Consecrated Land: Status and Use

by Philip Jones

Modern ecclesiastical courts apparently refuse to recognise any distinction between a consecrated church or churchyard and a consecrated but vacant piece of land.

The effect has been to focus the modern faculty jurisdiction on the status of consecrated land (whatever that may be) rather than its use.  Consecration is referred to as if it confers some mysterious indelible ‘character’ on the land consecrated, rather as baptism confers an indelible character on a person.  Indeed the modern attitude to consecration approaches the ‘superstitious veneration that was paid to consecrated ground in times of popery’ (i.e before the Reformation) deprecated by Blackstone (Commentaries, Book 4, p.326).

In the case of Bideford (1900) Probate 314, a highway authority wished to widen an ‘inconveniently narrow’ street using land from an adjoining burial ground.  The burial ground had been closed to further burials.  The strip of land required for the road-widening contained five graves and two headstones.  The parishioners and church authorities were unanimously in favour of the road-widening, and even the personal representatives of those buried on the land consented to it.  However, the consistory court refused a faculty, believing it had no authority to permit a secular use of consecrated land.

On appeal, the Court of the Arches granted the faculty.  It held that a secular use was permissible because the burial ground was closed or ‘disused’.  As such it could no longer be used to bury deceased parishioners.  Thus ‘no question can arise as to the curtailment of parishioners’ rights of burial space for the future …’ (p.327).

The Court also noted that paths across churchyards were legally permissible and suggested that road-widening was lawful by analogy.  There was ‘no difference between a faculty for a path across the churchyard and for a path along one side of it’ (pp.326-7).

In Corke v Rainger (1912) Probate 69, a faculty was sought for a Church school to be built on consecrated land.  The land adjoined a church, and had been consecrated at the same time as the church, but it had never been put to use as a burial ground.

The faculty was granted.  The Court of the Arches agreed that ‘the proposed use [in this case as a school] was a proper one for consecrated land, that it was an ecclesiastical purpose’ (p.75).  Thus the Court’s reasoning was that unused or redundant consecrated land may not be used for a ‘secular purpose’ (subject to the exception for a closed burial ground agreed in Bideford) but may be used for an ‘ecclesiastical purpose’.

This case was to have important consequences for the subsequent development of faculty law.  The Court held that ‘Land once consecrated cannot be used for secular purposes’.  However, it cited no authority for this bald statement, and gave no reason for it.  Yet, a century later, this one bald statement still rules the interpretation and exercise of the faculty jurisdiction.

In a sense, the dictum was merely stating trite law.  All the previous case law and commentary agreed that consecrated land could not be put to secular use.  However, all the previous authorities refer to land

(1) on which a church, or church vestry, is built already, or

(2) on which it is intended to build a church, or

(3) which is in use as a churchyard, or

(4) which is adjacent to a church and required for acts of worship (as in Rugg v Kingsmill (1867) Law Reports 2 Privy Council 59). 

In other words, the earlier authorities all presupposed that consecrated land was consecrated to a particular use.

The great distinction in Corke v Rainger is that the land in question was not a place of worship or of burial, nor even a prospective place of worship or burial, but merely a vacant site.  As the Court noted, the land was ‘increasingly unlikely to be capable of being so used’ for worship or burial (p.73).

Yet even so, the land could still not be put to secular use, because it had once been consecrated.  Its consecration gave the land a status that was independent of any practical use.

If consecrated land is not to be put to consecrated uses it may be desirable to give preference to an ecclesiastical use against a secular use.  Subject to that qualification, however, it is argued that there is no reason why unused consecrated land should not be put to a secular use.

The notion of consecrated land as somehow incapable of secular use received its fullest expression in St. John’s, Chelsea (1962) 2 All England Reports 850.  This case was decided by G H Newsom QC, then deputy chancellor of London and later the author of a standard work The Faculty Jurisdiction of the Church of England (2nd edition 1993).

The title of this case is slightly misleading.  It might have been more aptly entitled Consecrated Land in Chelsea, for it concerned, not a place of worship but a piece of vacant land.  St. John’s church had been consecrated in 1876 but destroyed in an air raid in 1940.  The adjacent vicarage was also destroyed.  The ruins were removed subsequently, so the site had been vacant for 20 years or so when it became the subject of this case.

