Review of recent ecclesiastical court judgments
Ecclesiastical court judgments in October and November have addressed the areas listed below, in which issues relating to exhumation have featured strongly. Re Welton Road Cemetery Daventry attracted interest in the media and local radio, and likewise, the CDM hearing of a further complaint against the Revd David George Huntley. Separate post have been published on both cases.
Prior to the publication of this post, agreement was reached between the parties in Re St. Botolph Longthorpe, the first hearing and Arches Court order of 6 October 2017 of which are summarized here. The Victorian Society has published a Press Release on the proceedings, and we will post a longer review at a later date. Likewise, a future post will summarize the lessons to be learned by PCCs from Re St Bartholomew Old Whittington.
Re St Botolph, Longthorpe  ECC Pet 1 On 10 March 2017, Chancellor David Pittaway QC granted a faculty which authorized a major scheme of reordering. This included: the removal of pews and their replacement with hardwood chairs and benches; moving the font and the organ; replacing the altar against the east wall and installing a free-standing altar at the west end of the chancel; and removing the rood screen. Notwithstanding the objections of ChurchCare, Historic England, and the Victorian and Twentieth Century Societies, the Chancellor was “satisfied that the reordering is part of an overall holistic scheme for a thriving church community, which will be a major public benefit outweighing any harm.” The Victorian Society subsequently sought leave to appeal, which the Chancellor declined to grant. It then sought leave to appeal from the Dean of Arches, who granted leave to appeal on some of the grounds sought, below. [Link to judgment] [ Back] [Top]
Re St Botolph, Longthorpe  EACC 4 On 6 October, the Dean of Arches granted leave for the Victorian Society to appeal against the decision of the Chancellor of the Diocese to allow reordering works in Longthorpe Church. [Link to Order] [ Back] [Top]
Re St Botolph, Longthorpe  EACC xx. On 22 November 2017, there was a joint application by the parties for an order by consent in the terms of an attached order.
With thanks to the Victorian Society for an early copy of the Joint Application and other relevant material.
Re Kenilworth Cemetery  ECC Cov 3* The petitioner’s father died in 2005 and his cremated remains were interred in the cemetery. During her lifetime, his widow had expressed a wish to have her cremated remains buried in a more accessible part of the cemetery, and for her husband’s cremated remains to be exhumed and reinterred in the same grave as her own remains. The widow died in 2017. The petitioner, her daughter with the support of the couple’s other children, applied for a faculty for exhumation and re-interment of her father’s ashes, even though it would be possible to inter the ashes of her mother in the plot where her father’s ashes were interred.
The Chancellor commented:
“. … this case is not one where there was a mistake at the time of the original
interment. Instead it is one where [the petitioner’s mother] changed her mind over the course of time as to the appropriateness of the original plot. That is not something which can amount to a special circumstance justifying exhumation. This is particularly so in a case such as the present where it is possible for the remains of [the deceased] to be placed in the original plot with the effect that her remains and those of her husband will be in the same grave.
If during her lifetime [the deceased] had petitioned seeking exhumation of her husband’s remains on the basis that she had come to believe that a different plot was a better resting place for those remains and for her own in due course such a petition would almost certainly have failed.
The fact that the petition has been brought after the death of [the petitioner’s daughter] cannot alter the underlying conclusion that there are no special circumstances such as to justify exhumation in this case”.
Re St Michael & All Angels Brownsover  ECC Cov 4* The Petitioner wished to have the cremated remains of her parents-in-law exhumed from the churchyard of the now redundant church at Brownsover and reinterred in the churchyard where her late husband’s remains were interred.
The church was closed on 6th January 1987 and responsibility for the maintenance of the church passed to what is now the Churches Conservation Trust, which has responsibility for maintaining the paths around the church but not the churchyard more generally. The churchyard was closed by Order in Council on 27th July 2004. Responsibility for maintaining the churchyard then passed to Rugby Borough Council [7 a) and c)].
In applying, the Chancellor noted:
“. The position here is that the churchyard has become overgrown. At the time of my site visit it was in a state of neglect with many memorials not visible and others encumbered by brambles and nettles. However, there is a public body which has responsibility for the maintenance of the churchyard namely Rugby Borough Council. Moreover, the Parochial Church Council and the Churches Conservation Trust have an interest in the site and have caused maintenance to be undertaken in the past.
