Demolition of “Victorian jewel in the Fens” church refused

An earlier post Demolition of landmark spire in Leicester described the urgent, emergency work that will be necessary to render safe the spire of St Mary de Castro, an acclaimed Grade I listed building in the conservation area in the centre of Leicester, close to the Cathedral.  The relevant consistory court proceedings are yet to become available, but the recent case of Re St. Paul Eastville [2013] Lincoln Const Ct Mark Bishop Ch. provides an example of how such matters are dealt with under the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 and the considerations of the court in balancing the safety of anyone potentially affected by serious structural damage, including those employed to undertake remedial action, and an unwillingness to engage in precipitate action.

The chancellor described St Paul’s Church as “a small early Victorian Gothic church built in flat fenland … the last of 6 churches built under the Fen Churches Act 1816 [1] and was completed in 1840,” adding “[I]t would be a tragedy if it was necessary to demolish this Victorian jewel in the Fens”. St Paul’s is Grade II listed but not in a conservation area, and ceased to be used for worship in around 2007 because there were signs of movement in the structure and the congregation could no longer support the financial burden of maintaining the building. Although no longer in use, the church has not been made subject to a formal closure process due to delays caused by pastoral reorganisation, and it was anticipated that this would take at least 18 months to be completed.

As the result of a complaint to the local authority on 18 October 2012 to the effect that it was now in a dangerous condition, an application for its demolition was made under s 18 of the 1991 Measure “in the interests of safety or health and, having regard to the urgency of the matter, there is insufficient time to obtain a faculty”.

The court’s decisions to date have consisted of: a provisional judgement, (13 April 2013); further directions of the court, (15 July 2013); and the judgement, (1 October 2013).

Provisional Judgement

An initial engineering assessment suggested that the church could collapse ‘in the very near future’, the majority of the damage occurring in the last 8 years due to the presence of fast growing trees at the south-east section of the building which are drawing moisture from below the foundations and causing very serious ground shrinkage.  The damage was identified as category 5 taken from the BRE Digest 25, i.e. damage which raises concern of severe instability.

The Principal Consultant Surveyor of the Lincolnshire Building Consultancy indicated that the danger must be removed and would seek an order under a s77 Notice [Building Act 1984] before the Magistrates Court, if the church dis not act to remove the danger.

The chancellor’s main concern in his provisional view the threat to members of the public particularly those that live close by. However he noted that English Heritage (EH) and the Church Buildings Council had not given a view, and directed that the provisional judgement should be sent to them for comment within 28 days.

Further Directions of the Court

These were based upon a letter from EH, its engineer’s report, a letter from the chair of ChurchCare, and a visit to the church by the Chancellor.  The Chancellor noted [at 7 and 8 of the Further Directions]

“7. … However, my assessment under s 18 of the Measure is a practical assessment of the following: emergency demolition of the whole church can only be authorised if it is necessary in the interests of safety or health and there is insufficient time to obtain a faculty in respect of it, and in respected of a listed building (which this is) it is not practicable to secure safety or health by works of repair (or works for affording temporary support or shelter), and the works to be carried out are limited to the ‘minimum measures immediately necessary’, [emphasis in original].

8. I am not satisfied on the material placed before me at present that it is not practicable to secure safety or health by works of repair …”.

Further information was sought within 28 days from the consulting structural engineer (for the DAC) and the senior engineer (for EH, who had indicated that there was then no understanding of the cause of the damage). The removal of the sycamore trees was directed, subject to a risk assessment, and the Local Authority was to be informed.

Judgement

Having received the requested information, the Chancellor concluded [at para.9]:

“9. In the light of the professional opinions of [the EH- and DAC-appointed engineers], I am not satisfied that I can exercise the power under s 18 to order the demolition of the church. This is because given the engineering opinions … I am not satisfied that it has been established that a demolition is necessary in the interests of safety or health. Nor am I satisfied that that it is not practicable to secure safety or health by works of repair. Nor am I satisfied that demolition is the ‘minimum measure immediately necessary’. The provisions of s 18 are not met”.

Comment

This case highlighted short-, medium- and long-term issues that are important in cases such as this:

– decisions taken as soon as a problem has been identified tend to be driven by the immediacy of the situation, and considered advice is necessary before action is taken;

– where immediate demolition is not justified, a plan of necessary remedial measures must be drawn up with specialist advice, and if no practicable solution is forthcoming, demolition must be reconsidered. This will require a further faculty, and unless an emergency situation arises, this must be brought under the provisions of s17 of the Measure;

– if not regularly maintained, buildings such as churches can deteriorate in the medium- to long-term  The last Quinquennial architect’s inspection of St Paul’s was in June 2005 ( i.e. 8 years ago), and this stated that the church was in generally a good condition with some minor repointing and

There is a great reluctance within the Church of England and the heritage bodies to authorize demolition, an ongoing example of which is that of Birch Church which has been closed for 23 years.  Followers of Fr Z’s blog will be aware that this is not just a domestic problem.


[1] Pevsner notes that the church was “by C J Carter, the last of the six chapels sanctioned in 1812 by the Fen Churches Act … and the only one not by Jeptha Pacey”.

Religion and law round up – 13th October

A busy week: assisted suicide at Strasbourg, the CPS and gender-specific abortion, the Council of Europe on circumcision, misleading adverts, a non-religious Promise for the Scouts – and the Irish Senate survives by a whisker 

Abortion law

We reported both the DPP’s statement on the decision not to prosecute the two doctors identified as a result of the Daily Telegraph “sting” (which David discussed in Gender-specific abortion: statistics) and the Attorney-General’s subsequent remarks in the Westminster Hall debate on the issue.

Much of the resulting furore, it seems to us, is based on what people think the law ought to be, rather than an understanding of what the Abortion Act 1967 actually says. Neil Addison – who is certainly no supporter of the 1967 Act or, indeed, of abortion in any circumstances – is firmly of the opinion that gender-specific abortion is not illegal and, as a former Crown Prosecutor himself, reckons that the CPS knew that if it brought a prosecution in the cases under discussion it would probably lose. His post on the matter merits careful reading.

Coincidentally, in Northern Ireland (where the 1967 Act does not apply) Justice Minister David Ford, of the Alliance Party, has come out in favour of a joint consultation with the Department of Health over whether or not foetal abnormality should be made a ground for abortion under Northern Ireland law. The issue surfaced after Sarah Ewart went public about having had to go to England for an abortion because her foetus was anencephalic, while another woman, known only as Laura, pregnant with anencephalic twins, appealed to Health Minister Edwin Poots to let her to have an abortion in Northern Ireland.

