Re: Hopton Cangeford (Hereford Consistory Court; Henty Ch. 3 August 1990)
A redundant parish church was appropriated for use as a residence and craft workshop. Neither the Order in Council made under the Pastoral Measure 1983 nor the conveyance by the Church Commissioners to the purchasers (the petitioners) granted rights of drainage through the churchyard, which was not sold and remained subject to the faculty jurisdiction. The petitioners sought a faculty for the installation of (i) a septic tank and associated facilities and (ii) a water supply pipe in the churchyard. In granting a faculty the Chancellor found as follows:
- There were to be no more burials (other than three in reserved spaces);accordingly it was possible to adopt a more liberal attitude than had the churchyard been a burial ground for a thriving parish.
- The petitioners were under the impression, encouraged by the Diocesan Office and to some extent by the Church Commissioners, that there were to be rights of drainage and a right to install a septic tank. The duty of the Church was to honour the intention of the parties that there should be such facilities.
- The water pipe and the drainage pipe presented no difficulty in law. The septic tank, which could not reasonably be regarded as a building was to be treated as within the second category of justified exceptions, set out in Re St. John's, Chelsea (1962) 1WLR 706, to the general rule that a faculty could not be granted over a churchyard other than relating to the purpose for which it was consecrated. (The second category exception permitted the throwing of small parts of a churchyard into a highway or the granting of other rights of use in the nature of way-leaves).
- The appropriate course was to permit the incumbent to grant a licence for a term of 125 years at an annual fee of £1.
(1991) 2 Ecc LJ 131-132