Ecclesiastical court judgments – June

By David Pocklington on 1 July 2024

Review of the ecclesiastical court judgments during June

The six consistory court judgments circulated in June 2024 include:

This review also includes: CDM Decisions and Safeguarding; Visitations; and Links to other posts relating to ecclesiastical law.

Reordering, extensions and other building works

Removal and replacement of pews

Re St. Augustine of Hippo Wrangthorn [2024] ECC Lee 1 The petition is for a relatively modest re-ordering of the Grade II parish church, to include: replacing most of the pews with unupholstered chairs; modifications to the north transept and chapel; upgrading of the lighting and sound systems. Permission is also sought for the installation of air source heat pumps; construction of a link between the church and the church hall; and works to the church hall, including internal refurbishment; installation of solar panels and external works [3].

The DAC recommended the works subject to the proviso that: Full technical details of heating, lighting and solar panels should be submitted for approval by the Court prior to works commencing [7]. A series of observations and concerns were raised by Historic Buildings and Places (formerly the Ancient Monuments Society) in an email dated 25 July 2022, all of which were taken into account in subsequent revisions to the project [8].

Two objectors wrote to the registry following public notice, although neither elected to become a party and therefore I take their correspondence into account in this determination [11]. Their objection concerns the removal of the pews and they also complain about a lack of consultation in how the project has been presented [12].

Hill Ch. agreed with Historic England that these proposals, if implemented, would cause less than significant harm to the building [17]. The need for a level floor and for a heating system which will equip this parish to be carbon neutral is compelling. The removal of the pews is justified to enable a levelling of the floors which will improve access for those of limited mobility and enhance the use of the church both liturgically and for other events of benefit to the community [18].

In his assessment, the public benefit would outweigh the harm by a considerable margin [19]. He therefore granted a faculty. [Re St. Augustine of Hippo Wrangthorn [2024] ECC Lee 1] [Top of section] [Top of post]

Re St. Michael Twerton-On-Avon [2024] ECC B&W 1 In 2017, the then Archdeacon of Bath had granted a licence for temporary reordering which allowed the removal of the church pews into storage, the removal of five radiators and the laying of a temporary carpet. The pews were placed in a storage facility with pews removed from Bath Abbey. The licence was limited to a period of 18 months. For various reasons, including a vacancy in the benefice and the Covid pandemic, nothing had been done about the return of the pews. In the interim, Bath Abbey arranged for the disposal of its pews from the storage facility, and by mistake the pews from St. Michael's church were included in the disposal. The petitioners now requested a confirmatory faculty for the permanent removal of the pews. The Chancellor granted a faculty for the permanent removal of the pews, but not for their disposal, which remained unlawful. A condition was attached to the faulty that the petitioners should use their best endeavours to try to recover a sample number of the missing pews. [Re St. Michael Twerton-On-Avon [2024] ECC B&W 1] [Post] [Top of section] [Top of post]

Net zero issues

Re St. Anne Ings [2024] ECC Car 2 The Petitioners sought to install 28 black solar panels on the existing slate roof on the south side of the Grade II* church, with associated battery storage to be installed in the church tower. The Lake District National Park Authority had refused planning permission, but the Petitioners indicated that an appeal was planned. The Diocesan Advisory Committee ("DAC") had recommended the proposal, but Historic England, the Georgian Group and Historic Buildings & Places had raised objections, without becoming parties opponent. The Chancellor considered that the proposal, if implemented, would cause only moderate harm to the building and would be reversible. He also observed that the proposal would be a response to the Church of England's call to action in respect of climate change. He granted a faculty subject to conditions that planning consent should first be obtained and that the panels should be removed after 26 years, the DAC's estimate as to the probable lifespan of the panels. [Re St. Anne Ings [2024] ECC Car 2] [Post] [Top of section] [Top of post]

See also Re St. Augustine of Hippo Wrangthorn, where the proposals for reordering included inter alia the installation of air source heat pumps to the north of the church and installation of underfloor heating throughout the church and church hall, with the retention and relocation of existing radiators in the church to serve as back-up.