. …I cannot be satisfied, given that a public body has responsibility for maintenance of the churchyard, that the physical condition of the churchyard will become such that the churchyard is no longer an appropriate resting place for the remains of [the petitioner’s later parents]. It follows that the petition must be dismissed.
Re St Michael & All Angels Pelsall  ECC Lic 5 The petitioner’s mother died in 1991, and the family had little option but follow the current policy of the incumbent and PCC on cremated remains: interred closely together in a double row with memorial tablets touching adjacent ones. Some years later, under a different incumbent and PCC, the burial policy changed in relation to an area where cremation plots were wider and interments were marked by upright stones.
The petitioner’s father disliked where his wife had been interred, which he thought unseemly on account of its paved appearance. Prior to his death in 2017, he arranged for his own remains to be interred in the new area. The petitioner wished to have his mother’s cremated remains moved to his father’s grave. The Chancellor decided that the combination of three circumstances – the family’s unhappiness about the interment in 1991, the change in policy of the PCC, and the creation of a family grave by placing the wife’s remains with those of her husband – justified him in granting a faculty.
“. If any one of those elements had stood alone … it unlikely that there would have been special circumstances justifying exhumation. However, they do not stand alone … the combination of those elements has the effect that in this case there are special circumstances justifying exhumation and that the proposed exhumation and re-interment is a course which the Court should authorize”.
A faculty was granted subject to the re-interment of the ashes meeting current Churchyard Regulations which reflected present-day ecological concerns .
Re Welton Road Cemetery Daventry  ECC Pet 2 The petition arose because of a mistake made by Daventry District Council (“the Council”) . In 1987 the petitioner reserved for herself a cremation plot in the cemetery immediately next to the plot in which were interred the cremated remains of her parents. In 2016 she noticed that an interment had taken place in the plot which she had reserved. This situation had come about because in 2015 the burial authority had by mistake granted an exclusive right of burial in the same plot to someone else. The petitioner therefore applied for a faculty for exhumation of the cremated remains interred in the plot she had reserved in 1987. The initial error was further compounded by the Council…
“. …who after the mistake was drawn to their attention…incorrectly made an application to the Ministry of Justice for exhumation, before appreciating that it was necessary for them to apply for a faculty…There were several errors surrounding the Council’s attempts to remedy the situation, which could, with more care, have been avoided. For example, amongst others, the original letter…specified the wrong plot number and the alternative plot offered was not available”.
Noting both old and new authorities, including In re Christ Church, Alsager  Fam 142, 149 and the recent decision In re Fairmile Cemetery, Lower Assendon  ECC Oxf 2, the Chancellor stated that in his judgment, the principles he should follow are clearly set out in In Re Blagdon Cemetery  Fam 299. In addition, Mark Hill QC referred him to Dr Christopher Hill’s article: “A Note on the Theology of Burial in Relation to Some Contemporary Questions” 7 Ecc LJ 447, which provided “a useful theological background to [his] decision making” .
The Chancellor stated  it was clear that the interment of cremated remains of the Party Opponent’s mother in plot A239 was unlawful and contrary to Art 10(6) of the Local Authorities Cemeteries Order 1977; in his view, the second petitioner (Mrs Phillips) remains entitled to be buried in plot A239, having purchased the right of burial in 1987 with the intention of being buried adjacent to her parents.
Accepting the principle of the permanence of Christian burial, the Chancellor noted that it was “well-established that a mistake can amount to an exception”, and in his view “what has taken place in this case is a paradigm example of the type of mistake that the Court of the Arches envisaged in In re Blagdon Cemetery .
