Two petitions brought by the incumbent, a churchwarden and Highways England related to the disused burial ground of Hull Minster, described as a non-statutory site of nature conservation importance. One sought a faculty to carry out archaeological excavation, including the removal and safe storage of affected memorials and the exhumation of interments and their subsequent re-interment in the northern part of the burial ground to allow construction of a new slip road as part of a major highway improvement scheme. The other concerned works relating to the re-instatement of the burial ground following archaeological excavation and the clearance of burials. This included the excavation of human remains, analysis of a large sample of the remains, re-interment of the remains, re-siting of memorials, rebuilding of the boundary wall of the burial ground, and landscaping. It was anticipated that somewhere approaching 19,000 interments would be disturbed by the works, and it was proposed to take a sample of 1,500 skeletons for analysis.

The current scheme had been under discussion for a substantial number of years and had resulted in wide agreement about the project. Two areas of dispute remained. Historic England considered that the sample size should be between 2,000 and 5,000 and not limited to 1,500. Historic England also considered that the samples for analysis should be removed from the site and stored off-site for up to ten years so that funding could be applied for to enable biomolecular analysis to take place as well. The position taken by Highways England had been governed by the view held by the Parochial Church Council and the Diocesan Advisory Committee that all remains should the re-interred within the time to be taken by the overall construction works. Further, the obtaining of funding for any further research was speculative at this stage. There was one objection to the petitions, from a woman whose four times great-grandparents were buried in the part of the burial ground which would be affected by the road-widening.

Three issues of law were raised: first, putting to use a consecrated churchyard for a secular purpose and contrary to the terms of the sentence of consecration; second, the exhumation of human remains which have been interred in consecrated ground under the protection of the ecclesiastical court of the diocese; and third, the scientific examination of those human remains between exhumation and re-interment. In relation to the first, the chancellor held (per Re St John Chelsea [1962] 1 WLR 706) that faculties may be granted for secular use where the original purpose of consecration can no longer lawfully be carried out, but (per Re St Mary the Virgin, Woodkirk [1969] 1 WLR 1867) that he ought not to grant a faculty unless he was satisfied that considerations of the public interest required that the proposed road improvements should be carried out, that there was no reasonable alternative and that the public interest outweighed the interests of the objectors and the public interest that consecrated land should continue to be used for the sacred use to which it was dedicated. The case for the proposals must, he said, be proved conclusively or else it would fail. In relation to the second issue of law, the chancellor noted the finding of Ellison Ch in Woodkirk that there was no doctrinal objection either to exhumation or to re-burial in a communal grave, but that each should only take place if it was proved to be necessary. In relation to the third issue, the chancellor noted from the authorities the general principle that the advancement of science and of human understanding is a public benefit which can be sufficient reason for allowing an exhumation. He further noted that if there was a public benefit that was likely to accrue from the examination and analysis of a large-scale exhumation through scientific examination of the remains exhumed prior to re-interment then that was a factor that could be weighed in the balance when deciding whether the exhumation was justified.

In the present case, this meant that, first, notwithstanding the fact of consecration, it was possible for a consistory court to allow land set aside by the sentence of consecration to be taken and used for road-widening schemes provided that the necessity for such a scheme was established; and second, if the case for allowing the land to be so used was made out, the fact that it would involve exhumation and re-interment, possibly in communal graves, was not in and of itself a reason why the scheme should not be permitted. If the presumptions against damaging a heritage asset, the secular use of consecrated land and permitting the exhumation of human remains were to be overcome, then there must be sufficient public benefit. Here the chancellor was satisfied that a good case had been made out in terms of public benefit and so authorised the issue of the faculties sought. [Jonathan Storey]