Ecclesiastical court judgments – March

Review of the ecclesiastical court judgments during March 2018,

Of the judgments this month, the Arches Court’s refusal of the Victorian Society appeal on the removal of pews in Bath Abbey is notable, not with regard to any points of law raised, but on the visual impact this will have within the church, for which:

“in the hierarchy of the Victorian furnishings, [the consistory court could] see that there is a deliberate ranking of the pews within the interior of the Abbey, that give a significance to the way all the pews act as a single entity, having been designed and fitted as a set piece”.

This has echoes of Re Holy Trinity Hull [2017] ECC Yor 1 in which the Victorian Society also objected unsuccessfully, to the proposed removal from the nave of “one of the most magnificent and extensive suites of Victorian church seating in the country”. The appeal and decision on costs are considered in more detail in a separate posts.

Likewise, the remaining March cases do not raise important aspects of law per se, but are interesting nevertheless. With the dispute over the primacy of Re Blagdon over Re Alsager  now in its death throes, following General Synod’s approval of the Revision Committee’s draft Church of England (Miscellaneous Provisions) Measure, GS 2064A,  the judgment on Re Torrisholme Cemetery provided an approach which satisfied both set of criteria.

Given the “postcode lottery” associated with the Churchyard Regulations, the common sense approach of Charles Mynors, acting as Diocesan Chancellor  in Re St. Bartholomew Areley Kings permitted the retention of a memorial which did not meet the diocesan guidelines. Finally, neither the Victorian Society, nor Historic England objected to the removal of pews in a Grade I church, Re St. Mary and St. Michael Cartmel, giving lie to the perception that the VS always objects in cases such as this.

Chancellor Mark Hill QC prefaced the judgment of Re The Venerable Bede Wyther with “the proceedings have a long and unhappy history. The specific matter which now falls for determination is the subject of a re-re-amended petition”. The case is an example of a relatively straightforward petition which was compromised by the actions of the parties involved, none of which had the necessary appreciation of the faculty process or the role of the court. The “perfect storm of ignorance, …” noted by the Chancellor, infrais at the very least least on a par with the “really, really stupid” actions of the PiC and PCC in Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct.

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


Reordering, extensions & other building works

Substantial reordering

Re Bath Abbey [2018] EACC 1 Following a hearing which attracted considerable news coverage, Re: The Church of Saint Peter and Saint Paul, Bath (Bath Abbey) [2017] ECC B&Wl,  on which we posted here, the chancellor granted a petition for the removal of the nave pews and their replacement by chairs, notwithstanding the objection of the Victorian Society as party opponent. The Victorian Society subsequently  renewed its application for permission to appeal (permission having been refused by the chancellor).

In refusing permission to appeal, the Dean of Arches said:

“13. In several recent cases the Victorian Society has successfully identified errors of law in first-instance faculty decision-making (Penshurst and Shipton Bellinger…) and Re St Botolph’s, Longthorpe [2017] EACC 4 it was granted permission to appeal, although the proceedings resulted in a consent order.

“But in the present instance, whilst its initial objection was entirely understandable and the issues deserved the close scrutiny which a consistory court hearing involves (and did involve in this case), I am satisfied that its application for permission to appeal does not meet the test of having a real prospect of success. Nor do I consider that the undoubted importance of Bath Abbey (or any other matter) is such as to provide “some other compelling reason why the appeal should be heard”, nor does the Victorian Society so contend”

More detailed summaries are given in separate posts. [Link to judgment] [Link to post, judgment] [Link to post, costs] [Back] [Top]

Removal and replacement of pews &c

Re St. Mary and St. Michael Cartmel [2017] ECC Car 2 A number of reordering proposals included replacing 18 oak nave pews with Howe 40/4 chairs and the re-siting of the Victorian font in this Grade I church. Neither Historic England nor the Victorian Society objected to the proposals; two parishioners submitted letters of objection, but did not wish to be parties to the proceedings. The Chancellor granted a faculty, being “satisfied that the benefits which will flow from the removal of these pews are significant in that the removal of the pews will allow the space of the nave to be better appreciated and will allow the use of such space for a variety of activities. Even bearing in mind that this is a listed building, I am satisfied that there is a clear and convincing justification for the removal of the pews which outweighs such small degree of harm.” [Link to judgment] [Back] [Top]


Audio Visual Equipment

Re St. Mary Chartham [2017] ECC Can 1. Commissary General granted a faculty,subject to conditions, and set out principles and guidelines to be followed in respect of future applications for the installation of CCTV equipment. The contentious aspect of the judgment, to some, was the condition that:

“the installation should ensure that any parts of the church set aside for private
prayer and so forth are avoided from the scope of the lens and that the cameras should be switched off during services”.

[Link to judgment] [Link to post] [Back] [Top]


Telecommunications

Re The Venerable Bede Wyther [2018] ECC Lee 3 In 2002 a faculty was granted for the installation of telecoms equipment in the church tower. A document entitled “Lease of Rights” was entered into by the then incumbent and the PCC and O2 (UK) Limited, but not authorised by the faculty. In 2013 the telecoms company wished to make changes to the equipment. Some work was done without faculty, but then an application was made in 2016 for a confirmatory faculty to approve the additional works. It was not clear to the Chancellor until much later that some of the work had not yet been done. The Chancellor was concerned about the lack of proper representation, the proposed draft lease/licence, and that before the proceedings were concluded the telecoms company decided to withdraw from the site, so that the re-re-amended petition sought to approve terms for the decommissioning of the equipment. A faculty was granted, but the Chancellor commented:

“[40]. This case is nothing short of a tragedy from which few emerge with any credit. Due to the inertia of the first and second petitioners, this impoverished inner city parish has lost out on a five-figure annual income.

