Re Welford Road Cemetery, Leicester [OT]
| Jurisdiction | England & Wales |
| Judgment Date | 14 October 2006 |
| Date | 14 October 2006 |
| Court | Arches Court |
COURT OF ARCHES
Before Miss Sheila Cameron, QC, Dean of the Arches, Mr David Turner, QC, Chancellor, and Mr Mark Hill, Chancellor
IT WOULD be highly unusual for a chancellor to afford specific relief to someone who had not sought it.
The Court of Arches of Canterbury so stated when allowing the appeal by the petitioners, Miss Lisa Handy, the bereavement service manager of the burial authority, Leicester City Council, and the Rev Howard Cocks, the rural dean of Leicester, against the decision of Mr James Behrens, Chancellor (The Times February 15, 2006).
The chancellor had (i) refused to grant a confirmatory faculty, (ii) directed the burial authority to reinstate and repair to a safe condition all the memorials in the consecrated part of the cemetery, not just those of the parties opponent, that had been laid flat, save where the owners wished to do so themselves, and (iii) granted a faculty for future works conditional upon the repair and reinstatement work.
The petitioners challenged the restoration order in terms of procedure and jurisdiction. The opponents, some 35 members of the Polish community whose relatives' memorials had been laid flat, resisted that part of the appeal relating to the chancellor's order for reinstatement and repair of memorials commemorating their relatives.
Mr Andrew Sharland for the petitioners; Mr Stanley Best for the parties opponent.
THE DEAN OF THE ARCHES, giving the judgment of the court, said that the power conferred on a chancellor to make a restoration order under section 13(5) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1) applied to churches and churchyards and not to the consecrated part of a local authority cemetery.
A chancellor did, however, have a general power under section 12 of the 1991 Measure to require work to be done as a condition of a faculty provided that it was reasonable to order a party to do so. The chancellor had therefore erred in so far as he exercised power under section 13(5) ordering a restoration of the memorials by the council.
The chancellor had further erred in law when deciding that the risk of unlawful discrimination meant that the grant of any faculty had to apply to all gravestones laid flat and not just the graves of the parties opponent.
That was: first, because the Poles were not a racial or ethnic group, and, second, that article 14 of the European...
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