Churchyards

Lydbrook Parochial Church Council sought an order requiring the District Council ("DC") to fulfil its liability to maintain Lydbrook's closed churchyard. The DC sought to have the proceedings struck out because (1) proceedings for judicial review were the appropriate way of dealing with this type of matter; or (2) there was no prospect of success, or (3) the claimants had not agreed to the matter been dealt with through alternative dispute resolution. The judge determined that it was appropriate for the matter to be dealt with by the County Court. The applications to strike out and for summary judgment were dismissed. To avoid substantial costs, the judge ordered a stay of proceeedings in order to allow the parties time to resolve their dispute.

The priest in charge and a churchwarden sought permission to reuse for burials two areas of the churchyard, which had not been used for burials since 1850. The Commissary General determined that it was appropriate to use the areas for reburials and she granted a faculty. For the benefit of other parishes in the diocese, she indicated that reburial would normally be allowed where there had been no burials in an area to be reused for at least 75 years.

The petitioner wished to apply fine shingle or fine gravel to the area within the kerbs of two graves, for the purpose of weed suppression. The Parochial Church Council ("PCC") opposed the proposal, as the Churchyard Regulations provided that “kerbs, railings or chippings, whether raised or at ground level, are not permitted", and the PCC had been endeavouring to enforce the regulations. They would have preferred the kerbs to be removed. The Commissary General considered the factors in favour and against allowing the proposal and decided, on balance, to grant a faculty: there was no petition for the removal of the kerbs; the introduction of fine shingle would not make mowing or strimming more difficult; the appearance of fine shingle was more natural than chippings; and the fine shingle would slow down the growth of weeds.

The petition related to improvements to the entrance and pathways to the church. This involved removal of a large number of old memorials which had been laid as paving during the 1900s. These memorials were inclined to be slippery underfoot when wet, giving rise to health and safety concerns. The Chancellor granted a faculty, subject to a condition that within nine months a report should be submitted concerning progress on the work and as to the most appropriate way to deal with the old memorials removed from the pathways.

The Petitioners wished to move one of the floodlights installed with faculty permission in 2011 from the South East to the North West corner of the churchyard and to increase the floodlighting from 25 hours a year to approximately 150 hours a year. There were several written objections from parishioners, citing effects on wildlife, the Church of England’s net zero policy, potential for crime, light pollution and the fact that the lighting would not be visible to most people. The Chancellor considered that the petitioners had given no substantive reason for altering the terms of the original faculty and he therefore refused to grant a faculty.

The churchwardens of the Grade II* listed All Saints, Emberton, sought a faculty to fell a healthy, mature western red cedar overhanging a neighbouring property. The application was unopposed, supported by the Parochial Church Council (PCC), and recommended by the Diocesan Advisory Committee (DAC). The local authority’s tree officer raised no objection, noting structural issues in the tree and its inappropriate proximity to a dwelling. The Chancellor issued a written judgment to demonstrate the careful scrutiny required when permitting the felling of a mature, healthy tree, mindful of the Fifth Mark of Mission—to safeguard the integrity of creation. Acknowledging the PCC’s strong ecological commitment, he accepted their argument that removal was necessary to address the overshadowing and safety concerns of neighbouring residents. Relying on Re St Nicholas, Kingsey [2023] ECC Oxf 5, the Chancellor concluded that felling would cause no harm to the church’s significance and that the PCC had shown sufficient justification. He emphasised deference to the PCC’s wish to be good neighbours and to the advice of professional and statutory bodies. A faculty was granted subject to conditions, including the planting and nurturing of at least one replacement conifer within the next growing season.

Wakefield Metropolitan District Council sought a confirmatory faculty for the felling of a tree that had been removed from the churchyard without authority. A routine safety inspection by the Council had revealed that an ash tree was affected by a fungus and was suffering from ash die-back, which would cause the inner structure of the tree to deteriorate. The tree was duly felled without permission, which the Council could have sought from the Archdeacon under List B of the Faculty Jurisdiction Rules 2015 (as amended). After explaining the various methods whereby permission can be obtained for the felling of a tree, including in the case of an emergency, the Chancellor pointed out that the Council’s initial allegation that “We have always had an agreement that if the works are for safety reasons, then no applications are required” could not override the requirement for permission in accordance with the faculty rules. However, he concluded that it was appropriate in the present instance to grant a confirmatory faculty.

In April 2020, the Chancellor had granted an interim injunction (subsequently renewed) on the application of the Parish Council, who were responsible for maintenance of the churchyard. The injunction was against further lopping or removal of trees, or erecting a replacement boundary between the churchyard and the adjoining inn by the owner of the inn. The Chancellor asked the Archdeacon to meet the parties and agree the boundary line between the churchyard and the inn. Agreement was in fact reached. The Chancellor gave the Parochial Church Council (PCC) time to make representations regarding the boundary, after which the Chancellor would make a final order, which would include a declaration regarding the agreed boundary line and a prohibition against the owner of the inn doing any further lopping or felling or erecting a boundary fence or other demarcation. If the PCC wished to erect a fence in due course, they would need to apply for a faculty.

The subject matter of the petition was the felling of two mature lime trees in the churchyard. In 2020, a local authority tree expert had recommended that one tree should be felled and the other pollarded. The Parochial Church Council decided that both trees should be felled and replaced with yews. But subsequently, one tree was felled and the other pollarded. A formal complaint was made that the Archdeacon had erroneously allowed the felling of the first tree pursuant to List B of the Faculty Jurisdiction Rules. The second tree was later felled. On the evidence, the Chancellor decided that the first tree had been in rapid decline due to decay,  that it was appropriate for it to be removed, and it had been appropriate for the Archdeacon to deal with the matter under List B; the second tree was dying and/or dangerous, and there would have been a case for the Archdeacon granting a List B consent, failing which felling of the second tree should have been the subject of a faculty petition. The Chancellor granted a retrospective faculty for the removal of the trees, subject to conditions.

Following a complaint in 2022 from a local resident concerning the felling of a tree in a churchyard, the former Chancellor proceeded to determine whether the felling of this tree (T2) and another tree (T1) both of which had taken place with the approval of the archdeacon should have been the subject of a faculty application. She decided that the felling of T1 was permitted with the archdeacon’s approval, but held that the felling of T2 required a faculty (and granted a retrospective faculty). In her judgment in 2022, the former Chancellor required expert reports as to how to deal with the two tree stumps, a recommendation as to the planting of replacement trees and advice on the effect of the stumps on the nearby wall and memorials. In 2023, the Deputy Chancellor considered the reports that had been submitted and requested further reports from the Parochial Church Council and the church architect before any further action.