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.

Judgement

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.”

Comment

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.

Comment

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.

Religion and law round up – 25th August

A relatively uneventful week . . . .

… but not for 19-year-old engineering student Stefano Cabizza, of Padova, who received a “cold-call” from Pope Francis who was following up a personal letter from Cabizza which was handed to a cardinal at a papal Mass to celebrate the Feast of the Assumption. For the benefit of its readers, the National Catholic Reporter has produced advice on telephone etiquette should any of them receive a similar call. Although non-Italian speakers in the UK may not be concerned with the subtleties of the use of tu rather than lei to address the Pontiff, Fr Alexander Lucie-Smith of the Catholic Herald writes “With the use of one word, Pope Francis is signalling to the Vatican insiders that their day is over”.

Conscientious objection to participation in abortion

Readers may recall the case of Mary Doogan and Connie Wood, the labour ward coordinators at the Glasgow Southern General Hospital who sought to assert their conscientious objection to supervising staff involved in abortions: we blogged about it here. They lost in the Outer House but, on reclaimer, won  in the Inner House: Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36

We now learn that the Health Board is in the process of appealing the Inner House’s decision to the Supreme Court. Apparently the Board announced its intention to appeal in June (but we missed it at the time) and on 25 June the BBC posted a report to that effect; however, the case does not yet appear on the Supreme Court’s permission to appeal applications list. Presumably the application for leave will be decided at the beginning of the new legal year: we shall be watching out for it.

Burqas and niqabs in court

A 21-year-old Muslim woman from Hackney charged with intimidating a witness appeared in Blackfriars Crown Court wearing a burqa. When she refused to remove her veil on grounds of her religion, HHJ Peter Murphy told her that she could not stand trial in a veil which only revealed her eyes because her identity could not be confirmed. The Daily Telegraph reported him as saying that it was necessary for the court to be satisfied that it could recognise the defendant:

“While I obviously respect her right to dress in any way she wishes, certainly while outside the court, the interests of justice are paramount. I can’t, as a circuit judge, accept a plea from a person whose identity I am unable to ascertain. It would be easy for someone on a later occasion to appear and claim to be the defendant.The court would have no way to check on that.”

The woman’s counsel, Claire Burtwistle, suggested that she herself and a female police officer could identify the defendant and confirm to the court that she was the same person as in the police arrest photos, while Sarah Counsell, for the Crown, added that the police officer in charge of the case was content that he recognised the defendant even though she was wearing her burqa. Nevertheless, HHJ Murphy rejected counsel’s suggestion, observing that “the principle of open justice” could not be subject to the religion of the defendant. He adjourned the case for argument as to whether or not the defendant should have to remove her veil. The case will be resumed on September 12.

Safeguarding in the Church of England

Our review in March of the Church’s safeguarding provisions in Jersey concluded:

“… the general recommendations within the [Korris] report have wide application throughout the Church of England and beyond. Although there are legal issues arising from the relationship between Jersey and the United Kingdom, the main issue remains the Independent Report and the subsequent investigation.”

With regard to the former, there have been a number of developments in the Church of England which are summarized on its web page Child Protection and Safeguarding, including:  the final report of the Archbishop of Canterbury’s Chichester Visitation, here, here, and here; a Statement on Safeguarding from the House of Bishops; a debate on safeguarding in General Synod and speeches by Bishop Paul Butler and Archbishop Justin, here and here respectively, and the establishment of an Independent Inquiry into the Church’s handling of reports of alleged sexual abuse by the late Robert Waddington, formerly Dean of Manchester.

On Jersey, early action was taken by Tim Dakin, Bishop of Winchester in setting up an independently-led Visitation into safeguarding procedures in the Deanery of Jersey, (26 March) and the appointment of Dame Heather Steel DBE to lead a separate Investigation into church safeguarding complaints from 2008 (15 May).  However, the involvement of the diocese has met with continuing opposition from the Islanders, here, the latest of which is from “a group of concerned [but unnamed] members of the laity of the Anglican Church”, here and here, who appear to have adopted the basic thesis of noli nos tangere. 

Recent consistory court judgment

The facts of Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch) were summarised concisely earlier this year by Catherine Shelley, (2013) 15 Ecc Law Soc, 120. The full judgment runs to ten pages and is now available via the above link. Paragraphs 8 to 21 contain a detailed account of the arcane law concerning churchyards and, in particular, monuments erected in churchyards. Incumbents would do well to read these, for as the chancellor notes

 “[it] is not well understood even by the clergy and the parish officers who have to deal with it. Its actual content some find surprising, and certainly the parties to the present dispute sometimes made assumptions as to the content of the law which were mistaken.”

