Boundaries and Bias
by Philip Jones
In two faculty cases, St Clement, Leigh- on- Sea (1988) 1 Weekly Law Reports 720 and St Peter and St Paul, Scrayingham (1991) 4 All England Reports 411, a consistory court determined a disputed boundary line between the churchyard and the neighbouring land, which was in secular ownership. In both cases, the court’s decision on the boundary favoured the Church.
Both consistory courts assumed that they did have jurisdiction to decide the boundary, notwithstanding the impact of this decision on secular property that did not belong to the Church.
Modern tribunals are generally created and regulated by detailed statute law, and this frequently gives rise to uncertainty about whether or not they have jurisdiction to decide a particular matter. The jurisdiction of the consistory courts, by contrast, is an ancient common law jurisdiction, not the creation of modern statute law. (Indeed consistory courts are older than common law itself.)
S.6 of the Ecclesiastical Jurisdiction Measure 1963 confirms the jurisdiction of the consistory court to ‘hear and determine … a cause of faculty … relating to land within the diocese’. It also preserves the consistory court’s jurisdiction over all legal proceedings not expressly abolished by the 1963 Measure.
This clearly indicates that the consistory court, in the exercise of its faculty jurisdiction, has jurisdiction to define the boundaries of the relevant Church property. As the 1963 Measure confirms, the court has an ancient jurisdiction over Church land which must surely include the boundaries of that land. Its jurisdiction to determine the boundaries of Church land has not been expressly abolished by statute.
The neighbours involved in the two cases cited above do not seem to have objected to the Church court deciding the boundaries of their property. The cases were, of course, decided some years before the Human Rights Act 1998. A neighbour involved in a boundary dispute with the Church today might object to the consistory court’s jurisdiction as incompatible with the right to an independent and impartial tribunal, contrary to Article 6 of the European Convention on Human Rights.
The diocesan chancellor is unlikely to be personally acquainted with the parties actually involved in the boundary dispute (the incumbent, churchwardens, parochial church council). Unlike most ecclesiastical officeholders, the chancellor is not subject to a residence requirement, and many chancellors do not even live within their dioceses. This may have the advantage of preserving their independence and impartiality. Ecclesiastical judges are also required to take the same oaths as secular judges and are therefore under the same duty of impartiality (s.2 of the 1963 Measure).
However, the churchwardens will usually be parties to any proceedings involving a disputed boundary, and churchwardens are also officers of the consistory court. The consistory court is therefore not completely independent of the parish.
Independence and impartiality are also, at least to some extent, a matter of public perception. Courts and judges must be seen to be impartial. In a secular, pluralist society the difference between the Church of England’s courts and its parochial authorities may be far from clear.
Thus, if a Church court is to decide the boundaries between Church property and neighbouring secular property, it may look as if the Church is being a judge in its own cause. The neighbours may therefore prefer the jurisdiction of the secular court to decide the boundary.
However, it is open to a neighbour to waive any objection to the independence and impartiality of the consistory court. There may be sound practical reasons for this. Many ecclesiastical judges are also secular judges, and may have long experience of deciding boundary disputes. Consistory courts may be quicker and cheaper to use than secular courts.