Assisted suicide

On 7 October 2013 the ECtHR appeals panel of five judges decided to refer to the Grand Chamber the case of Gross v Switzerland [2013] ECHR 429 at the request of the Swiss Government. The case, about which we have previously posted, concerns a woman in her eighties who wishes to end her life but who does not suffer from any clinical illness. She complains that the Swiss authorities will not give her permission to be provided with a lethal dose of a drug in order to commit suicide, in breach of Article 8 ECHR (respect for private and family life).

Switzerland is appealing the Second Section’s majority decision that there had indeed been a violation of Article 8 and, in particular, that though Swiss law provides the possibility of obtaining a lethal dose of a drug on prescription it does not provide adequate guidelines to ensure clarity about the extent of that right – and that its uncertainty is likely to have caused Ms Gross a considerable degree of anguish. At the same time, it did not rule on whether or not she should in fact have been allowed to acquire the necessary lethal dose of medication to end her life.

Circumcision and the Council of Europe

We reported the non-binding resolution of the Parliamentary Assembly of the Council of Europe on ‘protecting the physical integrity of children’ which called for an end to non-therapeutic circumcision of minors, anticipating that it would cause a shocked reaction by the Jewish and Muslim communities. Shimon Peres, the President of Israel, subsequently wrote to the Secretary General of the Council of Europe, Thorbjørn Jagland, to complain about the resolution which, he said, threatened “a fundamental element of our tradition and obligation as Jews”. Jagland responded with a tweet (!) from his press spokesman Daniel Holtgen (@Daniel_Holtgen) which declared “Female genital mutilation violates human rights. Male circumcision does not”.

ASA rules against Home Office

David has long advocated the use of the Advertising Standards Authority (ASA) as a relatively quick and costs-free means of obtaining the removal of misleading advertisements, and this week it was the turn of the UK Border Agency whose vans were appearing in certain boroughs of east and north London in July carrying the message “go home or face arrest”.  Now as a result of 224 complaints, the ASA has published its adjudication which upheld two of the five complaints and concluded:

“The ad must not appear again in its current form. We told the Home Office to ensure that in future they held adequate substantiation for their advertising claims and that qualifications were presented clearly.”

The poster’s claim “106 ARRESTS LAST WEEK IN YOUR AREA” was deemed to have breached: CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation) regarding complaint #3; and rules 3.1 (Misleading advertising) and 3.10 (Qualification), regarding complaint #4.  However, it was concluded that

“the poster was unlikely to incite or exacerbate racial hatred and tensions in multicultural communities, and that it was not irresponsible and did not contain anything which was likely to condone or encourage violence or anti-social behaviour”, CAP Code (Edition 12) rules 1.3 (Social responsibility) and 4.4 (Harm and Offence).”

Whilst the ASA has few sanctioning powers, the publicity surrounding issues such high-profile adjudications makes pursuing action worthwhile.  The case is also interesting in that it is an example of quasi-legislation directed against a government department/ executive agency.

Postscript 1: The organization Liberty countered the UKBA campaign with one of its own, in which similar billboard-type vans toured London carrying the message

“Stirring up tension and division in the UK illegally? Home Office, think again.”

Given the above ASA ruling, for consistency perhaps it would deem this advertisement misleading as well, should  a “meddlesome busybody” lodge a complaint?

Postscript 2: There may be further problems ahead for the Home Office. Design Week reports “Designer Fabien Delage claims the Home Office has used his Plane Crash typeface for the campaign, without paying him or requesting a licence”.  Delage says “[m]y partners and customers now suspect I might have been involved in this campaign which, let me tell you, has been quite unpopular abroad”.

Postscript 3: The whole affair is ever so slightly reminiscent of the ‘Ex-gay’ London bus advert ban about which we posted at the time. The ban was upheld by the Administrative Court even though it was procedurally flawed.

The Scout Promise

Readers will be aware of the (mild) controversy surrounding the Promises made by members of the Scout and Guide movements. In June, GirlGuiding UK adopted a new Promise from which the phrase “To love my God” has been omitted. The Scouts announced a review of their own Promise on 4 December 2012 and on 8 October issued a press release outlining the review’s conclusions. In short, the Scout Association has introduced an additional alternative version of the Scout Promise for non-believers, alongside the current alternative versions for Muslims, Hindus, Buddhists and residents in the UK who are not UK citizens – which have been available for nearly 50 years.

Not, you might think, a whole lot to do with “law & religion” – except that the reach of the Equality Act 2010 is tending to extend beyond the confines of bodies that are purely public authorities in the strict sense. And respect for equality and diversity is now a core part of the legal culture.

Demolition and listed churches

We commented on the precautionary emergency demolition of part of the spire of the Grade I listed St Mary de Castro in Castle Gardens, Leicester, and the powers of the diocesan chancellor to take immediate action in the interests of safety or health or for the preservation of the church building when there is insufficient time to obtain a faculty in the normal way. The law on the matter is quite complex: for further particulars see David’s analysis.

Oaths in court proceedings

We noted the debate at the forthcoming AGM of the Magistrates’ Association on a proposal to remove the possibility for witnesses and defendants to swear a religious oath in court. The Manchester Evening News subsequently reported that “lawyer to the stars” Nick Freeman, who has acted for Sir Alex Ferguson and David Beckham, has launched an e-petition on the 10 Downing Street website to save the oath, arguing that “The values and traditions of our country appear to be under constant attack and removing the Bible from the courtroom is the latest attempt to undermine our heritage”.

Whether the opportunity to lie under oath rather than to perjure oneself after making a mere affirmation is part of our “values and traditions” is arguable – but it leads us neatly to…

e-petition update

The e-petition with the semi-literate title Keep Richard III remains in Leicester closed at 12.54 on 12 October having attracted 34,351 signatures, overtaking the 31,340 signatures of Richard III to be re-interred at York Minster which closed at 12.03 on 24 September. Other than indicating a certain degree of local support and organizational ability associated with each possible location, these figures prove very little. However, when compared with the figures presented to the court in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin) – Leicester at 8,115 and York at 26,553 – they do indicate that it is a mistake to read too much into figures such as these.

Nevertheless, on the basis that “[a] judicial review could decide whether the bones of Richard III are laid to rest in Leicester or York”,  the Leicester Mercury sent reporter Peter Warzynski and photographer Mike Sewell to York to sample opinion.” Friday’s article concluded:

“There is just one more day to go to sign the e-petition. This morning the total had reached just over 35,500. To show your support for Leicester, log onto the Government’s e-petition website”.

Apart from a discrepancy between the numbers of the government web page and those quoted by the Leicester Mercury (which include those who have signed paper petitions and its own coupons), and a misunderstanding over the purpose of judicial review, not a bad story.  But then, our readers will be aware of that.

