Judgments Recently Received

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Re St. Peter & St. Paul Burton Pidsea [2019] ECC Yor 4

In 2017 a faculty had been granted to authorise the installation of telecommunications equipment in the church tower, subject to a 20 year licence between NET Coverage Solutions Ltd (“NCS”) and the Parochial Church Council. NCS now wished to limit its activities to providing telecommunications infrastructure and to assign the licence to a company called Shared Access ("SA"), which would in future deal with the telecommunications operators and manage their licences. There were said to be some of advantages in this arrangement as a result of the passing of the Digital Economy Act 2017 and the coming into operation of the Electronic Communications Code on 28 December 2017. The Chancellor authorised the assignment to SA, subject to a condition that an undertaking in writing by SA would be given to the Court, that it would not register so as to be in a position to apply for Code Rights under the Electronic Communications Code.

Re St. Matthew Worthington [2019] ECC Lei 1

The Deputy Chancellor refused to grant a faculty for a memorial which was outside the diocesan churchyards regulations in a number of aspects, including: the design in the shape of a double heart; the stone wider than the maximum permitted under the regulations; polished blue granite; a green and white floral motif.

Re St. Cuthbert Over Kellett [2019] ECC Bla 1

The petitioners wished to remove items of redundant furniture from the Grade II* church, including a number of chairs, a litany desk and the pine pulpit. The pulpit had been relocated during the last interregnum, so that the presiding minister could more easily be seen preaching from a lectern and in order to free up space for major festival and school events. The proposal was to transfer the chairs to the vicarage, and to advertise the desk and pulpit in the diocesan magazine and, if there are no takers, to have them broken up. The Chancellor was satisfied that minimal harm would be caused by the removal of the items and he granted a faculty. He did, however, make it clear that the furniture to be transferred to the vicarage remained in the ownership of the churchwardens and could not be disposed of without further faculty.

Re St. Laurence Scalby [2019] ECC Yor 3

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.

Re St. John's Cemetery Elswick [2018] ECC New 4

The petitioner wished to have the remains of her late father-in-law temporarily exhumed for DNA analysis. She claimed that in 2018 her husband had been wrongly convicted of two rapes in 1983 and 1988. The petitioner's sister-in-law did not believe that her brother had committed the offences of which he had been convicted, but that her father might well have been the perpetrator. The Chancellor considered that the petitioner had made out a case for the temporary disinterment of the remains and sampling of bone fragments for DNA analysis, to establish whether there was a possibility of a miscarriage of justice. He accordingly granted a faculty.

Re Middlewich Cemetery [2019] ECC Chr 1

The petition related to a family grave. The grave had originally been reserved in 1924 and the deed giving rights of burial in the grave had eventually become vested in one of the petitioners ("A"). The grave already contained a number of interments of family members', including the remains of A's twin brother. In 2016, the cremated remains of A's uncle and aunt were interred in the grave, without A's consent. There now appeared to be no guarantee that it would be possible for A's remains to be buried in due time in the grave of his twin brother. The burial authority admitted an oversight in allowing the burial of the remains of the aunt and uncle without A’s consent. A's cousin said that it had always been his parents' wish to be buried with members of their family, including their own son. The Chancellor had to determine whether the aunt and uncle's remains should be moved, to allow A's remains to be buried in the grave, or whether to allow the remains of the aunt and uncle to stay in the grave. The Chancellor, after considering the decisions in Blagdon, Alsager, Twyford and Fairmile, determined not to grant a faculty for exhumation.

Re Christ Church Spitalfields [2019] EACC 1
(Spitalfields Open Space Limited and others v The Governing Body of Christ Church Primary School and others (No 2) [2019] EACC 1)

In 2012/13 a building (“the Nursery”) was erected on part of the disused, but still consecrated, churchyard to the south-east of Christ Church, Spitalfields, in the diocese of London. The Nursery was erected unlawfully, in contravention of section 3 of the Disused Burial Grounds Act 1884, which prohibits the erection of buildings in consecrated churchyards. In December 2017 the acting Deputy Chancellor of the Diocese of London issued a confirmatory faculty in respect of the Nursery, and refused to make a restoration order requiring the demolition of the Nursery. She also held that Spitalfields Open Space Limited did not have a sufficient interest to take part in the legal proceedings. On an appeal to the Court of Arches, the Court determined that: (1) Spitalfields Open Space Limited had a sufficient interest; (2) the Consistory Court had not had the power to grant a confirmatory faculty; (3) an application by a Mr. Ouvry to intervene in the appeal should be refused; (4) it was appropriate to make a restoration order, requiring the demolition of the Nursery. (5) to allow time for the occupants of the Nursery to relocate, the restoration of the site need not be completed until 1 February 2029.

