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.


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.


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.


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?”.

Religion and law round up – 22nd September

The Church of Ireland elects its first woman bishop, Strasbourg & a US court rule on names  – and a wedding goes owl-shaped

Women as bishops: a first for the Church of Ireland 

The House of Bishops of the Church of Ireland has appointed the Revd Pat Storey to succeed the Most Revd Dr Richard Clarke, now Archbishop of Armagh, as Bishop of Meath and Kildare. That’s Pat as in Patricia, not as in Patrick. So the Church of Ireland will soon have the first woman Anglican bishop in GB & Ireland. But not the first woman bishop in GB & Ireland: that honour goes to the Lutherans, who consecrated Jana Jeruma-Grinberga in 2009.

First name, First Amendment

In August we reported a slightly bizarre case from Tennessee in which the parents of a seven-month old boy had gone to court because they could not agree on his surname and a child support magistrate, one Lu Ann Ballew, had ordered (evidently to their complete astonishment) that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. We suggested that Ms Ballew’s ruling almost certainly contravened the First Amendment in relation either to the establishment clause or to the provision on freedom of speech.

As it turns out, we were right. Religion Clause reports that the County Chancery Court has reversed the magistrate’s ruling. According to USA Today:

“Chancellor Telford E Forgety Jr overturned Ballew’s decision, ruling that the lower court acted unconstitutionally. He said the lower court violated the establishment clause of the US Constitution, and added that the court’s purpose was to determine the last name of the child, not his first name”.

The boy is now Messiah DeShawn McCollough: McCollough is his father’s surname.

Last name, Articles 8 and 14

In  Tuncer Güneş v. Turkey (no. 26268/08), the European Court of Human Rights found in favour of an Istanbul lawyer who complained that she had not been allowed to keep just her maiden name after her marriage in March 2005. Under Article 187 of the Turkish Civil Code, Turkish law, although men are permitted to use only their own surname after marriage, women  may use their maiden name in front of their married name. In 2007 the Şişli Court of First Instance dismissed her request to use only her maiden name on the ground that, under Article 187 of the Turkish Civil Code, married women had to bear their husband’s name throughout their marriage and were not entitled to use their maiden name alone. The judgement was confirmed upon on appeal to the Court of Cassation.

After the enactment of Article 187, three Family Courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional, but in a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed their objection.

Following the similar case of Ünal Tekeli v. Turkey (no. 29865/96), the ECtHR held that there had been a violation of Article 14 in conjunction with Article 8, although it did not consider necessary to determine whether there had also been a breach of Article 8 taken separately.

Recent consistory court judgments

This week, three judgments became available relating to: the refusal of a faculty for the installation of a pipe organ in the Chancel of a Grade I listed church, Re St Peter Wolverhampton [2013] Lichfield Cons Ct (Stephen Eyre Ch); approval for the sale of an armet (a spiked helmet with visor), Re St Lawrence Wootton [2013] Winchester Cons Ct (Christopher Harvey Clark Ch; and the replacement of existing structures in the churchyard of a redundant church appropriated by a pastoral scheme for the use of an Oxford college, Re St Peter in the East Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep Ch).

We covered Re St Peter Wolverhampton in an earlier post which related to an apparently unusual refusal of a petition for the replacement of a failing electronic organ (which needed to be replaced “sooner rather than later”) with a pipe organ, even though finding the funds for such an electronic organ (~£30,000) would be difficult and the pipe organ was available at no cost. However, the context is important and the case serves to illustrate the balancing exercise that chancellors undertake in coming to their decision.

Whereas St Peter Wolverhampton was “not one of those exceptional cases where it would be appropriate for the Court to take account of the decision as to financial priorities”, in Re St. Lawrence Wootton the chancellor was satisfied that the Petitioners had proved good financial reasons, “probably not far short of a financial emergency in themselves”, for seeking the sale.

However, St Lawrence Wootton is interesting at many levels: its extensive review of the factors to be considered in the disposal of “articles of particular historic, architectural, archaeological or artistic”; the application of Rule 15 of Faculty Jurisdiction Rules 2000, and the involvement of the Church Buildings Council, (“CBC”), who became a formal objector to the petition; the consent of the heirs at law – a baronetcy which it had been assumed had  died out in 1712; the difficulties experienced by the present and a former chancellor and the setting aside of a Faculty order of 2010 to address issues raised by the CBC. In the event, a Faculty was granted under the same conditions as the 2010 order

The petition in Re St Peter in the East Oxford turned on the meaning of “building” as it applied to section 3 of the Disused Burial Grounds Act 1884[1] and the relevant authorities were considered in detail.  The question whether “the ordinary man” would think something was a building was not considered a helpful question to ask, since the ordinary man is unlikely to have read the 1884 Act, [para. 40]. The chancellor concluded

“[t]he fact that a number of elements of the proposals … 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”.