The conduct of the third and fourth petitioners in resiling from their agreement will make it hard for any parish or secular building owner to trust them in the future.

[42]. …This case represents a perfect storm of ignorance, misinformation, inertia, non-engagement, and stubborn refusal to follow directions. I hope and pray that it is never again repeated in this or any diocese”.

[Re The Venerable Bede Wyther [2018] ECC Lee 3] [Back] [Top]


Exhumation

Problems of access

Re Torrisholme Cemetery [2018] Ecc Bla 1* The petitioner applied for permission to exhume the remains of her baby, who had died fifteen years previously aged 12 weeks, following an operation to repair a heart defect. At the time of the baby’s death, the petitioner and her former partner had lived in Lancashire, where the baby had been buried, but the petitioner (and her former partner) now lived in Yorkshire. The petitioner claimed that owing to her state of health it was difficult to visit the grave in Lancashire. Her former partner objected to the proposed exhumation and became a party opponent.

The Deputy Chancellor commented [emphasis added]:

“[15]. …In agreement with Chancellor Bursell QC, I agree that, as a matter of precedent, it is the Alsager, rather than the Blagden, test that I should apply to the present petition, but subject to this qualification: that I consider that the right-thinking member of the Anglican Church would regard it as unacceptable that there should be any significant difference in approach to exhumation petitions depending upon whether the body or remains lie in consecrated ground within the two different Provinces of the Church of England, at least in the absence of evidence of some good local reason for such a difference, and that I should seek, insofar as I can do so, to reach the same result as I would if I were to apply the Blagden test.

Having applied the Alsager test, I therefore propose to apply the Blagden test by way of cross-check and, if appropriate, to revisit, and, if appropriate, confirm my original conclusion if I should find that the application of the two tests would produce any difference in the result”.

The Deputy Chancellor, after considering the decisions in Re Christ Church, Alsager [1999] Fam 142, Re Blagdon Cemetery [2002] Fam 299, and other exhumation cases, In re St Chad’s Churchyard, Bensham [2016] ECC Dur 2, [2017] Fam 68 and Re David Ernest Newton [2018] Ecc She 1, determined that moving the remains of the baby simply so that they were nearer to where the petitioner now lived was not an exceptional reason for authorising an exhumation and he accordingly refused to grant a faculty. [Link to judgment] [Back] [Top]

In the Matter of Howard Charles Griffiths [2018] ECC Bir 1* The petitioner applied for the exhumation of his father’s remains, in order that they might be buried in another burial ground with the remains of his mother, who died in 2017. The petitioner’s father had died 27 years previously. His widow, until her death, had frequently complained about the churchyard where her husband was buried as being overgrown. The situation was made worse by the installation 22 years previously of a gas governor site next to the grave, which became noisy and at times gave off fumes, which distressed the petitioner’s mother. Before she died, she expressed a wish that on her death her late husband’s remains should be exhumed and interred with her remains elsewhere.

The Chancellor concluded, reluctantly, that he could find no exceptional circumstances to justify an exhumation. There had been no mistake in the place of interment of the petitioner’s father; 22 years had elapsed since the installation of the gas governor site; and a mistake of law on the part of the petitioner, that he did not realise until recently that it was possible to exhume remains, would not entitle the petition to succeed. [Link to judgment] [Back] [Top]

[Back] [Top]

Family graves

Re Bingham Cemetery [2018] ECC S&N 1 The petitioner wished to exhume the remains of her baby daughter (who died in 1948) and of her husband (who died in 1989) from Bingham Cemetery, a few miles from her home in the nearby village of Gamston. At the time of the interments, Bingham was the place where people from Gamston were normally interred. The petitioner and her daughter and son-in-law had purchased two plots in Wilford Hill Cemetery, about one mile away from Gamston.  The intention was that the petitioner’s daughter and son-in-law should in due course be buried in one of the plots at Wilford Hill and that the petitioner’s husband’s and infant daughter’s remains should be transferred to the other grave, in which the petitioner would eventually be buried. The Chancellor considered that there were no exceptional circumstances to justify the exhumations, and he accordingly refused to grant a faculty. This was not a case of a desire for remains to be moved to a family grave, but to exhume from a family grave, in which it was possible for the petitioner’s remains to be interred in due course. [Link to judgment] [Back] [Top]


Churchyards and burials

Churchyard Regulations

Re St. Bartholomew Areley Kings [2018] ECC Wor 1 A stonemason had placed a memorial in the churchyard without the authority of the incumbent or a faculty. The Rector and PCC objected to the memorial, and the stonemason applied for a faculty for its retention. The memorial was outside the regulations in that the memorial was not flush with the level of the ground and at a slight sloping angle (the rear edge was higher above the ground than the front edge) and the face of the stone was polished. However, the Chancellor granted a faculty on the basis that, ” … the lack of uniformity in the immediately surrounding area means that the extent of that non-compliance is not sufficient to justify ordering the removal of the memorial.” [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

Audio Visual Equipment

General/Miscellaneous


CDM


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 – March" in Law & Religion UK, 29 March 2018, http://www.lawandreligionuk.com/2018/03/29/ecclesiastical-court-judgments-march-2/

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