Re All Saints West Bromwich [2019] ECC Lic 1

Unbeknown to the incumbent of the church, some cremated remains were buried very close to a sewer running through the churchyard. This fact came to light when repair work needed to be carried out on the sewer, which might cause damage to the memorial and disturb the remains. The deceased's widow requested a faculty to exhume the remains and reinter them in the same churchyard about 30 feet from their current position. The Chancellor was satisfied that the circumstances were sufficiently exceptional to justify the grant of a faculty for exhumation and reinterment.

Re St. Peter Chailey [2019] ECC Chi 2

The petition proposed the formation of a new meeting room/children’s area, enclosed by timber and glass; removal of some pews in the nave, the nave aisle and the south aisle, and their replacement with chairs; lowering the raised pew platforms in these areas; disposal of a timber screen to the St. John’s Chapel; and alterations to heating and electrical systems, including the replacement of the existing boiler with a new oil fired boiler. There was one party opponent, objecting to the removal of some of the pews and to the meeting room. The Deputy Chancellor was satisfied that the petitioners had provided sufficient justification for the works and granted a faculty. As regards costs, the Deputy Chancellor determined that the party opponent had behaved unreasonably in certain aspects of the proceedings and directed that the party opponent should reimburse the petitioners 50% of the court costs attributable to the progression of the case to an oral hearing and 50% of the petitioners' inter partes costs, namely their counsel's fees.

Re St. Edmund Fraisthorpe [2019] ECC Yor 1

There was a proposal to fell two sycamore trees in the closed churchyard. Probably due to the very dry summer of 2018, the roots of one of the trees in question had caused ground shrinkage, resulting in the appearance of vertical cracks at the corner of the church building. There were three letters of objection, but no formal parties opponent. The Chancellor was satisfied as to the need to fell the trees and granted a faculty.

Re Kingston upon Hull St. Nicholas [2019] ECC Yor 2

A faculty was sought for the following in the unlisted church which was built in 1969-1970: replacement of the existing twenty pews with one hundred and twenty Alpha SB2M chairs and four stacking trollies; a data projector to the front archway; an overhead retractable screen to the wall above the reredos; a lighting bar and stage lights to the front archway; replacement of the existing sound desk housing with a larger housing to accommodate additional equipment. Two parishioners wrote a letter of objection, but did not become parties opponent. They claimed that there had been insufficient consultation in the parish and that the audio-visual equipment had already been installed. The Chancellor was satisfied that there had been adequate consultation and that the petitioners had made out a good case for the works. As for part of the works being completed already, the Chancellor accepted the explanation and apology given by the petitioners. A faculty was granted in respect of all the works.

Re Holy Trinity Hastings [2019] ECC Chi 1

The faculty petition proposed extensive reordering. The church had entered a period of decline in the 1990s and was without an incumbent from 2010-2014, when it came under the leadership of a team from St Peter’s, Brighton, which is part of the Holy Trinity Brompton network. Since then a more modern style of worship had been adopted and the congregation had grown. The only point of contention was the type of chair chosen to replace the pews. The petitioners favoured the Alpha SB2M chair, which is a stackable, metal chair with a chrome finish and an upholstered seat and back. The Victorian Society objected to the proposed and became a party opponent. Originally, they felt that a wooden, unupholstered chair would be more appropriate. However, after further correspondence they accepted that in the particular context of a church which had been revived by modern forms of worship and other events in the church, the Alpha chair would be acceptable. This was also the view of the Deputy Chancellor, who granted a faculty for all the items, subject to two agreed amendments.

Re St. James Bulkington [2019] ECC Cov 1

The petitioner wished to place a memorial on her late husband's grave. Many of the details of the proposed design were outside the diocesan churchyards regulations, including: two coloured engravings, one of a robin and the other of a West Highland Terrier (to represent a deceased family pet); dark grey honed granite with a polished obverse side; gold lettering; the use of the words "Dad" and "Grandad" in the inscription; two flower holders in the base. The Parochial Church Council members unanimously did not support the proposal. Bearing in mind the context of the grave, which had near it other memorials with polished faces, the Chancellor did not approve the memorial design as proposed, but granted a faculty allowing: dark grey honed granite with a polished obverse side; white (rather than gold) lettering; the use of the words "Dad" and "Grandad" in the inscription; one flower holder only; the design of the dog, coloured white, but not the coloured design of the robin.

Re Christ Church Fulwood [2018] ECC She 3

The petition proposed extensive reordering of the church and the creation of a link between the church and the church centre. The controversial item was a proposal to place a curtain wall behind the three arches at the front of the nave and to create within the then enclosed chancel (designed by the well-known church architect George Pace) a meeting room, an office and storage area on three floor levels. The Chancellor considered that the proposal would harm the special character of the building and that the petitioners should consider alternatively ways of finding the meeting, office and storage space they required. The Chancellor therefore granted a faculty which excluded the proposals for the chancel.