Party conference season

Over at God and Politics there have been a couple of guest posts reporting on the 2013 party conference season:  The Conservative Christian Fellowship: Bridging the gap at the Conservative Party Conference written by Colin Bloom, Executive Director of the Conservative Christian Fellowship (CCF) and The C of E goes looking for ‘God-doing’ at the party conferences – and comes away impressed by Richard Chapman, the Church of England’s Head of Parliamentary Affairs.

The gushing style of the former was a little hard to take – “The Conservative Party conference in Manchester was a great place to be. There was a sense that not only does the party know where it is going but it is also confident and proud of its achievements thus far” – but useful in providing an insider’s opinion of the mood of the conferences, a good indicator of a party’s confidence in itself, remembering the contrast between the two Labour conferences immediately after Blair came to power in contrast to that at the end of the Brown era.

Richard Chapman’s piece was significant primarily in the fact that the CofE had attended the “three main party conferences” and that this was his fourth year of attendance. Conference attendance is a costly activity; and it is generally difficult to  justify the balance the obvious costs, (fringe pass, travelling, accommodation) with less definable potential benefits, (access to ministers in the absence of their civil servants, promises of future PQs from opposition MPs, and networking with other “self-confessed political geeks”).

Richard’s piece was also a reminder of the very strange lifestyle these few days impose on participants: early breakfast meetings, little on the fringe until lunch, and then another quiet period before a heavy evening session, when there are often too many possibilities to choose from. It is also important to turn up at the right place – during the 2009 season, a large group assembled outside The Old Ship hotel to lobby David Miliband on foreign policy only to find that the speaker at the fringe event was younger brother, Ed, speaking on climate change.

And finally…

The proposed abolition of Seanad Éireann was narrowly defeated in the recent referendum with 48.3% voting in favour of abolition and 51.7% against: a margin of 42,500 votes. The result merits a mention here because one of the traditional arguments for Ireland having a second chamber at all has been that it has provided a voice for religious minorities in an overwhelmingly Roman Catholic country. That was probably more marked in the days when the seats reserved for representatives of Trinity College were invariably held by Protestants (because until 1970 the Roman Catholic Church forbade adherents from attending without permission from their bishop, which was only rarely given); but Conor Mulvagh, editorial assistant on the Royal Irish Academy’s Documents on Irish Foreign Policy, suggests that:

“[o]ne of the obvious benefits of the Senate of the Irish Free State was that it gave representation to geographically scattered religious and class minorities, namely Protestants and the Anglo-Irish landed gentry. Neither of these minorities were sufficiently clustered in any part of the twenty-six counties to make their vote decisive in any one constituency, even under the PR-STV system”.

Perhaps it still does: though whether the religious argument still has any traction in an increasingly secular society, who knows?

Richard III reburial: MoJ to challenge decision for judicial review?

Since we posted Richard III reburial: the decision for judicial review, (22 August), a number of commentators have reviewed different aspects of the judgment of Haddon-Cave J which granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester on all grounds raised in its petition: see Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin).

Their observations have become more pertinent following the reported announcement that the Ministry of Justice is working with lawyers to mount a challenge with a view to overturning the High Court’s decision to grant permission for a judicial review [1]. Below we summarise some of the issues that have been raised in respect of the judgement, and the additional analysis of some of the cases cited. In terms of “show stoppers”, the standing of the Plantagenet Alliance and the interpretation of CPR 54.5 are critical, but if these criteria are satisfied, the argument turns to the need for the MoJ to consult, and the manner in which it did so.

MoJ and Judicial Review

In our earlier post, we noted that the planned changes to judicial review and standing are unlikely to have an impact on the current action by the Plantagenet Alliance, for which section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question.  However, whilst changes to the legislation, if any, will not be incorporated in time to influence the on-going proceedings, the Justice Secretary, Chris Grayling, is reported to be of the opinion that “… it is ludicrous that judicial reviews are used for cases such as this. This is not what judicial reviews were intended for and is a complete waste of taxpayers’ money.” More importantly, he is said to be supportive of his Department’s actions, apparently despite the additional court time involved, and will also  “vigorously defend” the decision to bury the remains of Richard III in Leicester.

Gordons, which is acting for the Plantagenet Alliance, is of the view

“[t]he ability to hold the executive to account is essential and is a corrective to the potential abuse of administrative powers and failure to implement decisions in a lawful manner. We should be careful that this important message is not lost in the noise of battle of the Wars of the Roses. Judicial review is very important. It matters.”

However, neither the Cathedral nor the Alliance will welcome the additional delay before the JR proceedings in view of its impact on the planned programme for re-interment, and the additional costs [2], respectively. It is understood that the Ministry of Justice has already sought to overturn the Protective Costs Order, (PCO).

Locus standi

Haddon-Cave J cited R (Residents Against Waste Site Ltd) v. Lancashire County Council [2007] EWHC 2558 (Admin) as one of the authorities supporting the standing of the Plantagenet Alliance.  The case concerned a company formed by residents who objected to the grant of planning permission for a waste facility, for which it is well-established that such groups have standing to challenge permissions of this type, [para.16].  The company Residents Against Waste Site Ltd, (RAWS Ltd), was formed after the planning decision had been announced, and is therefore a useful comparator with the Plantagenet Alliance, with particular reference to: the status of the individuals involved in the group, before and after the formation of RAWS Ltd; the reason for forming the group; and the timing of the petition for judicial review.

The group RAWS existed before the announcement of the planning permission, during which it had “engaged in various awareness and fundraising activities” including a formal presentation to the County Council.  The object of forming the company RAWS Ltd was primarily financial, in order to limited the liability of its individual members, [para 15].  Mr Justice Irwin observed, [para.14], that RAWS Ltd comprised local residents and borough councillors who, as individuals, would have sufficient standing and that although they formed an incorporated association, these individuals and any unincorporated association formed of them, could properly bring this claim.

Whilst RAWS comprised a single specific group with interests in the waste site, the category of appropriate consultees with a potential interest in the reburial of Richard III is “potentially very wide” and includes, [para. 22(2)]

“(i) the citizens of this country who have an interest in the place of reburial of the remains of a King of England; (ii) the living collateral descendants of Richard III; (iii) the wishes of Richard III himself, in so far as they can be ascertained or inferred; together with (iv) ecclesiastical bodies with an interest in the resting place of the remains of Richard III; (v) civic bodies with an interest in the remains of Richard III; and (vi) HM The Queen.”

