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The Legal Effect of Consecration of Land ‘Not Belonging to the Church of England’
Published online by Cambridge University Press: 28 April 2009
Extract
In January 2009, this Journal published an article by Kenyon Homfray, ‘Sir Edward Coke gets it wrong? A brief history of consecration’, which was concerned with the historical origins of a legal concept of consecration. While it is not especially germane to the direction of Mr Homfray's argument, his statement that ‘[i]n England, consecration does not appear to have any recognised legal effect on any land or building not belonging to the Church of England’ was somewhat surprising. It may be that he intended the expression ‘belonging to the Church of England’ as meaning no more than ‘affiliated to’ the Church of England or something similar. If that is all that was meant, then the statement could be accepted as more or less correct: consecration for worship according to the rites of, for example, the Roman Catholic Church would not have any effect in English law. But the words ‘belonging to’ would naturally tend to imply ownership of the land or building in question by the Church of England, in which case some qualification is needed. It may, therefore, be helpful to set out, briefly, the extent to which consecration is recognised, and has effect, in English law.
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References
1 (2009) 11 Ecc LJ 36–50.
2 Ibid, p 38.
3 The Church of England does not, of course, have corporate personality as such. References to property belonging to the Church of England here are simply meant as shorthand for property belonging to a corporation (sole or aggregate) within the Church of England.
4 Re St John, Chelsea [1962] 1 WLR 706 at 708, [1962] 2 All ER 850, London Cons Ct.
5 ie the consistory court of the diocese.
6 The Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 11(1) gives statutory recognition to these principles in relation to ‘all parish churches in the diocese and the churchyards and articles appertaining thereto’, declaring, ‘for the avoidance of doubt’, that the jurisdiction of the consistory court applies to them. Buildings licensed for public worship that are not likely to be consecrated are automatically subject to the faculty jurisdiction, unless the bishop directs to the contrary (ss 11(2) and (3)). The position of the unconsecrated curtilage of churches was put beyond doubt by the Faculty Jurisdiction Measure 1964, s 7, which declared that the court has the same jurisdiction over such land as over the church.
7 Halsbury's Laws of England (fourth edition, London, 1975), vol 14, para 1309.
8 The exceptions should essentially be limited to ‘peculiars’ – places by custom exempt from the jurisdiction of the consistory court on the basis that the ordinary of the place is someone other than the bishop – the largest category of which are the old ‘dean and chapter’ cathedrals but also including, in particular, the chapels of the older Oxbridge colleges. ‘Parish church cathedrals’ were removed from the jurisdiction of the consistory court by virtue of the Cathedrals Measure 1963, s 10(2).
9 Certainly the disposal by sale or lease of a privately owned consecrated chapel would not affect its position as being subject to the jurisdiction of the consistory court: see Re Tonbridge School Chapel (No. 2) [1993] Fam 281 at 290H, [1993] 2 All ER 338, Rochester Cons Ct. The bishop, however, is empowered by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 22, to direct, by order, that consecrated buildings or land that are not Church property shall cease to be subject to the legal effects of consecration if no useful purpose would be served by their remaining so subject.
10 See the observations to this effect in Newsom, GH and Newsom, GL, Faculty Jurisdiction of the Church of England (second edition, London, 1993), p 1Google Scholar. Any owner of a private chapel who wishes to continue to rely upon the ecclesiastical exemption in the long term would, in any event, be well advised to accept that the faculty jurisdiction applies to the chapel in question. Where there is a proper case for saying that a chapel is not subject to the jurisdiction of the consistory court (and such cases are likely to be few), the owners can nevertheless apply to have their building included in the list maintained by the Church Buildings Council under the Care of Places of Worship Measure 1999, s 1. Once included on the list, a building becomes subject to the faculty jurisdiction of the consistory court of the diocese in which it is situated (s 3).
11 Cemeteries Clauses Act 1847 s 23.
12 Ibid, s 24.
13 Local Authorities Cemeteries Order 1977, SI 1977/204, art 5.
14 Re Welford Road Cemetery, Leicester, [2007] Fam 15, para 10, [2007] 1 All ER 426, Ct of Arches.
15 This article confers powers on a burial authority to carry out certain works to graves and memorials, including, in certain circumstances, the removal of tombstones.
16 Re West Norwood Cemetery [1994] Fam 210, 224H–226F, [1995] 1 All ER 387, Southwark Cons Ct.