Ecclesiastical court judgments – December and January

Review of the ecclesiastical court judgments during January 2018, & additional judgments from 2017

Following our recent post which reviewed some of the ecclesiastical court judgments published in December, ten further judgments for 2017 are now available in addition to three from 2018. In addition, the neutral citation of Re St. George Chorley has been renumbered as [2017] ECC Bla 12.

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


Reordering, extensions & other building works

Substantial reordering

Re St. Nicholas Great Kimble [2017] ECC Oxf 3 A faculty was sought for extensive reordering works which inter alia would to allow the church to be used specifically by the local Church of England school and more generally by the community: the Victorian Society objected to the laying of the proposed wooden floor and the consequent removal of some Victorian floor tiles; the Church Buildings Council objected to the proposed new position for the font. Both objected to the use of upholstered pew benches. The Chancellor granted a faculty, subject to a condition that the new pew benches should not be upholstered; however, these may have separate cushions, subject to the material (including its colour)being approved by the court.

[Note: Not all chancellors are convinced by the logicality of the arguments in favour of the use of removable cushions: See “The last word on the “pews vs chairs” debate…“].

[Link to judgment] [Back] [Top]

Other building works, including re-roofing

Re St. Peter & St. Paul Pettistree [2017] ECC SEI 6 In 2014, a faculty was granted in 2014 to authorise the redecoration of the interior of the church using four coats of limewash. Removal of the old emulsion indicated that the walls were poor condition which were “patchy” and “deep green” in various area. It was considered that four coats of limewash would be insufficient to cover the walls; the architect favoured a product called Zinsser Grade 1 paint. He obtained the PCC’s permission to use it and instructed the contractors (R and J Hogg Limited, hereinafter “RJH”) to use the paint instead of limewash, which they did with reluctance. Within a month of application, the paint was peeling off the walls and at the request of the Chancellor, the Archdeacon applied for a restoration order.

The Chancellor granted the order, stating that the architect should not have directed the use of an alternative covering without obtaining first a variation of the faculty. He further directed that the architect should meet the cost of the remedial work, and observed that it may assist the DAC to have his general observations circulated. In view of the general applicability of these observations, we have published them in a separate post. [Link to judgment] [Link to post] [Back] [Top]

Re St. Simon Zelotes Upper Chelsea [2018] ECC Lon 1 The vicar and churchwardens sought a faculty to reorder the west end of the church by extending the west gallery to the north and west aisles, to introduce an accessible WC below the north-west corner of the extended gallery and enhance the existing catering facilities and musicians’ area. They also proposed introducing speakers into the chancel and the making good of tiles in the floor at the front of the church. The Victorian Society was a party opponent. The Chancellor was satisfied that “any prejudice to the architectural integrity is outweighed by the pastoral and liturgical benefits and applying the balance of probabilities the Petitioners have made out their case.” Faculty granted. [Link to judgment] [Back] [Top]

Removal and replacement of pews &c

Re St. Mary Magdalene Cresswell [2017] ECC Der 6 There was a proposal to remove the pews from the side aisles, with a view to replacing them in due course with new seats. In the meantime there were some plastic seats in the church, which could be placed in the side aisles when a large congregation was expected. The Chancellor was concerned that no detailed proposals had been presented in respect of replacement chairs, and was cautious about the ability of the small congregation to undertake this “any time soon”, if at all. Chancellor Bullimore noted that any decision as to what is to be introduced by way of replacement seating has to be carefully assessed, and this “can be as damaging to the appearance and significance, as an ill-judged decision about removal”.

Nevertheless, a faculty was granted for the removal of the side aisle pews, but subject to conditions that the existing plastic chairs should not be left in the side aisles when not needed, and that the petitioners should by the end of 2019 put forward detailed proposals for replacement chairs. [Link to judgment] [Back] [Top]

Re St. John the Evangelist Killingworth [2017] ECC New 2 The Vicar and Churchwardens sought a faculty for the removal of all of the pews from the chancel and nave of the Grade II church, and their replacement with 120 wooden upholstered chairs. There were objections to removal of the pews and to their replacement with upholstered chairs. The Victorian Society objected to the removal of all the pews, and suggested that the existing carpet should be removed. The Chancellor determined that the petitioners had made a good case for the removal of the pews from the nave and for replacement chairs with upholstered seats, but not for the removal of the pews from the chancel. The retention of the pews in the chancel would maintain a discrete formal area, which would not affect the main objective of allowing for much greater flexibility of worship and other events in the nave. [Link to judgment] [Back] [Top]


Church Treasures/Sale of Paintings &c/Loans

Re Romsey Abbey [2018] ECC Win 1 A faculty was sought to allow the introduction into the Abbey of a diptych, one part of which portrays St. Ethelflaeda, one of the patron saints of the Abbey; the other part of the diptych depicts a candlestick. The Statement of Significance submitted by the Petitioners said that the painting was designed “to be challenging and controversial”, and to encourage “members of the congregation and visitors alike to contemplate the serenity of the abbess’s face and reflect on our own faith and spirituality”.