Re St. Bartholomew Orford [2024] ECC SEI 1 This is a petition for a confirmatory Faculty to regularize the unlawful installation of 6 combination light and heating chandeliers to replace the current lights and the current oil-fired heating system [2]. The chronology of events is listed in [4]: the new chandeliers had been installed after the proposals had been recommended by the DAC, but before the petition had been referred to the Chancellor.

There was one party opponent: their objection was out of time but, as the works had already been carried out unlawfully, Gau Ch exercised his discretion and allowed the objection to proceed [8]. In contrast to the "very scant statement of needs and no statement of significance at all" [9], the objections in written form were extremely extensive, comprising "comprise a lever arch file with 8 separate sections/indices including a total of 72 separate subsections; they include a 22-page written statement from the party opponent, a 6 page written statement from his wife, and an 11 page 'first skeleton argument'" [15].

The petitioners stated that they objected to the letter from the Victorian Society being admitted as evidence. Nevertheless, the Chancellor read it, but "[i]n the absence of it being in appropriate statement form and in the absence of any chance of the author being questioned, [could] give it very little weight. In the same way, in the absence of the chance of questioning [the objectors] n the contents of their statement, [could] give those statements less weight than had they given live evidence" [28].

In final submissions, the petitioners stated that there had been a breakdown in relations between them and the party opponent as they had been threatened with the prospect of fines and prosecution in some of emails and written statements. They emphasized the financial savings of the new system. They emphasised that there was no reliable proof that the lights themselves were nineteenth century and also that there was no evidence that the Victorian Society had ever visited the Church [32].

On his pre-hearing visit to the church with the Registrar, Gau Ch. noted:

"[33]. The most striking feature of the church as you enter is the feeling of light and airiness. These features cannot even be dimmed by the organ which, installed where it is, has all the grace of a brutalist block of flats being built next door to the Bodleian library. I unhesitatingly accept it is a very fine musical instrument. It has the added benefit that you do not have to look at it to enjoy its playing".

Addressing the Duffield questions, having visited the church and read all the very detailed evidence, the answer to the first question was 'Yes': the original lights, although not mentioned by Pevsner or forming part of the listing particulars were attractive and sympathetic to the interior [39]. The replacements were not. The Church is not listed Grade I because of its lights: they were attractive but not so beautiful or special that they could be considered anything other than noteworthy [40].

Gau Ch. rejected the party opponent's submissions that the old oil-fired heating system was reliable and could be maintained easily. He accepted the petitioners' submissions in relation to that; and that the new lighting/heating chandeliers had proved efficient, economic and flexible to use. He also accepted that they had allowed further outreach and public benefit and missional work (in its widest sense) to thrive. However, the submission that the church should be ordered to use an inefficient and ecologically unsustainable boiler was rejected [41].

Accordingly, the petition passed the seal subject to the conditions: the CBC's mitigating advice must be followed in terms of the "deplorable" wiring and damage caused to the building; the original lights (currently in storage) re to be photographed and a full description of where each was originally hung must be made. Photographs and descriptions are to be archived; and the original chandeliers are to be sold or auctioned [42].

[Re St. Bartholomew Orford [2024] ECC SEI 1 [revised]] [Top of section] [Top of post]

Exhumation

Other

Re An Application for the Exhumation of the Mortal Remains of RM [2024] ECC Wor 5 In 1984 the cremated remains of RM were interred in a churchyard. RM's widow died in 2022 or 2023, and her cremated remains had been retained by her daughter [1]. The daughter now wished to scatter the remains of both parents under a tree in her garden in order to fulfil the wishes of her mother [4]. There was no intention to rebury the remains or erect any monument.

The property at which it was proposed to scatter the remains is not subject to any trust preventing future sale whether by BC, or other members of her family following her own death. The Chancellor was therefore unable to gauge how permanently the land would remain in family ownership and occupation [5].