A Press Release from Leicester Cathedral  on 12 September 2012, entitled “Leicester Cathedral delighted by news of human remains found”, indicated that it would “continue to work with the Royal Household, and with the Richard III Society”, suggesting that from an early date, these two group were “in the loop” of consultations, in addition to the MoJ.  Further information will no doubt be made available following Haddon-Cave’s direction:

“[t]he First and Second Defendant [i.e. Ministry of Justice and the University of Leicester], shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment.

However, given that the Church of England, through its ecclesiastical law and courts, is the only body that can give permission for Richard III to be buried in one of its cathedrals or churches,  it could be argued that consultation need not have gone beyond those initially involved.

Timing of application by Plantagenet Alliance

In his post “Judicial Review: Richard III and the relativity of time”, Brian Wong, a litigator specialising in Judicial Review at Burges Salmon, has analyzed the timing of the application by the Plantagenet Alliance with reference to the Ministry of Justice Procedure Rules relating to Judicial Review, CPR 54.5, which state that a Judicial Review claim form must be filed promptly and, in any event not later than three months after the grounds to make the claim first arose.

Whilst some may query his interpretation, there is little dispute regarding the dates on which the relevant events occurred. There are also pertinent points in the RAWS Ltd judgement [paras. 25 and 26 [3] ] concerning the aspects of the situation which should have been apparent to each side.

Wong contends that:

“ever since the University of Leicester’s own press release and media event of 24 August 2012, the world at large will have known that the exhumation related to the very high profile hunt for Richard III.

Since 3 September 2012, it should have been clear that the Justice Secretary had required the re-interment of the remains (even if they did belong to Richard III) without consultation.

Since 12 September 2012, it will have been known that, should they be the remains of Richard III, Leicester Cathedral would be making arrangements for re-interment.”

He suggests that in these circumstances, it seems to be “stretching the boundaries of CPR 54.5 for The Plantagenet Alliance to have waited 8 months to, in effect, challenge the conditions of re-interment recorded in an exhumation licence on 3 September 2012 and a public expression of intention from 12 September 2012 to comply with those conditions through re-interment at Leicester Cathedral.”

A comparison is made between the “extraordinary leeway” given to The Plantagenet Alliance and “the significantly stricter treatment” in R(o.a.o. Nash) v Barnet London Borough Council & ors, in which the Court of Appeal upheld the analysis that the key requirement for CPR 54.5 is when the claim first arose [4].

“Unfettered discretion of the Secretary of State”

In his post Richard III, “unfettered discretion” and the foundations of judicial review, Mark Elliott discusses Haddon-Cave J’s observations [paras. 20 and 21] concerning the discretion afforded to the Secretary of State by s25 Burial Act 1857[5], , which

“confers an unfettered discretion on the Secretary of State to decide to decide whether to grant a licence on what terms; and, in the absence of special circumstances, it is inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered”, [emphasis added].

[…]

“The Secretary of State, however, has a duty when granting such licences to act rationally and in accordance with the general law. A duty arises at common law to consult before making decision law where there is a promise to do so, or a legitimate expectation that there will be consultation.”

Elliott notes that whilst the “unfettered” nature of the discretion is tempered by the duty ro act rationally, he raises the question: “if Parliament has conferred upon the Secretary of State a truly unfettered discretion, can the courts legitimately impose obligations to act rationally and to consult?”, ”If the power conferred by Parliament is truly unfettered, then the executive is authorised by Parliament to do with that power whatever it wishes, and it would be unconstitutional for the courts – whether by invoking a common law duty to consult or otherwise – to interfere. “

Tom Hickman’s post The High Court Rides to the Aid of Richard III is supportive of the decision reached by Haddon-Cave J, and cites In Re Westminster City Council [1986] AC 668 as supportive of the view that “a duty to consult requires a statutory or legitimate expectation hook”, subject to the two overriding duties of fairness and the duty to take into account all relevant considerations. He notes the judge’s comments [at para.34] that it is “obvious” there is a duty to “consult widely” arising “from this singular fact alone, [i.e. the remarkable, and unprecedented, discovery of a King of England of considerable historical significance]”, a discovery which “touches upon our history, heritage and dignity.”

With regard to the “legitimate expectation hook” on which to hang a duty to consult, we have noted that Human Remains Excavated from Christian Burial Grounds in England although described [at para. 24] as

“official guidance on the treatment of excavated human remains … issued under the aegis of the English Heritage … drawn up by a panel of experts including personnel from the Home Office”,

it is: not statutory guidance; it is not one of the principal types of statutory consent listed by English Heritage on which it is required to consult; and was drawn up between the English Heritage and the Church of England, although Home Office officials contributed to its production.  It could therefore be argued that the MoJ was not bound by this Guidance.


[1] It is anticipated that the initial hearing will be at the High Court in October.
[2] In The High Court Rides to the Aid of Richard III , Hickman notes “The Claimant [the Plantagenet Alliance] had barely sufficient resources to pay the costs of issuing the proceedings
[3]  “25  . . . . . . . . ..  LCC knew of the local opposition and it is clear they were watching developments on the RAWS website throughout the period through to the issue of the claim; 26 On the other side of the fence, RAWS took some time to get themselves organised, both in terms of creating the company, but also in facing up to the risks of challenge.” Nevertheless, RAWS Ltd petitioned for judicial review within the required time constraints.
[4] This challenged the decision to outsource key local authority functions of the borough council in Barnet.  Permission for judicial review of the decision was refused by Underhill LJ (as he has since become) in a reserved judgment, R(o.a.o. Nash) v Barnet London Borough Council & ors  [2013] EWHC 1067 (Admin) “essentially on the ground that the challenge had been brought well out of time.” The Court of Appeal upheld the analysis that the key requirement for CPR 54.5 is when the claim first arose, R(o.a.o. Nash) v Barnet London Borough Council [2013] EWCA Civ 1004.
[5] as expounded by Neuberger MR in R (Rudewicz) v. Secretary of State for Justice [2013] QB 410 at para. 30]).

Demolition of landmark spire in Leicester

On 4 September, the Diocese of Leicester reported

“[f]ollowing a structural surveyor’s report the church of St Mary de Castro in Castle Gardens, one of the City of Leicester’s most well-known landmarks, has been forced to close its doors. The spire of the famous church has been found to be in an unsafe and dangerous condition. The diocese and congregation are working with the city council and other professionals to take immediate steps to make the building safe. This will involve removing all or part of the spire, until decisions can be made about its restoration.”

The Archdeacon of Leicester said that the funding for the repairs or restoration would not come from Leicester Cathedral, Leicester City Council or through chancel repair liability, and that a bid to English Heritage had been made.  An initial estimate of the cost of removing the spire was £200,000.