“[4]. The diptych … comprises two rectangular panels of canvas stretched over wooden frames, each being around 0.5m (width) by 1.5m (height) in size. It refers to a legend from the life of St Ethelflaeda. The lights had gone out, but light miraculously emanated from the saint’s hands so that the nuns could continue to read scripture. The left panel shows the saint, the right panel a candlestick.

“[5]. The painting hangs presently in the south aisle of the Abbey. Each panel of the diptych occupies a blind arch on that wall. It was specifically created to fit in that space. The location is said to be particularly apt because it is adjacent to the door, presently disused, by which the nuns would have entered the Abbey”.

The work was created specifically for the Abbey by artist Christopher Gollon, and the size, colours and composition of the painting are said to be specifically suited to the position which they occupy in the Abbey. Following its display at an exhibition in October 2016, the painting was offered for sale to the Abbey at what is said to be a discounted price of £6,000. The PCC decided to apply for a faculty by 15 votes to 1.

The comments of the 15 objectors, none of whom became parties opponent, included: the painting lacks artistic merit; it does not “enhance or beautify the Abbey in any way” and is “ugly”; “The ‘Saint’ is sinister and anatomically impossible and the candlestick, as often commented… looks like a giraffe neck”; the painting is not edifying/spiritually beneficial; it is “dark and disturbing”, “grotesque” … and “raises nothing but horror”; it detracts from the architecture of the Abbey, [9 (a to (e)]. [Readers may gain an impression of the work from an image reproduced in an article in the Daily Telegraph]. 

The Chancellor commented [emphasis added]:

[10]. I can deal with the final two points [objections] directly. The PCC is the elected governing body and has decided (subject to the grant of a faculty) to acquire the painting. In normal circumstances it is not for me to go behind that decision; to do so would be in effect to tell the church how to spend its own money. The points about consultation are more concerning … Ultimately, however, the public notice procedure for this faculty application has ensured that different points of view can be heard, curing any defects in the process leading up to the petition … “

On reading the papers, the Chancellor was at first minded to refuse the faculty, but having visited the Abbey, he was “just satisfied on balance” that the presumption in favour of things as they stand is outweighed by the benefits of retaining the painting permanently.

“[16]. …The Abbey is large enough, and the painting’s size and location are discreet enough, that it need not present an obstacle to worship to anyone who is displeased or offended by it. Indeed it is invisible from various parts of the nave.

[17]. As such, those who find the painting beautiful, helpful and spiritually uplifting can continue to benefit from its presence, and it can continue to play a part in the Abbey’s outreach and mission. Those who are disturbed or displeased by it need not dwell on its presence. It seems to me that the Abbey is a large enough space, physically and spiritually, to accommodate both camps. If a future PCC finds that this is not the case, the addition is fully reversible.

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


Exhumation

Re Newcastle Under Lyme Cemetery [2017] ECC Lic 6 In January 1995 the cremated remains of Harold Bristeir were interred in plot 15000 in the cemetery. It was the intention at the time that when his wife Joan Bristier died, her remains would be interred in the same plot. In March 1995, Mrs. Bristeir’s brothers, Michael and Roland Durber reserved rights of burial in the adjacent plot 14999. When Roland died in 2011, his remains were interred in plot 15000, owing to a mistake by the burial authority. This mistake came to light in 2017, when Mrs. Bristeir died, and the error was only discovered on the day before her funeral. In the circumstances, Mrs. Bristeir’s daughter reluctantly agreed for her mother’s ashes going in plot 14999. However, she later regretted that decision in haste and applied for the exhumation of her mother’s ashes and Roland’s ashes and their reinterment in the correct plots. The Chancellor found that, owing to the mistake by the burial authority, he was justified in allowing the two exhumations and reinterments. [Link to judgment] [Back] [Top]

In the Matter of David Ernest Newton [2018] ECC She 1The petitioner, whose mother had died recently, wished to exhume his father’s cremated remains from the parish where his father had spent his early childhood, and to inter the cremated remains of both his parents in a plot in the grounds of Rotherham Crematorium, opposite which his parents had lived for 45 years. During her lifetime the petitioner’s mother had regretted her decision to have her husband’s remains interred in the parish where he lived as a boy and had expressed the wish that her remains and those of her husband should be buried together in the cemetery they both knew so well.