A more detailed account of the case will be posted at a later date.

The sacred and the secular: religion, culture and the family courts

The forthcoming Law Society Family Law Conference  2013 will discuss key questions arising from religious beliefs when parental relationships break down, the response of the civil family courts in recent cases and whether the religious and civil courts can work more closely together to achieve better outcomes for families: the focus of this last will be on the Islamic and Jewish courts. The conference will also include a discussion on the challenge for practitioners in identifying and responding to the cultural practice of forced marriage and the impact of a new criminal offence.

The conference will be held on 29 October at 113 Chancery Lane and registration starts at 9.45. Speakers will include Sir James Munby, President of the Family Division,  David Frei, External and Legal Services Director of the United Synagogue, Hajj Ahmad Thomson, Head of Wynne Chambers, Professor Mark Hill QC, Anne-Marie Hutchinson OBE,  Head of the Children Department at Dawson Cornwell, Jasvinder Sanghera CBE, Founder and CEO of Karma Nirvana, Louis McCallum of Zenith Chambers and Nazir Afzal OBE, Chief Crown Prosecutor for the North West and National Lead on violence against women and girls. [Thanks to Andrew Male for the alert.]

And finally… Darcy misses the wedding

As a consequence of their association with darkness and evil, mobbed owls are often depicted on medieval misericords, and examples are to be found at St Laurence, Ludlow, Norwich Cathedral and elsewhere. However, in these post-Harry Potter times and with their improved image, owls have been incorporated into the marriage service, being used for the delivery of wedding rings for the happy couple. IMG_1898 FluffyThe Common Worship rubric states “[t]he Minister receives the rings”, but in practice the owl is trained to fly to the white glove of its handler. [Wedding guests please note when choosing your accessories]. Unfortunately, Darcy, a one-year-old owl, did not perform as planned at Holy Cross Church, Sherston, Wiltshire, and according to the BBC, “instead … flew into the church roof to roost. It took about an hour to get her down”.

Perhaps future couples intent on a “fairy-tale wedding” should also invest in a White Rabbit (with watch) to shout “Oh my fur and whiskers! I’m late, I’m late I’m late!” to ensure that the owl performs as required to ensure that  the service is concluded within canonical hours. The more astute readers will quickly spot that our photograph is of “Fluffy” of the Screech Owl Sanctuary, Indian Queens, not “Darcy” of Wings over Wiltshire.  They will also be aware that Charles Dodgson is reputed to have got his inspiration for the White Rabbit (and the Gryphon) from one of the misericords in Ripon Cathedral during the time his father, Archdeacon Dodgson was canon-in-residence.

[1] The Chancellor noted [para 30] “[a]lthough section 2 [Interpretation] 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.

Electronic vs pipe organ: Re: St Peter, Wolverhampton

In Re St. Nicholas Warwick [2010] Coventry Cons Ct (Stephen Eyre Ch), the Chancellor reviewed the authorities relating to the replacement of pipe organs, which address a wide range of situations in which such a decision might need to be made, and stated [at para.16]

“[i]t is well-established that the onus is on those seeking to obtain a faculty for removal of a pipe organ. Account is to be taken of the musical qualities and durability of pipe organs. Accordingly, in borderline cases the approach of the consistory court should be to require the retention of such an organ.”

At first sight, therefore, it might seem unusual that in Re St. Peter Wolverhampton [2013] Lichfield Cons Ct (Stephen Eyre Ch), Chancellor Eyre refused a petition for the replacement of a failing electronic organ (which needed to be replaced “sooner rather than later”) with a pipe organ, even though finding the funds for such an electronic organ (~£30,000) would be difficult and the pipe organ was available at no cost [1].  However, this must be viewed in context: although St Peter’s Collegiate Church “has an admirable tradition of fine church music performed to a standard comparable to that of many cathedrals” [2], it is also Grade 1 listed with a large Willis pipe organ which sounds into the nave, for which there is currently a £350,000 appeal.  The present chancel organ (an electronic Makin organ) is used for choral evensong on Wednesdays and Sundays.