Comment

Urgent action was required after a survey revealed six-metre long cracks in four of the spire’s eight sides and the danger of collapsing became apparent.  Although emergency demolition of the whole or part of a church is a relatively rare event, the eventuality is addressed in section 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which provides a mechanism whereby a diocesan chancellor is empowered to take immediate action where he is satisfied that this is necessary in the interests of safety or health or for the preservation of the church and, there is insufficient time to obtain a faculty.

Where a church is a listed building or is in a conservation area, and “it is not practicable to secure safety or health or the preservation of the building by works of repair or works for affording temporary support or shelter, he may by an instrument under his hand authorise the carrying out of the demolition without a faculty”. However, such works are limited to the minimum measures that are immediately necessary, and a copy of the instrument must be sent to the Council for the Care of Churches and the local planning authority. Although the instrument may specify works to be carried out for the restoration of the church following its demolition or partial demolition, this is dependent upon the granting of an appropriate faculty.

A more detailed analysis of the authorisation of demolition by grant of faculty is available here which considers a legal consideration of the terms: “demolition”; “partial demolition”; “the whole or part of [a church]”, and the associated case law.  The document also notes:

“37.  However, more significantly, it is surprising that a chancellor may authorise the total demolition of a church under this provision, but not the carrying out of more minor works for alteration or repair, which would normally require a faculty.  Thus, for example, in the increasingly common situation where lead is removed from the roof of a church, it may be appropriate for it to be replaced with a different material.

38.  The present arrangement to obtain a confirmatory faculty does not work satisfactorily in practice in such cases, as realistically it is very unlikely that a parish will be forced to remove what has been done in an emergency; and the bureaucracy associated with obtaining such a faculty after the works have been completed is understandably seen as a time-wasting chore.

39.  It would therefore make more sense for the provision to be extended to enable a chancellor to authorise in an emergency any works necessary for health, safety or the preservation of the building.”

However, a different conclusion might be reached from a reading of the judgement in the conjoined cases: Re St. Michael and All Angels Bexhill (and other churches) [2011] Chichester Cons Ct Mark Hill Ch, which gave a detailed consideration of the issues involved in the replacement of traditional materials following the theft of lead roofing.

Provisions for the non-emergency demolition of a church are included in section 17 of the Measure, and a court may grant a faculty for the demolition of the whole or part of a church only if it is satisfied that “another church or part of a church will be erected on the site or curtilage of the church or part of a church in question or part thereof to take the place of that church or part of a church”.

However, when a church is no longer in use for regular public worship, it falls within the parallel controls of the Mission and Pastoral Measure 2011 which requires the diocesan mission and pastoral committee of the diocese to seek an alternative use. If an appropriate use is not identifies and the Churches Conservation Trust is not willing to acquire the building, it may be demolished under the terms of a “pastoral (church buildings disposal) scheme”.  An English Heritage report in 2010 reviewed the closure of CofE churches, the alternative uses that had been identified, and the churches that had been demolished.

Postscript

Richard III’s association with the church of St Mary de Castro is only mentioned peripherally in the accounts of his final journey to Leicester, as reported by the Richard III Society and the University of Leicester,  although the church’s Spire Appeal site suggests “perhaps the  last reigning Monarch to worship in St Mary’s was King Richard III, and here his body may have  rested briefly after the Battle of Bosworth.”  With stronger links to Richard III it perhaps might also have been a stronger contender for the re-interment of his remains than the Grade II* former church down the road, and would then have been in a more favourable position to attract funds for its Spire Appeal.

However, on architectural grounds the church’s claim to fame is on a much stronger basis, the Grade I building being featured in Simon Jenkins’ 1000 Best Churches (Leicester’s Treasure”), and more importantly by Pevsner who describes it as “”a showpiece of late  Norman sumptuousness”, and considers the famous triple sedilia as “the finest piece of Norman  decoration in the county”.  The spire is described briefly in the church’s English Heritage listing – “octagonal stone spire with crockets and alternating lucarnes” – although Betjeman’s Britain’s Best Churches ominously comments “ . . . good perpendicular, much repaired and rebuilt”.

Scrap Metal Dealers Act now in force – modified rapture!

The Scrap Metal Dealers Act 2013, which received Royal Assent on 28 February 2013 and came into force on 1 October 2013, will be welcomed by many including: commuters whose train has been delayed as a result of the theft of copper signalling cable; the numerous PCCs who are struggling to make up the shortfall between the replacement costs and the cap on insurance payments for lead theft. In a Church of England interview, Sir Tony Baldry MP, the Second Church Estate Commissioner welcomed the Bill becoming law, stating

“[t]he scrap metal business becomes the first business in the country that hasn’t been in law allowed to deal in cash”,

and Anne Sloman, Chair of the Church of England’s Church Buildings Council is quoted in a Press Release as saying:

“t]he Council has worked hard with the Home Office to get this legislation on the statute book and we are grateful to Ministers and officials who have approached this problem with such determination.”

For the government, the Home Office has issued an announcement “Scrap metal laws to stop metal theft come into force”, which usefully provides a summary of the new legislation.

Comment

We would not wish to detract from the significance of the achievement or the undoubted hard work necessary for the Bill to become law.  However, it should be noted that:

– There was sustained resistance from some MPs and parts of the industry to amending the Scrap Metal Dealers Act 1964 and associated legislation, and several earlier attempts at amending the law in this area were unsuccessful.  These are reviewed in our post “The Commuters, the Churches, and the Coalition”;

– The Scrap Metal Act 2013 was a result of Richard Ottaway’s Private Member’s Bill, which was given its first reading on 20 June 2012; Although it had government backing, there were serious attempts to derail the Bill, and a government amendment [1] to introduce a “sunset clause” was voted down by the House of Lords;

– Section 18 of the Act requires the Secretary of State to undertake a review of the Act within 5 years of its enactment, which will provide another opportunity for opponents to attempt to attack its provisions;

– Although the banning of direct cash payments for scrap metal was introduced through section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a major scrap metal recycler has used this as a business opportunity and, consistent with the legislation, pays traders for scrap by cheque and subsequently offers an encashment option on its facilities.

The Act alone will not prevent or reduce metal thefts unless supported by enforcement by the regulatory authorities, and prosecution of thefts under legislation that carries the appropriate tariffs.

– Sections 147 to 147 of Sentencing and Punishment of Offenders Act 2012 did not become effective until 3 December 2012 [2], but by mid-October there had been a significant reduction in the incidence of metal thefts from churches and other building [3]  which was attributed to: falling metal prices; increased security measures; and a co-ordinated approach by the police and local authorities in applying existing legislation.