The case concerned the two headstones which have stood in the churchyard of the parish church of St Thomas, Kilnhurst, over the grave of Frederick Howitt who died on 11 May 1946. The judgment was made against the background of a long-standing family feud, “with allegations and counter-allegations of assault, theft, criminal damage, and the sending of hate-mail”, and a “wholly lamentable record of neglect and inaction by the diocese and some of its office-holders which came close to denying justice to Mr [John] Howitt and which added to the length and cost of [the] proceedings”. (It’s amazing how death and burial seems to bring out all the worst instincts in people.)

A faculty was issued to allow removal of the “second” headstone placed on the grave in 2002 and its replacement with a replica of the original.

Ding, Dong, the King is dead

The timing of Leicester Cathedral’s plans for Richard III may have been set back by the recent decision for a judicial review, but this did not prevent the “Family Fun Fest” on 22nd August to commemorate his death at the Battle of Bosworth, ending with an “Excellent Evensong” sung by the choir of St Barnabas, Nottingham’s Roman Catholic Cathedral. (Would they have advertised a “Totally Crap Evensong”?)

And finally…

BuzzFeed Politics has published a geographical distribution, by religious affiliation, of members of the US House of Representatives. Though the US is normally well outside our sphere of interest, trying to make some sense of the figures helped liven up a wet and uneventful afternoon in mid-August.

The maps themselves only make any sense if you can recognise the unlabelled state outlines (and Frank hasn’t the foggiest idea which state is which except for the ones any fool can recognise, like Alaska, California, Florida and Hawaii); but the basic breakdown in list form is interesting in itself: 136 are Roman Catholics (31% of the House), 66 Baptists (15%), 45 Methodists (10%), 35 Episcopalians (8%), 28 Presbyterians (6%), 22 Jews (5%) and 19 Lutherans (4%). There is a single atheist.

One would expect there to be more Roman Catholics in the House than any other group; but some denominations seem to be over- or under-represented. The widely-respected Pew Research Center’s Religion & Public Life Project estimates that 23.9% of Americans are Roman Catholics, 12% are Baptists of various kinds, 6% Methodists, 4.6% Lutheran, 2.7% Presbyterian, 1.7% Jewish and only 1.4%  Anglican. On that basis (and given that there are bound to be distortions across a group as small as 435) there are rather more Roman Catholics than one would expect, twice as many Presbyterians, about the right proportion of Baptists, rather fewer Methodists and Lutherans – and about five times the expected number of Anglicans.

So why are the Episcopalians so massively over-represented? Social class/personal wealth, given that national politics in the US tends to be a rich person’s sport? Education? Social awareness? And why are 21 of the 35 Piskies Republicans? Given that the views of the majority of the Anglican Communion about the Episcopal Church seem to range from “theological liberals” to “a bunch of heretics”, one would have expected Democrats to predominate. (It should surprise no-one that the single Unitarian Representative and the single Quaker are both Democrats, though it should also be remembered that the last American Quaker politician that anyone has heard of was the appalling Richard Milhous Nixon.)

Rather than answers on a postcard, try leaving a comment.

Religion and law round up – 18th August

What we expected to be a quiet week in August proved not so quiet after all

Abortion law in Ireland

We noted the provisions of the Protection of Life During Pregnancy Act 2013, which was signed into law by the President on 30 July and will be commenced by order. In brief, the Act will allow termination to be carried out where there is a threat to the life of the mother or where there is a medical consensus that the expectant mother will take her own life as a result of her pregnancy. But that is unlikely to be the end of the story, since there appears to be some controversy as to whether or not the terms of the Act are fully in accordance with the Constitution.

Inevitably, opinions as to the wider implications of the Act are bitterly divided. The brief on the original Bill submitted by the Irish Catholic Bishops’  Conference argued that its effect would be fundamentally to alter the culture and practice of medical care in Ireland, to accept the premise that abortion was an appropriate response to a threat of suicide and to create “serious moral, legal and constitutional conflicts in the area of freedom of conscience and religious belief”. Doctors for Choice, the Irish Council for Civil Liberties and the National Women’s Council of Ireland, on the other hand, continue to have concerns about the legislation, not least that abortion remains a criminal offence except in the limited circumstances specified in the Act, with the “chilling effect” that this has on both women and their doctors.

