The petitioner sought a faculty for the installation of a memorial stone which, in its proposed material of black granite, fell outside the Diocesan Churchyard Regulations. The court considered the status of those Regulations and the test to be applied, referring extensively to its decision in Re St Saviour, Ringley [2018] Man 3, (2019) 21 Ecc LJ 254. The nature of Diocesan Churchyard Regulations is to delegate to an incumbent the court's authority to permit a memorial within their scope; memorials outside their scope may only be permitted by faculty. The court noted different approaches to the matter before the court in recent cases.

One approach was to put no burden on a petitioner save to demonstrate that, on the particular facts of the case, a faculty should be granted. This approach was adopted by Hill Ch in Re St John the Baptist, Adel [2016] ECC Lee 8. It was also adopted by Bullimore Ch in Re St Mary the Virgin, Eccleston [2017] ECC Bla 4, (2017) 19 Ecc LJ 392, who held that the Regulations were largely a matter of practicality rather than laying down artistic limits or what amounted to good taste; and that the Regulations were merely ‘a good starting point’ in considering whether the proposed memorial was suitable.

The second approach was to require a ‘substantial’ reason to be shown before a faculty was granted. This approach reflected both the significance of the Regulations in ensuring that memorials are fitting and appropriate to the nature of a churchyard, and the importance of fairness to those who had put aside their personal preferences and reluctantly complied with the Regulations. In Re St Leonard, Birdingbury [2018] ECC Cov 1, (2018) 20 Ecc LJ 386, Eyre Ch had reflected further on the critique of this approach in Re St Mary the Virgin, Eccleston, but had retained the view that the Regulations went further than matters of practicality and expressed a collective understanding as to what was generally acceptable.

In the present case, the court noted the extensive consultation before the Regulations had been issued, and agreed with the analysis in Re St Leonard, Birdingbury. Accordingly, the question was whether the petitioner had demonstrated a good and substantial reason to approve a departure from the Regulations. The churchyard contained so many black granite memorials that it would be unconscionable to refuse the petition; accordingly the faculty was granted. Authority to permit such memorials in this churchyard in the future would be delegated to the incumbent. [DW]