– In 2012, the Crown Prosecution Service launched specific guidance for lawyers on tackling metal theft, which highlights the significant and damaging impact it has on communities and industry.  This guidance also brings together other existing policy, and reminds prosecutors of a number of approaches to encourage robust prosecutions:

– to add firearms or offensive weapons charges where appropriate to indictments for aggravated burglary where weapons are carried;

– any charge or count on an indictment should specifically indicate when the building is a dwelling or residence.  If a building is inhabited this will have an impact on sentencing; ensuring that third burglaries of dwellings are dealt with where appropriate using the “Third Strike” domestic burglary rules so that they attract the mandatory minimum sentence in the Crown Court;

– considering charges of robbery where violence, force or intimidation is used to steal in the course of a burglary.

The churches too have their part to play, through the introduction of preventative measures, such as those suggested by the insurer Ecclesiastical


[1] Lord Faulkner of Worcester notes “At the very last-minute two Conservative MPs appeared ready to talk out the bill by tabling over 70 amendments on a single day – even though tackling metal theft was seen as a huge priority by everyone, the government included.  They were only persuaded to drop their filibuster by a promise that ministers would table an amendment in the House of Lords which would add a so-called “sunset clause” – a measure which would have caused the Act to expire altogether after five years”.

[2] Through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 No. 2770 (C. 110).

[3] G Drake, ‘Tornado sweeps away metal thefts’, Church Times, 12 October 2012

Religion and law round up – 29th September

Women bishops and “taint”, an unfair dismissal case, another case about reinterment and yet more on Richard III

The Church of Ireland’s first woman bishop

Last week came the news that the Revd Pat Storey is to be consecrated by the Church of Ireland as the first female Anglican bishop in the UK and Ireland. In response, Will Adam, editor of the Ecclesiastical Law Journal and Vicar of St Paul’s, Winchmore Hill, contributed a guest post pointing out that deacons, priests and bishops of the Church of Ireland, the Church in Wales and the Scottish Episcopal Church are not considered as “overseas” clergy under the law applying to the Church of England.

That means that the permission of the Archbishops of Canterbury and York is not required for such ministers to be invited to exercise the ministry of their orders in England. – which leads Dr Adam to suggest that, though there may be public policy reasons why the bishops of the Church of England might decide not to delegate any of their episcopal functions to a woman bishop from the Church of Ireland, it is difficult to see how they could prevent deacons and priests ordained by her from ministering in their dioceses and generated discussion on this and a number of other blogs.

So much for “taint“. And all very interesting (if you’re an Anglican) – so much so that Will’s post has had over 500 page-views

More news on bishops

During the past week Thinking Anglicans has provided a number of useful updates concerning the Church of England episcopate:

  • Schedule for the meetings of the Crown Nominations Commission at which appointments to vacant Sees will be discussed, including: Bath and Wells; Leeds; Exeter; Hereford; and Liverpool.

In addition, this week the Church of South India elected its first women to the episcopate.

Yet another persecuted Christian? – perhaps not

We reported the case of Dr David Drew, a paediatric consultant working in a multicultural and multi-faith department, whose habit of using overtly Christian references in e-mails to his colleagues allegedly irritated them so much that it led to his eventual dismissal. In Drew v Walsall Healthcare NHS Trust [2013] UKEAT 0378 12 2009 the EAT dismissed his appeal, concluding that the lower tribunal had used the correct comparator and that its conclusion that he had not been unfairly dismissed was neither perverse nor based on an error of law. Earlier reports suggested that Dr Drew was considering a further appeal but he later told the Wolverhampton Express & Star that he was calling it a day.

Perhaps the most sensible comment on the case was by Chris Hadrill, a member of the employment team at Redmans Solicitors, Richmond, who suggested that the case “shows how grievances at work can escalate and can cause the employment relationship to become fundamentally toxic”.

Richard III – the inside story

The details of Leicester Cathedral’s submission to the Cathedrals Fabric Commission for England concerning the necessary changes to the fabric that will be required for the re-interment of King Richard III, were published this week, here, and here. The technical details of the interment are:

– Richard III’s bones will be placed in a small lead ossuary, minimising the air around them, completely sealed, and if necessary, protected with inert material;

– The ossuary will be securely placed within a normal sized oak or elm coffin, which will sit within a brick vault on spacers to keep it off the floor and allow air movement;

– The vault will be formed within the floor of the chancel, sufficiently big to have some space around the coffin, and covered by a tombstone, which will physically close the vault.

It is anticipated that the thermal inertia of the ground will maintain an environment of relatively constant temperature and humidity, and the ossuary, coffin and vault will further moderate any changes in the environment to maintain a stable and safe environment for the remains.

Religion and the judiciary

Owen Bowcott reports in The Guardian  that ahead of the beginning of the new legal year on 1 October Peter Fisher, until recently a civil servant in the MoJ, and John Butcher, a Conservative member of Elmbridge Borough Council, have written to the Secretary of State for Justice calling for the abolition of the service in Westminster Abbey that traditionally precedes the annual Lord Chancellor’s Breakfast on the grounds that it

“prejudices judicial decisions on religious matters … The judge trying such a case is placed in a difficult position if [he or she] has attended the judges’ service [and] may appear to have prejudged the religious issue by publicly appearing to support particular beliefs.”

They also note the controversy surrounding the Scottish practice of holding two judges’ services at the start of the legal year – the Kirking of the Court at St Giles and the Roman Catholic “red mass” (red for a votive mass of the Holy Spirit) – about which the National Secular Society has complained that judges’ attendance may not be in accordance with the Statement of Principles of Judicial Ethics for the Scottish Judiciary.

Strange how times change: maybe it’s the Zeitgeist. During the events leading up to the Disruption in the Church of Scotland in 1843 one of the leading Evangelicals in the Kirk was Lord Moncreiff, who became a Senator of the College of Justice in 1829 but continued to attend the General Assembly of the Church and was one of the prime movers behind the Assembly’s Veto Act of 1834 against patronage. The Veto Act was duly struck down – by the Court of Session – and at the Disruption Moncreiff joined the Free Kirk. And no-one seemed to think any of this at all odd.

Reinterment for reburial – the presumption of permanence

In Re Ivy Gertrude Brisbane deceased [2013] Lincoln Cons Ct (Mark Bishop Ch.), a faculty was refused for the exhumation of the cremated remains of Mrs Brisbane, where almost 28 years ago she was buried with her parents in a family grave in the churchyard of St Peter’s Foston, Lincolnshire, and their reinterment in All Saints’ Church, Beeston Regis, Norfolk, where her husband was buried in 2012. The initial decision to bury Mrs Brisbane at St Peter’s was made by her sister Eileen since Mr Brisbane, the Petitioners’ father, was in no fit emotional state to make a considered decision about the burial of his wife’s remains. As time went by, Mr Brisbane became distressed with the decision made by Eileen, although she would not agree to the removal of the remains to Norfolk where he lived, about 100 miles away.

