In refusing a confirmatory faculty for kerbs and stone chippings on a grave, the court considered the position following re St. Giles, Exhall [2021] EACC 1, and set out the approach to be taken to such a petition:
i. As with any petition, the burden of proof lay on the petitioner to show why a faculty should be granted.
ii. The applicable Churchyard Regulations would be a relevant factor – often, highly relevant, and on occasions, determinative. That was because the Regulations will have been approved by the Chancellor after consultation with DAC; to ensure that memorials respect their surroundings, harmonise with existing memorials, and enhance the character of the particular church or churchyard. They existed to promote good order, consistency of approach and public expectations in consecrated churchyards. They emerged following wide consultation; and sometimes they reflected the bitter experience of past difficulties and misunderstandings which needed to be avoided in the future.
iii. However, the Regulations would be only one of a constellation of infinitely variable factors which the court must consider on a fact-specific basis. There were bound to be cases where, for some good reason, strict adherence to the Regulations may be inappropriate. There need not be a ‘powerful’ or an ‘exceptional’ or a ‘substantial’ reason for approving a departure from the Churchyard Regulations. Rather, the petitioner must show some ‘good reason’ for the court to approve the memorial sought.
iv. Mere non-compliance with the Churchyard Regulations, of itself, could never be the only basis upon which to oppose a faculty petition. It was always necessary to consider whether the particular memorial in question was inherently desirable, or at any rate not undesirable, whether or not it complied with those standards.
v. The court should approach the suitability of the proposed memorial on its own merits, the only constraint being the inability of the court to permit something which is contrary to, or indicative of any departure from, the doctrine of the Church of England in any essential matter.
vi. In considering the suitability of a proposed memorial, the court should bear firmly in mind the threefold purpose of a grave memorial, which was to honour the dead, to comfort the living, and to inform posterity about the deceased. The first purpose infused the other two and must be considered in the Christian context of the setting of a Church of England graveyard to which members of the public had access. Such cases involved reconciling legal principle with personal wishes in a public context which was distinctively Christian. In particular, the court must have regard to the longer-term view and the wider public aspect in ways which may be less apparent to the family of the deceased, who would inevitably be caught up in their personal bereavement. What may be permitted in the unconsecrated parts of a local authority cemetery may not be appropriate in the setting of a Church of England graveyard. [DW]