Caste discrimination

In our 14 July round-up, we reported that the Government appeared to pulling back from its agreement to include casts discrimination as a protected characteristic within the Equality Act 2010.  The Times of India puts it like this,

“[d]espite outlawing social evils such as child marriage and Sati, the British balked at taking on untouchability during the Raj. Three months ago, in a quirky turn of events, the David Cameron government was forced by the House of Lords to outlaw caste-based discrimination among Indians settled in the UK. Last fortnight, yielding to counter pressure from Hindu groups, the government deferred the enforcement of the law by announcing a two-year-long public consultation for it”.

Fracking, mineral rights and muddle

The past week saw a certain amount of confusion on the subject of fracking (aka hydraulic fragmentation). The Diocese of Blackburn had published a leaflet suggesting that for Christians, fracking presents “a choice between economic gain and a healthy environment” and, as a result, came in for a degree of criticism in the Daily Telegraph on 14 August. At about the same time the Church of England published a note about its Mineral Registration Programme explaining that it was registering its existing interests “… to protect existing rights and interests made vulnerable by the change in the law. There are no particular plans to mine under any property. The focus is registration and protection”.

On Friday on Friday the Church issued two statements: a Clarification on suggested links with hydraulic fracturing or “fracking” and a Statement from Church of England on fracking. Our latest summary of developments is here.

Persecuted Christians

In April we commented on a piece by Lord Carey of Clifton in the Daily Mail about Christians feeling that they were a “persecuted minority”. Now comes a rather different and, dare one say it, far less sensationalist view from his successor. Speaking at the Edinburgh International Book Festival, Rowan Williams pointed out that being made to feel mildly uncomfortable hardly amounted to “persecution”:

“I am always very uneasy when people sometimes in this country or the United States talk about persecution of Christians or, rather, believers. I think we are made to feel uncomfortable at times. We’re made to feel as if we’re idiots – perish the thought! But that kind of level of not being taken very seriously or being made fun of; I mean for goodness sake, grow up.

You have to earn respect if you want to be taken seriously in society. But don’t confuse it with the systematic brutality and often murderous hostility which means that every morning you get up wondering if you and your children are going to make it through the day. That is different, it’s real. It’s not quite what we’re facing in Western society.”

No further comment necessary.

Religion and private law seminar

Máiréad Enright has sent us details of the latest seminar in the ESCR Public Life of Private Law series, on religion and private law, to be held at the University of Kent (Keynes College Room KS14) on Thursday 19 September :

“Private law is associated with the possibility of individual and group self-regulation. It allows citizens to depart from and supplement public norms. Our focus in this seminar will be on the developing religious use of private law to depart from the norms of state family law. Should we be troubled by ‘privatized diversity’  and the spectre of ‘law without a state’?  Does the emancipatory adage ‘from status to contract’ entirely capture the use of private law by minority groups to defend and sustain territory apart from the state? Does the channelling of religious disputes through private law depoliticize and marginalise them?”

Confirmed speakers include: Emmanuel Melissaris, Emmanuel Voyakis, Samia Bano, Aileen McColgan, Daniel Monk, Aina Khan and Christine Schwoebel. To register your interest in attending please e-mail m.enright@kent.ac.uk, indicating any dietary or access requirements. Further details of the series, including recordings of the first two seminars, are available at publicprivatelaw.wordpress.com.

Recent consistory court judgments

Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch)

Regrettably, it is not uncommon for errors to occur in the case of reserved burial plots.  In this case, the burial of an unrelated person in a reserved plot adjacent to the interment of a widow’s late husband precluded her eventual burial alongside him. Subject to an assessment of practicability of conducting a seemly exhumation, a faculty was granted for his correctly-buried body to be reinterred elsewhere in the cemetery and for the reservation of an adjacent burial plot for the widow.

Re St Bartholomew Binley [2013] Coventry Cons Ct (Stephen Eyre Ch)

St. Bartholomew is a Grade I listed Georgian church was built in the early 1770’s as the estate church for Coombe Abbey. A petition was granted for the installation of a projector, fixed in a box under the balcony, and a screen to be housed in a box across the sanctuary arch. The latter proved the more problematic, particularly to the Georgian Group, but the chancellor agreed with the Diocesan Advisory Committee and the pragmatic approach of English Heritage that the proposed changes would not harm the character of the church.

Richard III: the saga rumbles on

On Thursday Haddon-Cave J handed down an unusually long judgment in the preliminary hearing in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August). Quite contrary to our prediction, he granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester in relation to the intended reburial of Richard III in Leicester Cathedral.