Following the guidelines in Re Blagdon Cemetery [2002] Fam 299, Court of Arches, Humphreys Ch. could not find any special circumstances that made this case sufficiently 'exceptional' to permit an exception to the rule of permanence of burial. Citing with approval Etherington Ch. in Re Sheringham Town Cemetery [2023] ECC Nor 1 she stated the desirability of consistency and equal treatment indicated that the Chancellor should refuse this petition. [Re An Application for the Exhumation of the Mortal Remains of RM [2024] ECC Wor 5] [Top of section] [Top of post]

Churchyards and burials

Churchyard Regulations

Re Holy Trinity Kingswood [2020] ECC Bri 2 The petitioner sought permission for a memorial consisting of an upright stone and a horizontal slab to mark a family grave containing four interments. The petitioner preyed in aid the fact that the memorial will mark what is now a family grave as it contains the remains of his grandfather (who died in 1952), his grandmother (who died in 1969), his mother (who died in 1997)and his father (who died this year). There have always been, apparently, good reasons why a memorial could not be placed here. Broadly these involved a lack of funds available to members of the surviving family [3].

This type of memorial was not within the current churchyards regulations, but there were other graves with memorials of this type in the churchyard. The Chancellor considered that it was only equitable in the circumstances to grant a faculty. [Re Holy Trinity Kingswood [2020] ECC Bri 2] [Top of section] [Top of post]

Trees

Re St. Kenelm Upper Snodsbury [2001] Worcester Const. Ct., Mynors Ch. The Chancellor granted a faculty to authorise the felling of a sycamore tree. The petitioners had claimed that the work was necessary because the tree's roots were damaging the churchyard retaining wall and the foundations of the church. In giving his judgment, the Chancellor set out the legal and practical aspects which should be taken into account when determining an application to remove a tree from a churchyard. [Re St. Kenelm Upper Snodsbury [2001] Charles Mynors Ch. (Worcester)[Top of section] [Top of page].

[Note: This is the first consistory judgment since the changes to the 2000 Rules which recognized that petitions relating to works to trees were quite different from those relating to building works and provides a special procedure accordingly [2]]

CDM Decisions and Safeguarding

Clergy Discipline Commission: Annual Report 2024, (17 June 2024).
Clergy Conduct Measure – General Synod update, (29 June 2024).

CDM Decisions

Written determinations of disciplinary tribunals hearing complaints brought under the CDM, together with any decisions on penalty are published by the Church of England; included are judgments from the Arches Court of Canterbury and the Chancery Court of York where determinations have been appealed. The majority of complaints that are made under the CDM are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal.

Penalties by consent

A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.

Name: The Revd Canon ANNE RUSSELL
Diocese: Leeds
Date imposed: 14th June 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(aa) Failing to comply with a requirement imposed by the code under section 5A of the Safeguarding and Clergy Discipline Measure 2016
Penalty: Injunction

Name: The Revd IAN WHITTLE
Diocese: Norwich
Date imposed: 4th June 2024
Relevant CDM section: 30(1)
Statutory Ground of Misconduct: Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Removal from Office (until August 2024)

Reports from the Independent Reviewer

Individual Reports from the Independent Reviewer are to be found at House of Bishops' Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.

CFCE Determinations

The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. Notes from the meeting on Thursday 7 September 2023 remain the last to be reported. We will provide links to subsequent meetings as they become available. The programme for 2024 is here; the next meeting will be on Thursday 18 July 2024.

Visitations

Winchester Cathedral Chapter Statement on Bishop Mounstephen's Review Winchester Cathedral welcomes Bishop Mounstephen's Review. We are committed to fully engaging in the process, which will be conducted for the Bishop by an independent third party.

We appreciate the Bishop's support and share a desire to quickly understand and address any concerns related to our culture, management, or governance — particularly in light of the recent concerns around the management of the much-loved choral tradition. We recognise that trust in the Cathedral's leadership is essential for a healthy and flourishing church and see a review as an opportunity to work towards that end goal.

With the news of his resignation, we also want to thank Mark Byford for his dedicated service as Senior Non-Executive Member of Chapter at Winchester Cathedral over the past seven years. His contribution to the Cathedral has been invaluable. We wish him every blessing for the future and will soon share plans to ensure we can honour his contribution. (20 June 2024).