The Chancellor considered the facts in the light of the note prepared by the Rt Revd Christopher Hill, then Bishop of Stafford, on the theology of burial [1] and the associated decision of the Court of Arches in relation to Re Blagdon Cemetery. In refusing the application the Chancellor noted that almost 27 years had elapsed since the interment, during which no application was made by Mr Brisbane, notwithstanding requests by his family that he should do so, and that any distress that Mr Brisbane had experienced during his lifetime regarding his late wife’s ashes were no longer relevant following his death.

The opportunity to reunite the ashes of both parents in the Foston family grave was not made in 2012, and consequently, there would be no greater economic use of land by granting the application. Whilst some existing family members were in favour of exhumation, one close member, Mrs Brisbane’s sister, remained opposed to that during her lifetime.

Finally, he noted that an application to exhume based on seeking to achieve what a deceased partner wanted in his life, but yet took no steps himself to achieve, was a significantly weaker than one made by that partner during his lifetime; and the convenience of existing family members in visiting a parental grave was not a reason to displace the presumption of permanence.

And finally…

The BBC News Magazine is running a fascinating piece on Cookisto, an idea which has spread from Greece. Home cooks produce extra helpings of the food they are preparing that day, upload details of the dishes online, then wait for people from their locality to order portions for that evening’s supper. In Athens the price of a portion is usually between three and four euros (£2.50 to £3.40); and the Greek website has attracted 12,000 cooks in the last few months. It presses all the right buttons: sharing, community, frugality, good stewardship, avoiding waste…

What attracted Frank’s interest, as a pretty serious day-to-day cook, was the news that Cookisto is coming to London. Then, as a veteran of the Great Jam-jar Controversy the horrible thought occurred, “Er, but what about the Food Hygiene Regulations? Or liability if someone ends up with food-poisoning?” So we’re sorry to disappoint prospective customers, but L&RUK will not be cooking extra portions of venison casserole with herb dumplings and red cabbage any time soon.


[1]  An extended form of the Note is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc Law Soc (35) 447

Pyres, greenhouses and bicycle stands: What is a building?

Although R(o.a.o Ghai) v Newcastle CC & ors concerned the fulfilment of the wishes of Davender Ghai to be cremated in accordance with Hindu beliefs (i.e. on a traditional open air pyre), the appeal judgement turned upon the meaning of “building”, on which Lord Justice Moore-Bick, MR commented [para.36]

“[t]here have, predictably, been many cases which have required the courts to consider the meaning of the noun “building”, but the outcome has inevitably been governed by the context”.

Unsurprisingly, the same media attention was not given to Re St. Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep. Ch), which concerned the replacement of existing structures in the churchyard of a redundant church appropriated by a pastoral scheme for the use of an Oxford college. Nevertheless, both cases centred around what is meant by “building”, and some useful comparisons may be drawn between them.

R(o.a.o Ghai) v Newcastle CC & ors

The context of the case is summarized in the statement of Moore-Bick LJ who said [para.10]

“The combined effect of the [Cremation Act 1902  [1]] and the [Cremation (England and Wales) Regulations 2008 SI 2841 [2]] is, therefore, that a cremation can only lawfully take place in a structure (i) which is a “building”, reading regulation 13 together with section 2, (ii) which has been constructed in a location which satisfies section 5, (iii) which is “fitted with appliances for the purpose of burning human remains”, pursuant to section 2, and (iv) whose “opening has been notified to the Secretary of State”, under regulation 13.

Counsel for the Treasury Solicitors, named as an Interested Party, contended that a structure could only be a “building” within the Act if it was “an inclosure of brick or stonework, covered in by a roof”, and supported this by three arguments [3].  However, the judge considered [para. 33] that: the proper characterisation of the issue was the more specific question whether a structure acceptable to Mr Ghai would be a “building” within the section, [para.33]; there is no reason not to give the word “building” its natural and relatively wide meaning in section 2 of the Act, [para 32]; since if a restricted meaning were required by the Act, the type of structure in which cremations could occur would have been restricted by Regulations issued under section 7, [para.38]. The judge concluded [at para.39]

“[i]n these circumstances, I have come to the conclusion that Mr Ghai’s wishes as to how, after his death, his remains are to be cremated can be accommodated under the Act and the Regulations. This is because the various structures I have described in paragraphs 14 to 18 above, namely the cremation area in the Ceuta premises and the various structures in India, are “building[s]” within section 2 of the Act”.

In practical terms, however, it is likely that other legislation will govern whether an cremation on an open air pyre is permissible.  Following the judgement, Government (MoJ, Defra, DCLG) and the industry sector issued statements [4]  to the effect that burning bodies anywhere other than in an authorized crematorium remains a criminal offence and that any such building must have planning permission, meet environmental criteria and obtain the relevant licences.

Re St. Peter in the East, Oxford

The petition for a Faculty in Re St Peter in the East, Oxford concerned the replacement of existing structures in the churchyard of a redundant church which had been appropriated by a pastoral scheme for the use of an Oxford college, St Edmund Hall. These included: a new gardener’s office; greenhouse and cold frames; three storerooms; the removal of existing sheds and other structures; new bicycle stands to replace old ones; new fencing; and the relocation of re-location of six monuments within the churchyard (five headstones and one box tomb).  The appropriate planning permission had been applied for and granted by the college, and the Diocesan Advisory Committee had issued a certificate advising that it had no objection to the proposals. Likewise, the Parochial Church Council, with the concurrence of the incumbent, has passed a resolution consenting to the proposals, and no letters of objection were received either as a result of the public notice or otherwise.

Relocation of monuments

This aspect of the petition was relatively uncomplicated, and concerned the removal of some, but not all of the monuments in the churchyard in order to clear space for some of the proposed new structures.  The legal issue here was that the monuments are the property of the person who set them up during that person’s lifetime and thereafter become the property of the heir at law of the person commemorated (Corven’s Case (1612) 12 Co Rep 105, 77 ER 1380) [5]. Whilst their removal or relocation without the owner’s consent would amount to trespass at common law, section 3(2)(i) of the Faculty Jurisdiction Measure 1964 provides for “the moving, demolition, alteration or execution of other work to any monument” inter alia in such  circumstances, but requires that “reasonable efforts” have been made to find the owner.  Although the College Home Bursar had indicated that none of the monuments had been visited in the previous 12 years, the chancellor nevertheless advertised their proposed movement locally, and in the absence of any response or other objections, granted a faculty for their movement.