With regard to costs, at an early stage (when it was anticipated that the Chancellor would receive submissions in writing) the Council offered to contribute £1,500 towards the costs of each of the parties. However, since an oral hearing took place, the Chancellor directed that the Council should show cause as to why they should not pay the other parties’ costs to be assessed by the Diocesan Registrar, if not agreed . [Link to judgment] [Back] [Top]
Re St Paul the Apostle Choppington  ECC New 1 The petition, dated 6 December 2016, concerned the churchyard of St Paul the Apostle, Choppington and St Peter’s Churchyard, West Sleekburn, in the Parish of Choppington. The Vicar and a churchwarden sought a faculty to: authorise retrospectively the laying flat in the churchyard of 51 memorials, which in 2015 had been classified as unstable; and seek authority to lay flat on a temporary basis any memorials which are found to be unsafe following health and safety surveys to take place in 2016 in both churchyards. It also sought permission permanently to dispose of and recycle a pew previously removed on a temporary basis pursuant to an Archdeacon’s Licence. There had been much disquiet locally about the laying flat of so many memorials in 2015, and the Chancellor was concerned that there had not been adequate notification to families who might have been contacted prior to the laying down of the memorials:
“Having studied all of the material before me with care and accepting as I do that at all times the Petitioners have acted entirely sincerely and with complete bona fides, the Chancellor was prepared to grant a retrospective faculty in respect of the temporary laying flat of the 51 headstones in 2015 ”.
However, he concluded [emphasis added] :
“. In the light of all of the material before me and in order to deal with the – albeit slight – risk of injury should any particular headstone be found to be in an immediately dangerous condition I am prepared to authorise the temporary laying flat of any such headstone for the remainder of 2017 but, given the history of this matter, I make it a proviso that no headstone can be laid flat without the express permission of the Archdeacon of Northumberland and I expect that the Petitioners will involve the Archdeacon and seek advice from him in relation to the general management of the churchyards”.
In the Matter of George Goodall Deceased  ECC Bir 2 The deceased had been buried in a line of graves next to the churchyard footpath. It had been the practice for some years that bodies were interred with their heads to the west, next to the footpath, and their feet to the east (in accordance with the traditional practice), but that memorials were placed at the foot of each grave and facing the footpath.
The petitioners were unhappy that the memorial to their relative was at the foot of the grave, and applied for permission to move the memorial to the head of the grave. The Chancellor refused to grant a faculty: “… it does not seem appropriate to me to grant the Petition because by doing so I would be interfering with a reasonable policy adopted by the PCC and … imposed upon the relatives of all the other deceased buried in the area.” [Link to judgment] [ Back] [Top]
Re St Bartholomew Old Whittington  ECC Der 4 The petitioner sought to install a memorial of York Stone consistent with the diocesan Churchyard Regulations into an area of the churchyard known as the Croft. The Rector, PCC and a number of private individuals objected to the material to be use, because allegedly the PCC had made a decision in the past that only grey granite stones should be permitted in that particular area. However, the PCC was unable to produce any evidence of a decision by the PCC to that effect. The Chancellor pointed out that a PCC can only have a variation to the diocesan regulations if such variation is approved by the Chancellor of the Diocese. He concluded by saying:
“. I have not the slightest doubt that the decision I have reached will not only be a disappointment to the objectors, but cause annoyance and anger. It will perhaps be a reminder of the need to record things properly, including the decisions of the PCC, and insofar as they relate to changes to the diocesan Churchyard Regulations, to have those approved by the Chancellor”.
The Chancellor granted a faculty for the memorial of York Stone, but added:
“. There is nothing to prevent the PCC approaching me at this stage to seek a faculty to endorse a clear decision by them that only ‘honed grey’ stone is to be used in the churchyard. It will not be automatically approved, and the PCC will need to justify why such a rule should be adopted…”
and gave an indication of the evidence that would be needed is support of such a change.
Although the judgment did not raise any new issues in the relevant legislation, in identifying the weaknesses of the arguments used by the Rector and PCC, it provided useful guidance which may be of use to others; these “home truths” will be considered in a separate post.
Re Holy Trinity Coventry  ECC Cov 5 The churchyard at Holy Trinity was closed by an Order in Council dated 1st May 1855; on 2nd August 1956 a faculty was issued authorising the use of “a suitable portion of the churchyard for the interment of ashes of the dead (such persons having been members of the congregation of Holy Trinity Coventry aforesaid)” .
In 2007 the Parochial Church Council passed a resolution implementing a policy which: restricted the interment of ashes in the closed churchyard to those of people on the electoral roll at their death, and whose names has been on the roll continuously for at least the last ten years; also did not permit further memorial stones . The policy has been applied since June 2007, although it appeared that a garden of remembrance or other formal area for the burial of cremated remains had not been created; the 1956 faculty had been interpreted as permitting interments throughout the churchyard .