The Chancellor decided that this was a case where an exception should be made to the general rule against exhumation, and granted a faculty: “I consider that the reasons for granting it satisfy the Blagdon test of being exceptional and the Alsager test of there being a good and proper reason such that most right thinking members of the church would agree. I have cautioned myself against importing or introducing a concept of the remains of a deceased person being generally portable.” [Link to judgment] [Back] [Top]


Churchyards and burials

Development of churchyard

Re St. Peter Bredhurst (2) [2017] ECC Roc 10 The Team Rector, a churchwarden and a deputy churchwarden applied for a confirmatory faculty for “retrospective approval for a prayer walk in the wooded area of the churchyard, including the introduction of a path, carved mushrooms inscribed with prayers and artwork designed following a study day.” The Public Notice resulted in two letters of objection, but there were no parties opponent. The Chancellor was satisfied that the works were appropriate and directed the issue of a confirmatory faculty. [Link to judgment] [Back] [Top]

Churchyard Regulations

Re St. Peter Bredhurst (1) [2017] ECC Roc 9 The petitioners wished to obtain permission to remove from the churchyard all items that were not allowed under the churchyards regulations, such as “figurine gnomes, garden gnomes, figurine angels, cupids, balloons, and solar lamps, etc.” together with rose bushes and other shrubs planted on graves. There were several letters of objection, but no objector became a party opponent. The Chancellor granted a faculty: “As a matter of logic and common sense, since there are regulations in force, it would be manifestly absurd to have them broken as each person deems fit … In my judgment it is not proper for a person to take the law into his own hands, and then cry ‘foul’ when action is taken against him.” [Link to judgment] [Back] [Top]

Reservation of grave space

Re St. Wilfrid Davenham [2017] ECC Chr 2 In 2010 the petitioner had approached the then Rector regarding the reservation of a grave for himself and his wife. The Rector subsequently wrote to the petitioner to say that the grave in question had been reserved, though in fact no faculty had been granted. In 2015 the PCC refused to support another application for the reservation of a grave, and the Chancellor had refused a faculty in January 2016, on the grounds that the churchyard was almost full of burials and closure was contemplated. When the present petitioner became aware in 2017 of the PCC’s refusal to support a faculty in 2015, he was upset, firstly, that he had not been advised in 2010 that a faculty was required, and, secondly, that a ‘precedent’ appeared to have been set by a refusal of a reservation in 2015/16. He applied nevertheless for a faculty. The Chancellor granted a faculty in the special circumstances of the case, making it clear that he did not do so as a result of the petitioner’s position as a reader in the parish, but because since 2010 the petitioner and his wife had entertained a reasonable expectation that their burial arrangements had lawfully been approved. [Link to judgment] [Back] [Top]

Re St. Michael Hulme Walfield [2017] ECC Chr 1* The petitioners wished to reserve a grave in the churchyard of Hulme Walfield. They did not live in the parish. In Schedule 2 of the petition it was indicated that the incumbent and Churchwardens did not consent to the reservation. The Chancellor declined to grant a faculty on the basis that a burial of a non-parishioner could only take place with the consent of the incumbent, who should have regard to any general guidance given by the PCC (s 6(2) of the Church of England (Miscellaneous Provisions) Measure 1976). So to grant a faculty would be to subvert the purpose of Section 6(2) of the 1976 measure, since the reservation of a grave by faculty would override the minister’s power to give or withhold consent to the eventual burial of non-parishioners. [Link to judgment] [Back] [Top]

Re St. John the Baptist Barlaston [2017] ECC Lic 7 The petitioner wished to reserve a grave in the churchyard. She had lived in a house overlooking the churchyard for 51 years. Her mother was buried in the churchyard and it was proposed that in due time her father would be buried in the same grave as her mother. In February 2017 the Parochial Church Council had resolved unanimously that it would not support any further applications for the reservation of grave spaces in the churchyard, as the churchyard was getting full. The Chancellor refused to grant a faculty. He considered that the PCC’s policy was reasonable in the circumstances, and that the personal circumstances of the petitioner and her connections with the churchyard did not amount to exceptional circumstances justifying the grant of a faculty. [Link to judgment] [Back] [Top]


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.

[Top]

Cite this article as: David Pocklington, "Ecclesiastical court judgments – December and January" in Law & Religion UK, 31 January 2018, http://www.lawandreligionuk.com/2018/01/31/ecclesiastical-court-judgments-december-and-january/

2 thoughts on “Ecclesiastical court judgments – December and January

  1. Pingback: Ecclesiastical court judgments – 2017 | Law & Religion UK

  2. Pingback: Recent queries and comments, mid-February | Law & Religion UK

Leave a Reply