The otherwise unremarkable case Re St Lawrence Toot Baldon [2023] ECC Oxf 10 concerning a confirmatory faculty for an unauthorized ledger stone explored the issue of “sufficient interest” in faculty petitions – an issue on which there was “surprisingly little authority”.

The Ecclesiastical Law Association summary stated:

“The petitioner’s late wife’s ashes had been interred in the grave of her mother in 2019. The petitioner had obtained the approval of the Team Vicar to the laying of a ledger stone in memory of his wife on the grave. The stone was not one which was authorised under the churchyard regulations…The Chancellor decided…to allow the stone to remain, as the petitioner had “the full support of the minister, the churchwardens, the PCC, the DAC, and the petitioner’s family, and for powerful pastoral considerations”.

In response to the Public Notice concerning the confirmatory faculty [9], [10], a couple [referred to as “the objectors”] identified certain issues regarding the memorial, although they stressed that these observations did not constitute a formal objection [11]. Photographs of the memorial are reproduced at the end of the judgment.

The provisional view of Hodge Ch communicated to the objectors stated:

“[13]. … you are not ‘persons interested’ in this petition for the purposes of rule 10.1 of the Faculty Jurisdiction Rules 2015 (as amended). However, this may not matter because you state that you ‘are not raising a formal objection to this non-compliant memorial stone’ and that you ‘believe that the final decision should rest with the Church Authorities, taking into account all the relevant facts and background details’,”

and with regard to the applicable law:

“[19]. …The Churchyard Regulations…apply to this churchyard…The memorial installed by the petitioner to commemorate his late wife clearly exceeds these dimensions by a substantial margin: it is not a ‘near miss’…this memorial would also exceed the longest permitted dimension of 450mm for a cremated remains tablet proposed in the Report of the Working Party into Churchyard Memorial Regulations…”.

The Chancellor reviewed the case law subsequent to Re St. Giles Exhall [2021] EACC 1 in relation to faculty applications where there had been non-compliance with the relevant Churchyard Regulations [20] to [24], viz. Re St Mary, Great Chart [2022] ECC Can, Re Christ Church, Harwood [2002] 1 WLR 2055, and Re St. Denys Stanford in the Vale [2019] ECC Oxf 1. With regard to the standing of the objectors,

“[26]. Strictly, the sufficiency of their interest to object to this petition does not fall for decision because, in their initial letter of objection, they state that they are ‘not raising a formal objection…’ [They] have not elected to become parties opponent; and I propose to take their observations, and representations, into account when reaching my decision irrespective of their formal standing to object to this faculty petition. Nevertheless, since I have identified the sufficiency of their interest as a potential issue, I consider that I should address it.

[27]. [They] are neither resident in the parish, nor do their names appear on the church electoral roll. They are not regular attenders at church services at St Lawrence, but worship in their own parish (where their names do appear on the church electoral roll), some seven miles away. They are not relations of the deceased; and there is no evidence that they ever paid for, or contributed to the cost of, her memorial. Their interest in this faculty petition is that they are visitors to this churchyard, and [one of them] was a great friend of the deceased…playing what she describes as ‘a key role’ in organising the thanksgiving service for her life…”

The objectors are clearly not ‘interested persons’ within the meaning of any of paragraphs (a) to (g) of rule 10.1 (1) of the Faculty Jurisdiction Rules 2015 (as amended); but they feel that they are ‘interested persons’ within paragraph (h), which comprises ‘any other person or body appearing to the chancellor to have a sufficient interest in the subject matter of the petition’”.

Noting that there was “surprisingly little authority on the scope of the persons having ‘a sufficient interest in the subject matter of the petition’ for the purposes of FJR 10.1 (1) (h)” [any other person or body appearing to the chancellor to have a sufficient interest in the subject matter of the petition], Hodge Ch. cited with approval Re Christ Church Spitalfields, Spitalfields Open Space Ltd v The Governing Body of Christ Church Primary School [2019] EACC 1 and Re St. Nicholas Leicester [2023] ECC Lei 1.

 [30]. The actual facts of [Re St. Nicholas Leicester] are miles from those of the present. But what is of relevance is the reliance that the Deputy Chancellor placed (at paragraph 9) upon observations from the judgment of Lord Reed, in the Supreme Court, in Walton v The Scottish Ministers [2012] UKSC 44, [2013] PTSR 51 (at paragraph 92) drawing a distinction between ‘the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relates’.

At paragraph 94, Lord Reed also explained that: In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.

“[31]. I bear this guidance in mind. I approach the issue of [the objectors’] standing to object to this faculty petition on its own merits, and as a question primarily of fact and degree. I consider that the nature of the relief sought on this petition – a confirmatory faculty authorising the retention of a non-complaint churchyard memorial – is of critical importance to the issue of sufficiency of interest since FJR 10.1 (1) (h) is expressly directed to ‘a sufficient interest in the subject matter of the petition’… Because of [a] longstanding friendship with the person commemorated by the memorial I cannot regard her as a ‘mere’ – still less as a ‘vexatious’ – ‘busybody’. Nevertheless, I cannot regard the status of a longstanding, and dear, friend, or the making of regular visits to the churchyard, as conferring sufficient interest to entitle that person formally to object to a non-compliant churchyard memorial, however grateful the relevant authorities may be to such a person for having brought that non-compliance to their attention. [italicization in original].

Without formally deciding the point, I recognise that the following classes of person, in addition to those resident in the parish, and those whose names appear on the church electoral roll, may all have a sufficient interest to object to a petition of the present kind, namely: (1) a close relative of the person commemorated by the memorial, (2) the owner of another memorial in sufficient proximity to the memorial in question, and (3) a person who has been refused permission for a similar, non-compliant memorial.

But I cannot regard a regular visitor to the churchyard, or a longstanding friend of the person commemorated by the memorial, or a combination of these two, as having a ‘sufficient interest’ in a petition for a confirmatory faculty authorising the retention of a non-complaint memorial”

In summarizing the case, Hodge Ch. said:

“[34]. I have already made it clear that I consider that the continued presence of this memorial causes a moderate degree of harm to the dignity and orderly environment of this churchyard…Had I been invited to approve this memorial before it was created and installed, I would have declined to do so. However, in the exceptional circumstances of the present case, I am satisfied that the petitioner has demonstrated that it is desirable – or, at any rate, not undesirable – to permit this particular memorial to remain in this churchyard even though it greatly exceeds the dimensions permitted for a ledger stone prescribed by the Churchyard Regulations”.

He concluded by inviting the ministers of churches within the Diocese of Oxford and others charged with authorising churchyard memorials under the delegated powers conferred by the Churchyard Regulations to read the judgment and to bear in mind a number of lessons for the future [38].