May 2017 indicating of her consent to the matter being determined on written representations.

On reviewing the circumstances of the case [8-11] the Chancellor commented [12]:

“It is impossible to read the petitioner’s letter without an outpouring of compassion for her as she continues to grieve the loss of her son. Her raw emotion exhibits various expressions of grief – anger, blame, regret and guilt – together with a wish to do everything in her power to bring into effect what she believes John would have wanted”.

Nevertheless, he concluded:

“…I remain of the view provisionally expressed in my earlier direction that this is not an appropriate case for authorising the disinterment of John’s remains from the consecrated part of Crigglestone Cemetery for their introduction into an unconsecrated domestic setting in the garden of the petitioner’s current home.
[…]
[The petitioner’s] regret in hindsight is not indicative of there having been a mistake at time, as interpreted in Blagdon and subsequent cases.

Faculty refused. [Link to judgment] [Back] [Top]


Churchyards and burials

Development of churchyard

Re St. Peter Terwick [2017] ECC Chi 2 The Chancellor determined to grant a faculty to allow part of the churchyard to be reused for burials, but proposed to stay the issue of the faculty until the parish had considered whether to ask for a set of bespoke churchyard regulations limiting the types of stone which could be used for memorials, in order to preserve the character of the unique setting of the small country church set in the middle of a field. The judgment includes a summary of the position in England and Wales on the shortage of burial space, and a commendation of the petitioners’ approach. A subsequent post will consider the issues raised in the judgment in more detail.

[Link to judgment] [Link to post, t.b.a.] [Back] [Top]

Churchyard Regulations

Re St. Mary Magdalene Lyminster [2017] ECC Chi 1* The petitioner sought a faculty for the introduction of a memorial into the churchyard of St Mary Magdalene, Lyminster, to mark the grave in which the remains of her husband were interred on 2 March 2016. It is intended that when the petitioner herself dies, her remains will also be interred in this grave. The petitioner also wishes for the remains of their son, who died within hours of his birth in 1966 to be exhumed and reinterred in this plot; however, there was no separate petition seeking a faculty for such an exhumation.

The Chancellor addressed the misrepresentation in original application, whereby the proforma, signed by the petitioners and countersigned by a monumental mason, asserted [4]:

“I/we have read the General Directions of the Chancellor of the Diocese concerning Memorials in Churchyards and claim that you have power under those Directions to permit the introduction of the proposed monument into the Churchyard.”

However, Chancellor Hill commented [emphasis added]:

“[5]. This representation was false. It was self-evident that the incumbent did not have power to introduce the memorial because (a) it was to be fabricated of polished black granite; (b) it was to include kerbs and vases/flower holders and (c) it was to be infilled with grey chippings. Whilst I might be prepared to overlook the shortcoming on the petitioner’s part in not fully understanding the declaration she was making, the fault of the monumental mason is egregious. I will instruct the registrar to write to the firm and unless it can provide a signed undertaking that it has read the Directions and that it will take care not to make false representations in the future, I will consider making an order prohibiting the firm from carrying out work in any consecrated churchyard of the diocese of Chichester which is subject to the faculty jurisdiction. Had [the firm] been more professional, much of the petitioner’s distress and heartache might have been avoided”.

The Chancellor refused to grant a faculty as the proposed memorial was outside the churchyards regulations and he considered it inappropriate for the particular churchyard. He also made it clear that the unlawful introduction of unsuitable memorials of a similar type in the past did not justify the current proposal, and the court would give serious consideration to a petition to remove memorials which have been introduced without authority [15].

With regard to the exhumation desired by the petitioner, the Chancellor alerted her to the strong presumption against exhumation articulated in Re Blagdon Cemetery [2002] Fam 299. There was insufficient material for him to consider the matter. However, without prejudicing the determination of any future petition, he suggested that this may be a case where an exception could be made on pastoral grounds. [Link to judgment] [Back] [[Top]


Links to other posts

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

Reordering, extensions & other building works

Churchyard development

  • Reuse of graves – further considerations, t.b.a.

Navigation

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. [Clicking on the citation will link to the L&RUK summary of the case]. “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.

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 – July" in Law & Religion UK, 3 August 2017, http://www.lawandreligionuk.com/2017/08/03/ecclesiastical-court-judgments-july-2/

5 thoughts on “Ecclesiastical court judgments – July

  1. The first part of this review (on Anglican pew modification) looks to an outsider very much like the careful re-arranging of deck-chairs on the Titanic.

    • Whilst issues associated with pews and chairs might seems like an Anglican preoccupation which the church courts must resolve, there are a number of issues which a chancellor must take into consideration, many of which are concerned with the perception of a pewed church; many Anglicans and non-Anglicans assume that a church with Victorian pews and other furniture is “what a church should look like” and are resistant to change. The Victorian Society has its own nuanced view of this issue. Whilst complaints about the comfort of seating are quite common (and can come from those who seldom sit in the pews), the courts place substantial importance on the mission of the church, as identified by the incumbent, and the use of the church building for the community at large for Anglicans and non-Anglicans.

    • You may think that, Alan, but for outfits like the Victorian Society, it’s not just a matter of life and death – it’s more important than that!

  2. re Lyminster. Your link (and the original link at the ELA site) lead to the 2014 re-ordering judgmen: Re St. Mary Magdalene Lyminster [2014] Mark Hill Ch.

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