Building on disused burial grounds

Section 3 of the Disused Burial Grounds Act 1884 provides that “[i]t shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other places of worship”, for which the interpretation of “building” is given in section 2, ““building” includes any temporary or movable building [6]”.

However, the college stated in an email to the registry, [para. 10],

“[i]n order to comply with the requirements of ecclesiastical law [7], we believe we should meet our functional need with temporary structures rather than permanent buildings. We accept that there is a ban on permanent buildings, except for a few exceptions which do not apply to our proposals.

In that spirit, we have instructed our structural engineer to redesign our structures for that they would not be based on foundations but would rather sit upon a rigid base that would allow them to be lifted by a crane and taken away, should that be desirable at some future date. Outwardly they would appear as they do in all materials previously submitted. Internally they would have a steel grid that provides a rigid base. The structures would sit on top of the pavers that have already been proposed and discussed. A greatly magnified view of the detail of the design is attached to this email. All other elements remain the same. …”

Although proposals contained in the petition were ancillary to the use of the churchyard (as a garden and open space within the boundary of the College, and for the storage of bicycles), the deputy chancellor agreed that neither use is inconsistent with the consecrated character of the land, [para.21].

With regard to the meaning of “building” for the purposes of the 1884 Act, the deputy chancellor cited the decision of the House of Lords in Paddington Corporation v Attorney General [1906] AC 1, in which the Earl of Halsbury LC stressed that the principal consideration must be the wording of the statute, i.e. “the meaning of the prohibition contained in either of the Acts referred to” and “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition”. Although referred to an alternative approach [8] adopted by Buckle Ch in Re St Peter the Great, Chichester [1961] 2 All ER 513 at 519I – 522C,  [para. 38] the deputy chancellor did not find this useful, nor did he accept the proposition, following the judgment of Hansell Ch in Bermondsey Borough Council v Mortimer [1926] P 87, that

“even if the structure technically falls within the description of a building or “anything that approaches the character of a building” … it will nonetheless involve no contravention of the Act if it is de minimis and/or is consistent with the overriding purpose of the land as an open space.”

and concluded

“I have to approach the petition on the basis that “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition” (per Lord Halsbury) and that the word “buildings” in the 1884 Act “means erections which would cover some part of the ground, as the enlargement of a church would do” (per Buckley J).

Decision on Petition

Applying the above principles, the elements of the petition were decided as below:

(a) Cycle racks and screens: allowed, as not being buildings, and “a significant improvement on the present scheme”;

(b) Greenhouse and cold frames: the greenhouse does “approach the character of a building”, and permission was refused; the cold frames were allowed but without the greenhouse, it was assumed that there would be no point in constructing them.

(c) Gardener’s office and tool shed: although prefabricated, it was held that these approached the character of a building, were within the prohibition and were not allowed;

(d) Stores: whilst the proposed “store G01” clearly approached to the character of a building and was prohibited by the 1884 Act, the proposed “store G06” was more of a borderline case, being more akin to a large cupboard, and on balance was permitted.

However, the Deputy Chancellor concluded by stating [paras. 64 and 65]

“I consider the outcome of this petition to be unsatisfactory. In my view the entirety of the petitioners’ proposals were not only satisfactory but also desirable  . . . . . . The fact that a number of elements of the proposals (which would represent significant improvements to the churchyard) cannot be authorised is entirely because of the prohibition imposed by section 3 of the 1884 Act. Were it not for that statutory prohibition I would have granted a faculty for the proposals in their entirety.

The petitioners have gone to some trouble in seeking to produce proposals that would not infringe the 1884 Act and [counsel] has argued everything that could properly be argued in favour of the proposals. It is unfortunate that the 1884 Act presents an obstacle to various aspects of them. It is not at all clear that the Act serves a useful purpose. It certainly has not done so in the present case. Its effect has already been modified to a significant extent by the Disused Burial Grounds (Amendment) Act 1981 which permits the erection of buildings on disused burial grounds where certain conditions are met. Unfortunately the 1981 Act does not apply to any consecrated ground so it is of no assistance to the petitioners.”

Comment: Whilst the arguments on Ghai succeeded as a result of the broad interpretation given to the scope of the term “building”, those in Re St Peter in the East, Oxford were unsuccessful on account of the narrow meaning given to the term.  Nevertheless, the approach of the court in each case was shaped by the nature of the underlying legislation which was, respectively: inclusive, allowing any building “fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto” and meeting the criteria established by the Secretary of State under section 7; or exclusive, restricting “[the erection of] any buildings upon any disused burial ground…“

In terms of the continuing usefulness of these restrictions on disused burial grounds, it should be noted that  where major infrastructure works are envisaged, the enabling statutory measures may disapply the ecclesiastical and secular provisions, e.g. in relation to burial grounds, e.g. section 39(1), Channel Tunnel Rail Link Act 1996 which states

“[n]othing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise shall have effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Part of this Act.”


[1] Place where cremation may take place: Regulation 13.  No cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State.

[2] Section 2: The expression “crematorium” shall mean any building fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto.

[3] (i) the view of Lord Esher MR in Moir v Williams [1892] 1 QB 264, 270; (ii) the desirability of having a clear and simple meaning for the word, as breach of the Act would be a criminal offence; and (iii) the need to ensure that cremations could not be seen by the general public.
[4] Joint Statement from the Federation of British Cremation Authorities, the Cremation Society of Great Britain, and the Association of Private Crematoria and Cemeteries following the issue of “final orders” regarding the Court of Appeal ruling on funeral pyres, 26th February 2010; and Ministry of Justice Statement, ‘Funeral Pyres – Court of Appeal Judgement in the Case of Ghai’, 29th March 2011.
[5] In an earlier post we noted the comprehensive guidance on the ownerships of headstones &c that had been given in Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch).
[6] Although section 2 of the 1884 Act as it now stands was only inserted by the Statute Law (Repeals) Act 1993, the same definition of “building” has applied for the purposes of the 1884 Act since 1887 when section 4 of the Open Spaces Act 1887 enacted that the expression “building” in the 1884 Act included any temporary or movable building: see Bermondsey Borough Council v Mortimer [1926] P 87, 91.)
[7] Although disused burial grounds fall within the faculty jurisdiction of the Church of England, the relevant controls are governed by statutory legislation. [8] i.e. (i) Would the ordinary man think it was a building? (ii) Has the relevant structure four walls and a roof? (iii) Can one say that the structure is built?”.