The proposal to replace the Makin instrument with a pipe organ (“the Bevington organ”) was supported by the Parochial Church Council of the Central Wolverhampton parish and by the District Church Council of St. Peter’s, but was not recommended by the Diocesan Advisory Committee who said that it “could not be accommodated without destroying the aesthetics of the space and the integrity of the architectural scheme”.  Similar aesthetic reservations were expressed by English Heritage (EH), the Victorian Society, and the Local Planning Authority, the EH stating that the Bevington organ is “a large and bulky piece of furniture which will be out of scale and character both with the space and the other items of furnishing in the chancel” and the necessary removal of the section of pews would “diminish the historic integrity” of the seating in the chancel.

The Church Buildings Council expressed different concerns in its letter to the Registrar focussed which focussed on the contractual and insurance arrangements for the moving of the organ to Wolverhampton and its installation in the chancel. However, the Chancellor stated that these would not have been obstacles to granting a faculty.


Chancellor Eyre noted, [at para. 15] that as a matter of church law, since a pipe organ will normally be a fixture rather than a chattel, in a listed church the relevant criteria must be addressed, [in that case, the Bishopgate questions and now, Re Duffield: St Alkmund [2013] 2 WLR 854]. These are

a) Would the proposals, if implemented, result in harm to the significance of the church as a building of special architectural or historic interest?

b) If not have the Petitioners shown a sufficiently good reason for change to overcome the ordinary presumption that in the absence of a good reason change should not be permitted?

c) If there would be harm to the significance of the church as a building of special architectural or historic interest how serious would that harm be?

d) How clear and convincing is the justification for carrying out the proposals?

e) In the light of the strong presumption against proposals which will adversely affect the special character of a listed building will the benefit outweigh the harm?

With regard to e), he indicated that it was necessary to bear in mind: the more serious the harm the greater the level of benefit needed before proposals can be permitted; and serious harm to a church listed as Grade I or Grade II* should only be permitted in exceptional cases.  In reaching his conclusions, the Chancellor needed to balance a number of considerations, [paras. 20 to 28]: the musical suitability of the Bevington organ; financial consequences; the loss of seating capacity to accommodate the Bevington organ; impact on the mission and outreach of the church; the procedure and transparency adopted in pursuing the proposal; and aesthetic considerations.

A significant part of his conclusions was [para. 29]

“[t]he argument that a particular object is being provided free of charge cannot justify the introduction into any church of an object which is not otherwise suitable let alone the introduction of such an object into a Grade 1 listed church.

Here the impact of introducing the Bevington organ would be grave. The problem lies in its size. There would be unlikely to be any ground for refusing a petition to introduce a small pipe organ occupying the location of the current Makin instrument even if that replacement were to be noticeably larger than Makin organ.”

In refusing the Petition, he continued

“The current proposal goes very much beyond that. It is a proposal to introduce an object which will occupy a substantial space and which will materially detract from the appearance (indeed from the beauty) of the chancel. It will have a significant adverse impact on the chancel’s special character.  . . . . . . the benefits to be achieved, real and important though they are, do not justify that step.”


The Chancellor commented [para. 22] that Re St. Peter Wolverhampton “is not one of those exceptional cases where it would be appropriate for the Court to take account of the decision as to financial priorities”, although he suggested

“given the quality of the music at St. Peter’s and the important part which music plays in the church’s life, worship, and mission  . . . . . .expenditure on the acquisition and maintenance of a suitable instrument for use in the chancel would clearly be an appropriate use of the funds of the church.”

Whilst finding the funds for such an organ will be difficult, he was not convinced that the task would be impossible, [para. 29], presumably taking into consideration the estimated £30,000 required in comparison to the on-going £350,000 appeal for the refurbishment of the Willis organ.

Two aspects not apparent from the judgement are: the number of people in the congregation attending the Evensong services at which the organ would be played; and the need for an organ in the chancel.  The latter is implicit in the statement the “large Willis organ sounds into the nave” suggests that a smaller instrument, pipe or electronic, located in the chancel would provide more practical and appropriate for the music performed there.  There may be other issues of visual contact between the assistant organist, director of music, and the choristers depending upon the location of the organ console, and one is reminded of the “mechanical hand”, operated by the organist and protruding from the organ loft in Ripon Cathedral in an early attempt to solve such problems.

[1] The organ had been offered to St. Peter’s free of charge and the costs of moving and installing it together with any necessary modifications would be met by special donations or by volunteers performing the necessary work. The effect would be that St. Peter’s would have a functioning pipe organ in the chancel without cost.