In his concluding comments, the judge urged the parties to avoid embarking on the (legal) Wars of the Roses Part 2, and strongly recommended that the fundamental question as to where and how Richard III is reburied should be referred “to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed.”  Nevertheless, Leicester Council and Leicester University were quick off the mark in issuing statements on the judgement, here, and here.

The substantive hearing of these proceedings is expected to take one day and is set down for next term. Haddon-Cave J has ordered skeletons to be exchanged one week beforehand. How this  will turn out is anyone’s guess but, given our recent track-record, we aren’t guessing.  We will however, post an analysis of Thursday’s judgment.

Over at the St John’s Center for Law & Religion Forum  Perry Dane, of Rutgers Law School, is currently posting a very interesting two-parter on the intended reburial. Part one is here; part two is presumably on its way.

Ecce pecuniam

When we reviewed the attempts of 81-year-old Cecilia Giménez to restore the Ecce Homo fresco by Elijah García Martínez in the Sanctuary of Mercy church in Zaragoza, we noted that whilst Specsavers missed the opportunity to include the “restoration” in their advertising campaign, others had begun to capitalize on its notoriety.  In the first four days, the church realized €2,000 from entry fees, and now one year on, the fresco has drawn more than 40,000 and raised in excess of €50,000 for a local charity in the town of Borja.  The Guardian reports that Giménez and a local council are to sign a deal to share profits from merchandise featuring the image.

Although any suggestion of causality would be misplaced, we can report that the Mona Lisa, (a.k.a. Lisa Gherardini) is probably spinning in her grave, though not at the possibility of a similar disfigurement since La Gioconda is safely behind bullet-proof glass.  However, in yet another tomb opening/DNA examination exercise, it is reported that scientists have opened a tomb in Firenze with a view of extracting DNA in an attempt to identify the model for da Vinci’s famous painting.

And finally, one for the silly season

The BBC reports that a child support magistrate in the US has ordered that a baby’s first name be changed from “Messiah” to “Martin” on the grounds, she asserted, that the only true messiah is Jesus. The parents of seven-month old Messiah DeShawn Martin had gone to court in Tennessee because they could not agree on his surname. The magistrate, Lu Ann Ballew, ordered that the child’s first name should be changed as well because “The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ”. So the baby is now Martin DeShawn McCullough, which gives him both his parents’ last names.

Er, First Amendment, anyone? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech… According to Religion Clause the child’s mother is appealing the magistrate’s decision to the Tennessee Chancery Court and a hearing is scheduled for 17 September. Which is no great surprise: if the decision doesn’t fail on the establishment limb of the First Amendment it probably violates the free speech limb.

(Incidentally re titles, “earl” is also a title – but that did not seem to bother Earl Warren CJ of the US Supreme Court.)

Court permits 40 solar panels on “Arts and Crafts” church

The Alaskan village of Newtok appears to have little in common with the church of St Francis of Assisi in Meir Heath in the diocese of Lichfield, yet the decision of the Consistory Court to permit the installation of 40 black photovoltaic solar panels provides an example of what local communities in the UK might do to lessen the impacts of global warming elsewhere – but too late for the inhabitants of Newtok, where it is predicted that the highest point will be under water as early as 2017, making them America’s first “climate change refugees”.

One of the principal reasons for seeking a faculty to install solar panels on this “Arts and Crafts” church in Re St Francis Meir Heath [2013] Lichfield Cons Ct was the belief of the petitioners [at para.6]

“that it is appropriate that they and the worshipping congregation of St. Francis should strive to reduce their ‘carbon footprint’ and to contribute to preserving the environment by using renewable energy rather than fossil fuels.”

In 2009, the Church of England initiated a programme of carbon reduction, Shrinking the Footprint, with a target of 80% by 2050, and an interim target of 42% by 2020.  As we have discussed earlier, the installation of solar panels on listed churches is not unknown, but most cases the panels have not been visible from the ground: see, for example, In the matter of St George, Kemp Town, Brighton.  In the case of St Francis, Meir Heath, the chancellor had to take into consideration the fact that although not listed, the church of St Francis was of architectural significance and that the pitch of the roof was such that the photovoltaic panels would be visible from the south side, i.e. on approaching the entrance, and most readily from the vicarage and partially on approaching the entrance, but not from the highway [1].

Arguments before the court

Planning permission was not required for the installation and the local planning authority chose not to make any representations. The Diocesan Advisory Committee, (DAC), did not recommend approval, and although itself not a party to the action, English Heritage expressed its objections in a detailed submission. However, there were a number of letters of support for the Petition from parishioners and members of the congregation and from Fulford Parish Council, which was particularly influenced by the financial benefits which will support the church’s continuing viability.

