Re: St Peter and St Paul, Scrayingham (York Consistory Court; Coningsby Ch. October 1990)

The incumbent and churchwardens sought a faculty for the erection of a fence around the churchyard. The parties opponent (who did not appear at the hearing) contended that the proposed line of the fence did not follow the true boundary of the churchyard but would be on land occupied by them. The chancellor held that he had jurisdiction to determine the line of the boundary, and that it was necessary to establish where the boundary lay before granting a faculty because the Court did not have the power to allow the alienation of curtilage so as to provide additional land for an adjacent property. Upon finding on the facts where the boundary ran, the Chancellor caused stakes to be placed in the ground so as to mark it, and granted a faculty for the erection of a fence along that line.

For aesthetic reasons a hedge was to be planted beside the fence. An order for costs was made against the parties opponent, who had actively opposed the petition.

The Court fees and disbursements were to be paid in the first instance by the petitioners (who were entitled to an indemnity from the parties opponent). The Archdeacon of York having become a petitioner after the resignation of the incumbent, it was reasonable that he rather than the churchwardens should pay the Court fees and disbursements, because the diocese had an interest in the proper resolution of disputes of this nature.

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(1991) 2 Ecc LJ 229-230