[2] With seventy-five children within its choirs, nine choral scholars, one organ scholar and a number of organ students

Exhumation of correctly buried body

Despite the apparent uncomplicated nature of recording past and prospective burials, it is not uncommon for errors to occur, particularly in the case of reserved burial plots. This is acknowledged in the Department of Constitutional Affairs’ Guide for Burial Ground Managers (2005) which notes [at para. 3.2]

Double-bookings of the same space, and burial in the wrong grave, are sadly not uncommon. They reflect very badly on the burial ground managers, incur additional trouble and expense to put right . . . . . . and cause unnecessary and avoidable distress to the friends and relatives of the deceased. The orderly burial in the correct grave of the correctly-identified individual is the least the bereaved can expect.”

In Re Blagdon Cemetery [2002] Fam 299; [2002] 3 WLR 603, the Court of Arches addressed the issue when determining the relevant factors to be considered in granting a faculty for exhumation to rectify such errors, and observed [at para.36(iii)]

“[s]ometimes genuine mistakes do occur, for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else in a churchyard.  In such cases it may be those responsible for the cemetery or churchyard who apply for a faculty to exhume the remains from the wrong burial plot or grave.

Faculties can in these circumstances readily be granted, because they amount to correction of an error in administration rather than being an exception to the presumption of permanence [of burial], which is predicated upon disposal of remains in the intended not an unintended plot or grave.

A mistake may also occur due to a lack of knowledge at the time of burial that it was taking place in consecrated ground with its significance as a Christian place of burial.”

Nevertheless, the ecclesiastical courts continue to be faced with requests for exhumation in these circumstances, which are often resolved through the exhumation and reburial of the “wrongly buried” body.  However, a different solution was sought in Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch) where although a burial plot for Mrs P-W had been reserved and authorized by faculty so that on her death she could be buried alongside her husband, a wholly unrelated person had been buried there.

Whilst one option would have been to petition for the mistakenly-interred remains to be exhumed and re-interred elsewhere, this was not sought by the incumbent and the P-W family since the family of the person buried there was unaware of the mistake and they did not wish to cause them distress.

In these unusual circumstances, the Court granted permission for the exhumation of Mr P-W who had been buried in the correct plot, his re-interment elsewhere in the churchyard and the reservation of a “new” adjacent plot for Mrs P-W.


An arrangement such as this is dependent upon: the availability of two adjacent plots within the churchyard that are acceptable to the family concerned; and the exercise of the chancellor’s discretion, which in this case was subject to an assessment of the practicability of conducting a seemly exhumation.  The absence of any involvement of the family of the remains buried in the adjacent grave is a further facilitating factor.

With regard to the second point, the chancellor explained the two-stage process laid down in Re Blagdon Cemetery [para. 33], each stage of which required the Consistory Court to have regard to “the straightforward principle that a faculty for exhumation will only be exceptionally granted”.

In considering whether the matters raised were capable in law of amounting to special circumstances, (the first stage), the chancellor identified this as a “classical” type of mistake as in Re Streatham Park Cemetery) (2013), (Southwark); Re St John Walsall Wood (2010), (Lichfield);  Re Jean Gardiner (2004) (Carlisle); and Re St Luke Holbeach Hurn  (1996), (Lincoln).

Although the chancellor has discretion in the second stage – considering whether exhumation is justified in the light of all the circumstances of the particular case – the starting point in exercising that discretion is the presumption of the permanence of Christian burial. Nonetheless, he concluded that this is a case where exceptional circumstances exist justifying an exhumation, the particular factors leading to that conclusion being:

  • the legitimate long-standing intention for Mr and Mrs P-W to be buried alongside each other; and
  • the fact that the use of the reserved plot for the interment of a person other than Mrs P-W was a mistake, and although it would be possible for the mistake to be remedied by the exhumation of the remains currently in this plot, this too would operate against the presumption of the permanence of interments.

The chancellor therefore directed:

  • the faculty reserving the original plot for Mrs P-W to be set aside.
  • a faculty issue authorising the exhumation of the remains of Mr P-W and their re-interment in a different plot.
  • a faculty issue reserving a “new” adjacent plot.

Whilst the judgement in Re Jean Gardiner [2003] Carlisle Cons Ct (Tattersall Ch) would not have been binding, it is interesting to note that in this case a faculty was granted to exhume the “wrongly” buried remains of Mrs Jean Gardiner in an adjacent reserved plot, despite the objections of her family.  In particular, the chancellor rejected arguments in relation to Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol on the grounds, inter alia, that there was no property in human remains.

However, this judgement preceded Elli Poluhas Dödsbo v Sweden [2006] ECHR 38 and R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin). A similar situation has arisen at St Andrew, Thringstone, and is due for consideration by the Leicester Consistory Court.  However, the current positions of the parties involved suggests that the case might end up in the Court of Arches on appeal.