Judgment Search

Churchyards

Display:

The Parochial Church Council applied for an injunction to prevent the London Borough of Hounslow from developing a piece of land near the church, claiming that the land was consecrated, and historically had been part of the churchyard, notwithstanding that the Borough Council and its predecessor council had been registered with absolute title in respect of the particular piece of land for 69 years. The Chancellor dismissed the application.

This judgment arose out of a hearing before the Chancellor in Re St. George Hanworth [2016] ECC Lon 1. The issue of costs was referred to the Deputy Chancellor, who determined that the bulk of the costs of the London Borough of Hounslow should be paid by the Parochial Church Council.

The Vicar and Churchwardens sought a faculty to authorise the laying of a drain under a path between the church and the public sewer (with a view to servicing  a new toilet in the church at some time in the future); improvements to the paths and driveway serving the church; and the moving of the seven memorials in the northern section of the churchyard, in order to allow that area of the churchyard to be used as an open space for community use. There were seven letters of objection, but no objector wished to be a party to the proceedings. The Chancellor granted a faculty.

The proposal was to fell a sycamore tree in the churchyard and replace it with smaller suitable trees further away from the church building. The tree was at least 10m taller than the church tower and 5.3m from the church building, resulting in moss on the church roof, black mould on the nearest church buttress and the blocking of gutters and fall pipes during the autumn. A tree specialist also advised that there was a risk of splitting of the four main boughs. The Chancellor as satisfied that there as a good case for removing the tree and granted a faculty.

The Parochial Church Council wished to carry out works extending the church hall, next to the southern boundary of the churchyard, in order to improve the facilities that it affords for uses that are ancillary to the church and for wider community use. The proposed works included removal of two trees; relocation of memorials; removal and rebuilding gate post; resurfacing of the path. Letters of objection were submitted by eight parishioners, of whom one withdrew and two became formal objectors. The Chancellor stated that the test to be applied was not the test laid down in Re St. Alkmund Duffield [2001] (which applied to listed buildings) but the test set out by Lord Penzance in Peek v Trower [1881]: "All presumption is to be made in favour of things as they stand.  If you and others propose to alter them, the burden is cast upon you to shew that you will make things better than they are – that the church will be more convenient, more fit for the accommodation of the parishioners who worship there, more suitable, more appropriate, or more adequate to its purpose than it was before; and if you cannot shew this to the court, at least shew the court that a majority of those for whose worship the church exists desires the alterations which you propose." The Chancellor determined that the test had been satisfied. Faculty granted.

The petitioners sought permission to replace a bench surrounding a tree in the churchyard. They submitted with the petition a report by a firm of arboriculturalists, which indicated that the tree was in a dangerous condition and should be removed. The Chancellor gave directions that he would not grant permission unless the petitioners were able to produce evidence that the tree was not as dangerous as had been suggested in the report. The petitioners submitted a report from a tree expert employed by the borough council, who said that the tree was basically sound, showed "excellent signs of vitality", and a Quantified Tree Risk Assessment had suggested that risk was at a tolerable level. The Chancellor granted a faculty for the new bench, subject to some lower branches of the tree being removed, as recommended by the borough council tree expert.

The Chancellor granted a faculty for the replacement of the current church hall situated within the churchyard (a 1960s building, intended to be temporary and now in need of replacement) with a new single-storey hall, of which one elevation would be faced with brick to match the Victorian church building and the other elevations would be clad in timber.


The petitioners wished the Chancellor to authorise the setting aside of an area for cremated remains in the churchyard extension and to authorise a variation of the standard churchyards regulations in order to allow the incumbent to permit in future the erection of upright memorials and 'desktop memorials' in the churchyard extension to mark interments of cremated remains. They also asked the Chancellor to grant a confirmatory faculty in respect of upright memorials and 'desktop memorials' already installed to mark interments of cremated remains in the churchyard and churchyard extension during the past 18 years. The Chancellor was satisfied that the petitioners had made out a satisfactory case for the proposals and granted a faculty accordingly

The Deputy Chancellor granted a faculty to authorise the removal from the churchyard of a tree which was in danger of causing damage to an adjoining property.

Faculty granted for the removal wooden and plastic kerbs from a number of graves.