Re Plumpton with East Chiltington cum Novington [2018] ECC Chi 3

Following a complaint by a parishioner, there were two petitions relating to the churchyards of two parishes. The Rector and Churchwardens sought a confirmatory faculty to allow the retention of several grave markers and other items which have been introduced without lawful authority, either because the Rector had allowed items to be introduced which were outside the delegated authority he had under the churchyards regulations or because items had been installed without his permission first being sought. In his judgment, the Chancellor emphasised the importance of clergy complying with their responsibilities under the regulations. The Chancellor granted a faculty with conditions requiring that several items should be removed from graves in the two churchyards.

Re St. Mary the Virgin Ashford [2018] ECC Can3

As part of Ashford Borough Council's 'Snowdogs' art trail, running from 12 September to 18 November 2018, the Rector and churchwardens, wishing to support the Council, had agreed to the Council placing a Snowdog sculpture in the churchyard for the duration of the event. A parishioner living next to the churchyard objected in September 2018 that no faculty had been granted to authorise the placing of the sculpture in the churchyard. The Rector and churchwardens applied for an interim faculty, which was refused, whereupon the Snowdog was removed. A formal petition was then presented, which, if a faculty were granted, would mean that the Snowdog would only be in position for the remaining 10 days of the event. The Commissary General considered that, although the scupture was to some extent incongruous and thus harmful to the setting of the Grade 1 listed building, its presence would be so transitory as to make the diminution of the Church’s setting insignificant. She therefore granted a faculty limited in time until the end of the event.

Re St. Saviour Westgate-on-Sea [2018] ECC Can 2

The Commissary General granted a faculty to replace the existing cupboard, worktop, sink, tap and water heater in the Vestry.

Re Holy Trinity Sittingbourne [2018] ECC Can 1

The petitioners wished to remove from the Victorian church all the original pine pews and two clergy stalls, and replace the pews with metal-framed, upholstered chairs, in order to enable greater flexibility in the use of the church. The Victorian Society and a private individual objected to the replacement of the pews with metal chairs. The Deputy Commissary General dismissed the petition. He considered that the bulk of the hoped-for benefits of the scheme could be met by something less than the complete removal of the pews.

Re St. Philip & St. James Hallow [2018] ECC Wor 4

A proposed memorial comprised an upright stone with a 'cover slab' supported on kerbs. The parish priest did not support the proposal, because (a) no similar type of memorial had been approved for very many years, (b) the memorial did not comply with the diocesan guidelines, and (c) the memorial would inhibit maintenance. The PCC objected on the grounds that (a) the memorial would create maintenance problems and (b) it might set a precedent that others might wish to follow. The Chancellor refused to grant a faculty as requested, but said that he would approve the upright memorial element of the proposal.

Re the Cremated Remains of AA [2018] ECC Lic 7

This is an anonymised judgment. The petitioner proposed to be buried in the same grave as her late sister and parents. However, when her sister's husband died, his cremated remains were interred in the same grave, notwithstanding that a granddaughter of the late sister had specifically asked the parish priest not to inter the husband's remains in the same grave, alleging that the husband had subjected her to repeated sexual abuse when she was young, and it would cause great distress to the family to have his remains in the same grave where the remains of some members of the family were already interred and where other members of the family wished their remains to be interred. The Chancellor decided that the continuing family distress which would be caused by allowing the husband's remains to be left in the grave amounted to exceptional circumstances justifying exhumation. He therefore granted a faculty for the exhumation of the husband's cremated remains and for reinterment of the remains in another churchyard.

Re St. Michael Breaston [2018] ECC Der 4

The petition contained substantial reordering proposals for the Grade I listed church, including new heating; an audio-visual system; electrical works; replacement of pews with chairs; disposal of the pulpit; relocation of the choir stalls and organ; and works to the floor. The Chancellor granted a faculty.

Re Holy Trinity Lamorbey [2016] ECC Roc 3

There were extensive reordering proposals for the 1930s unlisted church at an estimated cost of nearly £1,000,000 (of which £775,000 was already available from the sale of some property): substantial reordering of the church, works to the church hall, which is a detached building, and other external works, involving the creation of an external play area, slight relocation of the war memorial, and widening of existing footpaths. The Twentieth Century Society raised no objections to the proposals. The Chancellor granted a faculty subject to a condition that no work should commence until the Parochial Church Council had raised at least £900,000.

Re St. Augustine Slade Green [2018] ECC Roc 2

The Vicar and Churchwardens applied for a faculty for the removal and sale of the Vicar’s Stall, which had not been used since it was moved to its present position next to the north wall in 1991, following reconstruction work after a major fire. The church is unlisted and there were no objections, but the Victorian Society wrote to say that they did not support the proposal. The Chancellor was satisfied that it was not practical to use the stall where it was, and there was no other appropriate place to put it. The Chancellor therefore granted a faculty.