Ecclesiastical Law Association

Ecclesiastical Law Association

Re St. Andrew Thornhaugh [1975] Theobold Fitzwalter Butler Ch. (Peterborough)

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The Parochial Church Council applied for a faculty to authorise the sale of a helmet which, since the early 17th century had hung over the tomb of the first Duke of Bedford. The Chancellor determined that he was unable to grant a faculty, for two reasons. Firstly, the PCC had no title to the helmet, as it belonged in law to the descendants of the first Duke of Bedford. Secondly, section 3 of the Faculty Jurisdiction Measure 1964 provides: "A Court may grant a Faculty to which this section applies (1) although the owner of the monument withholds his consent thereto or cannot be found after reasonable efforts to find him have been made... (3) no faculty to which this section applies shall be granted if the owner of the monument in question withholds his consent thereto, but satisfies the court that he is within a reasonable time willing and able to remove the monument … and to exercise such works as the Court may require to repair any damage to the fabric". In this case there was no evidence at the hearing as to who was or were the heir or heirs at law, and no evidence as to whether they gave or withheld their consent.

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