Importantly, the Diocesan Environmental Officer offered strong support for the proposal, describing it as “being well-thought through; as fitting with the Church of England’s ‘Shrinking the Footprint’ campaign; and as worthy of commendation for integrating care for Creation with moves to ensure financial stability for the church”.

In parallel with their concerns regarding the church’s carbon footprint, the petitioners’ justifications for the installation of the photovoltaics were also energy-related, [at para. 6]: the high roofs and elevated position conspired to make the church’s heating difficult and costly; and the income from the solar panels would assist in meeting those costs and thereby help to ensure the continuing financial viability of the church.

The DAC believed that although the church of St Francis “has not yet been designated as a listed building” it was nonetheless architecturally significant, and noted an Architectural History Practice report in 2008 which described St. Francis’s as being “a significant work” by W Curtis Green and recommended that it should be listed. It considered [at para. 10] that

“[the] architectural and historical significance of buildings does not lie only in those parts which may be easily seen from the public highway … the roof is a key element of the arts and crafts design and the panels would be too visually apparent … the adverse visual effects of the proposed installation on what is clearly an important historic building outweighed its potential benefits”.

The Chancellor rejected English Heritage’s submission that the church should be treated as if it were listed, noting [at para. 17]

”it is not appropriate for me to apply to an unlisted building the special regime which applies to listed buildings. This is particularly so as the listing for the relevant area was made as comparatively recently as 1981”.

The petitioners cited the decision of Cardinal Ch in Re St Mary Moseley [2011] Birmingham Consistory Court, who granted a faculty for the installation of solar panels on a Grade II listed church, taking account of the approach taken by the planning inspector (who had already granted planning permision). However, Eyre Ch stated that though such a decision might be highly persuasive he would not be strictly bound by it; and neither the planning inspector nor Cardinal Ch were purporting to say that the installation of panels would always be appropriate and permissible.

Analysis and judgement

In his analysis, Chancellor Eyre stated that he must give considerable weight to the DAC’s assessment and to the expert views of English Heritage.  In matters of aesthetics, he noted that whilst it is not for a chancellor to substitute his own views for those with particular expertise, he was entitled and bound to take account of the actual physical features of the church and to consider those features as they manifestly were on his site visit.

The DAC’s refusal to recommend the Petition was influenced by its conclusion on the adverse visual impact which the proposal would have. This played a lesser part in English Heritage’s concerns, which related more to the impact on the integrity and significance of the building.

In addressing these points in granting the petition, the Chancellor noted that the overall appearance of the church will be little altered, the Arts and Crafts appearance remaining: “the appearance will be that of an Arts and Crafts building with solar panels present on its markedly less visible rear face”. Moreover, in terms of integrity, the argument put forward against the current proposal would have applied equally to the earlier alterations – the addition of a church hall and meeting room.  He concluded

“[t]hose panels will have a limited impact on the appearance of the church but will not markedly alter that appearance and will contribute to the continued use and viability of the church building. In those circumstances the further harm to architectural integrity of the church is justified.”

Comment

One thought comes to mind. The Church of England’s faculty jurisdiction exempts it from the requirement to seek listed building consent (though not, it should be emphasised, from planning controls) – but, unlike secular controls, it applies to all C of E churches, whether listed or not. English Heritage, on the other hand, is primarily concerned with listed buildings: Faculty Jurisdiction Rules 2000 [2].

So why English Heritage’s concern about an unlisted building? The chancellor noted at para 11 that “it is the view of English Heritage that the Petition should be approached by regarding the church as if it were listed”. Which leads one to ask, “why should it?”. Either a building is listed or it is not – and if it is not, it is not entirely obvious why the matter should involve English Heritage. Similarly, the DAC explains that although the church of St Francis “has not yet been designated as a listed building” it is nonetheless architecturally significant [para 9]. But every unlisted building, by definition, “has not yet been designated as a listed building” – so exactly where do you stop? Eyre Ch evidently decided that whether or not a building is in fact listed should be the dividing-line:

“… account has to be taken of the building’s character … but the special status and consideration applicable to a listed building do not apply. This is a church building which has already been altered from its original appearance” [para 24].

David Pocklington and Frank Cranmer

[1] “Although it is in an elevated position the land around it is largely lined by trees, so that it is not readily visible from outside its own grounds”, [para. 2].

[2] The Faculty Jurisdiction Rules 2013 contain similar provisions regarding English Heritage and come into force on 1 January 2014