The petitioner wished to have his wife’s cremated remains interred in a new plot and a memorial plaque placed over the plot. She had been on the electoral roll for three years, but the family had worshipped at the church for many years and members of the family were buried in the churchyard, with the burials marked by memorials [6-7]. However, the incumbent and PCC contended that if there is an interment in a new plot, there should be no memorial 9]. The DAC recommended approval of the Petition, and “felt that due to the long association of the family with this church the recent non-attendance was a relatively minor point” .
The Chancellor reviewed the PCC’s policy on interments [14-18] and the law governing the erection of memorials, [19-28]. With regard to the instant case, he noted that “performing the balancing exercise [was] not an easy one. The Church Council has adopted a policy on memorials and although affected by a mistaken understanding of the law the policy is not intrinsically unreasonable” .
He accepted that “there is considerable force in the competing contentions on both sides” but “the longstanding connexion which [the petitioner] and his family have with this church and the nature of that connexion justify the grant of a faculty. This is particularly so when the weight to be attached to the policy of the church council is weakened” . [Link to judgment] [Back] [Top]
Re St Leonard Monyash  ECC Der 3 The Churchwardens of St Leonard Monyash sought a faculty to fell a lime tree situated in the churchyard adjacent to a domestic property, The Old Reading Room, Church Street, Monyash, Derbyshire. The petition was at the request of the owners and occupiers of the property and was based upon a report prepared for them by a specialist tree services firm . The tree in question was not the subject of a tree preservation order, and although lying a Conservation Area, the Peak District National Park Authority had confirmed in writing that it had no objections; both PCC and DAC supported the application.
The tree specialist supported the property owners’ concerns regarding potential damage and increased maintenance from overhanging branches, which would also cause shading of their garden. There was also concern that in future, the tree’s roots may cause damage to the French drain from the property . A letter of objection stated that the tree in question had been assessed previously and was not considered to be any need to remove it, and was of the opinion that the tree in question should not be removed. .
The Deputy Chancellor welcomed the offer by the PCC to replace the tree with at least another which can be planted in a more suitable location and property owners’ willingness to pay for a complete removal of the tree, including the stump . He granted a faculty to authorize the felling of the tree and the removal of its stump, on condition that at least one tree is planted elsewhere in the churchyard to replace it; the works is to be carried out once the tree’s leaves have fallen and should be carried out within twelve months. [Link to judgment] [Back] [Top]
Re St Paul St Albans  ECC StA 2 The Chancellor granted a faculty to allow the disposal of the existing pipe organ and its replacement with an electronic organ. The existing organ appeared to date from about 1915 (possibly earlier), originating from a church in Brighton, but was “a second-rate instrument of little historic, musical or artistic merit having suffered repairs and alterations since installation” . It was variously described as “a shadow of its former self” (diocesan organ adviser) and “rather “‘vin ordinaire’” (petitioners’ organ consultant).
It was estimated that removal of the existing organ and its replacement with a digital organ would cost £17,850 , whereas repair of the “unreliable and unpredictable” pipe organ could cost as much as £55,000 .
There were many written objections, many from regular long-time worshipers, and some letters &c of support for the proposal. The Chancellor took into account inter alia: reports of the Diocesan Organs Advisor; the petitioners’ independent advisor; the DAC recommendation of the proposal; the petitioners and PCC supporting the proposals; and unlisted status of the church. Faculty granted, subject to conditions on the disposal of the existing organ. [Link to judgment] [Back] [Top]
Re Revd David George Huntley, Decision and Penalty, (October 2017)
Recent summaries of specific issues that have been considered in the consistory
- Aspects of burial law from Brady’s funeral judgment, (171108).
- Judge directs conditions for Ian Brady’s funeral, (171013).
EA Permit Application LN3 4AB, Ss Peter and Paul Parochial Cherry Willinham PCC: environmental permit application, 20 October 2017. The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 from Ss Peter and Paul Parochial Cherry Willinham PCC. The application related to discharges to groundwater of 0.2 cubic metres per day of untreated waste water from a Trench Arch System.
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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.