Following the destruction of the church a temporary place of worship was opened elsewhere in the parish.  The vicar intended to build a new church on the site of the temporary place of worship.  There were no plans to build a new church on the site of the old one.

The vicarage site had been leased for use as a car park, and it was proposed that the church site should also be used as a car park.  Such a use would have yielded a substantial income for the parish.  Thus the vicar and churchwardens sought a faculty permitting the lease of the church site.

However, Deputy Chancellor Newsom refused a faculty.  The consequence of his refusal, of which he must have been aware, was that the church site remained vacant and unused and the parish was denied the rental income.

Newsom refused the faculty because he considered that he did not have power to grant it.  Following Bideford and Corke he concluded that only three uses of consecrated land (other than the uses of worship and burial) are permissible by faculty:

(1) an ecclesiastical use

(2) throwing small parts of a churchyard into a highway (for road-widening) or rights of way across churchyards and

(3) a secular use where the original purpose of the consecration can no longer be carried out (p.857).

A car park is clearly a secular use, not an ecclesiastical one, and it is much more than a right of way.  Although the church site was not in use as a church, and had not been for 20 years, it was not actually impossible that it could be so used in the future.  Thus it could not be said that the original purpose of the consecration could no longer be carried out.  A faculty for a secular use must therefore be refused.

This decision can, of course, be defended as faithful to Corke v Rainger.  It may no longer be of practical relevance, as the disposal of church sites is now effected by statutory redundancy scheme, not by faculty: see s.68(2) Mission and Pastoral Measure 2011 (formerly s.54(2) of the Pastoral Measure 1983).  Nevertheless it produced an absurd result in the particular case.

It also had a bad influence on the development of subsequent faculty law.  It conferred a dubious ‘status’ on consecrated land, independent of its use.  This supposed status, rather than the practical use of the land, became the paramount consideration.  Consecrated land is subject to the faculty jurisdiction, not because it is used as a place of worship or burial, but simply because it is consecrated.

Newsom held that ‘In consequence of the sentence [of consecration] the building and with it the land on which it stands, becomes consecrated land, held to sacred uses and subject to the jurisdiction of this court’ (p.852).  This dictum has passed into law.  Yet it fails to appreciate that use is a question of fact, not law.  The ecclesiastical court can, and should, protect the use of a church or churchyard as such.  In the St. John’s case, however, there was no church (not even ruins), merely a vacant site.  Not was there any real prospect of a church or churchyard being built on the site in the future.  The site was consecrated, but it was not being ‘held’ to any use, sacred or otherwise. 

Thus Newsom was trying to protect a sacred use that had already ceased, but this is a logical impossibility.  To put it slightly differently, he was trying to protect the sacred use of a building, even though that building had ceased to exist 20 years before. 

Following his success in the St. John’s case, Newsom went on to decide St. Peter’s, Bushey Heath (1971) 2 All England Reports 705, this time as chancellor of St. Albans.

Part of the curtilage of the parish church was needed to provide vehicular access to the former parsonage.  The parsonage had been sold for development.  The land involved had never been used for burials, but it was apparently a mere five feet from the church.

This time Newsom granted a faculty.  The developer was allowed to use the land for vehicular access (no doubt at a good price), notwithstanding that vehicular access is a secular use.  

The chancellor did not repent of his earlier decision.  His justification for granting the faculty in Bushey Heath was that the curtilage had not been consecrated.  If the curtilage had been consecrated, a secular use of it would presumably not have been permitted.  This decision, of course, reinforces the notion that consecration confers a legal ‘status’ on land, independent of use.  

The outcome of this case law, from Bideford to Bushey Heath, is therefore as follows: 

(1) a consecrated burial ground may be subject to a secular use, even if this involves the disturbance of bodies buried therein 

(2) unconsecrated curtilage may also be put to secular use, even though in extremely close proximity to a church 

(3) but any secular use of a vacant piece of consecrated land is forbidden.

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