A PRIVATE individual has been given permission to carry out restoration work on a churchyard war memorial in Nottinghamshire, the owner of which could not be identified. The faculty for the work was granted Consistory Court of the diocese of Southwell & Nottingham.
The war memorial, in the churchyard of St Nicholas’s, Tuxford, is in remembrance of the men of Tuxford lost in the First World War. It was unveiled on 27 November 1921 by a member of the British Legion, and dedicated by the then Archdeacon of Newark, the Ven. Egbert Hacking. It was designed and made by H. J. Tuttell of Lincoln, and cost £163.
After the Second World War, the names of five who died in that conflict were added under the heading “1939-1945”. The war memorial is Grade II listed in its own right, and St Nicholas’s is Grade I listed.
Emma Griffin, a district councillor, but in the present application acting in her personal capacity, applied for a faculty to undertake work on the memorial, mainly to clean it up and repaint the lettering so as to make it readable. The DAC did not object to that work being approved by the Consistory Court.
The diocesan Chancellor, the Worshipful Mark Ockelton, said that Mrs Griffin’s intention to undertake the proposed work raised diffrent issues in three wholly separate fields of law.
First, the memorial was governed, like any other property, by the general law concerning ownership and prohibiting interference with ownership and the rights of ownership, carrying civil and criminal sanctions.
Second, as the memorial was listed, the law relating to work on listed buildings applied to it.
Third, as the memorial was on consecrated land in the churchyard, it was governed by ecclesiastical law, in particular the faculty jurisdiction, and Mrs Griffin’s petition had to comply with the procedural rules applicable. But ecclesiastical law was part of the law of the realm, and the court had to have regard to the other relevant aspects of that law.
The general position was that nobody was entitled to interfere with property that they did not own, except with the consent of the owner. Mrs Griffin did not own the memorial, and did not say that she had the consent of the owner. Even if a faculty was granted, if she undertook the work without the owner’s consent she would be at risk of a claim for damages, or possibly a charge of criminal damage.
Those principles applied even if the property was considered a community or cultural asset. If an important listed building was falling into disrepair, even the local authority could not simply move in and undertake works on it, except for emergency work to stave off danger. It could issue notices to compel the owner to do the work, but it could not simply take it upon itself to interfere with the rights of the owner as owner.
The ownership of memorials and monuments was often particularly difficult to ascertain because, unlike most things attached to a building or piece of land, they did not fall into the same ownership as the building or land. A memorial remained the property of the person or persons who erected it while they were alive, and, after their death, the memorial belonged to the heirs at law of the person or persons commemorated.
If a person who had no claim to the ownership of a monument intended to do work on it, the starting point was to discover the owner, if that could be done. “Although the law was of ancient origin,” the Chancellor said, “it applied today because of section 66(5) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018. It was not obscure or antique law.” Section 66(1) also gave the Consistory Court power to grant a faculty if the owner “cannot be found after reasonable efforts to find him or her have been made”.
Those assisting Mrs Griffin had done “sterling work in the frustrating task” of trying to establish the ownership of the war memorial, the Chancellor said. It appeared that the cost of the memorial was funded by individual donations and subscriptions, raised on various occasions up to and including the dedication service on 27 November 1921, after which there was still a small deficit.
There must have been some sort of organising committee to collect the money and place the order with the stonemasons, but no records had come to light, and there was no reason to think that it had any corporate or continuing existence. In particular, the sources uncovered contained no suggestion that the memorial was the project either of the church community or of the local authority.
The only potentially relevant material that had come to light consisted of the words in the Archdeacon of Southwell’s address at the dedication service, reported in the Redford, Gainsborough and Worksop Times, of 2 December 1921, when he “begged the officials of the Church to see that the memorial, which bore the names of those who had passed to their rest, was kept in perfect order, and that the names . . . must be hallowed for evermore”.
The Chancellor said that, although those words “perhaps sought to impose a moral duty on the church authorities”, they were not sufficient to vest the memorial in church ownership, and, in any event, “the memorial was not the Archdeacon’s to give away”.
The Chancellor was satisfied that Mrs Griffin had “done what section 66 [of the 2018 Measure] makes necessary”: reasonable efforts had been made to find the owner of the memorial, and, despite those efforts, the owner could not be found. The Consistory Court therefore had jurisdiction to grant the faculty, the Chancellor ruled.
The faculty was not being sought by the incumbent and PCC, or by any official body. The Chancellor said that he was anxious to ensure that Mrs Griffin, who was acting personally in seeking the faculty, was fully aware of the responsibilities, practical and legal as well as financial, that she had assumed. The Registrar had had an entirely satisfactory response to the inquiries made. The PCC, although unwilling to initiate the process for restoration of the memorial, had indicated that they had no objection to the matter being promoted by Mrs Griffin, and that there was a level of support from the secular authorities in that all the costs were said to be going to be covered by Tuxford Community Events. Mrs Griffin had, however, expressly accepted that she took “full responsibility”.
Bearing in mind that “in the absence of any action by either the PCC or the District Council itself, it [was] difficult to see that the memorial could be restored”, the Chancellor concluded that Mrs Griffin had sufficient standing to bring the petition in her personal capacity, and she was granted a faculty to undertake the work.
The proposed work was not likely to affect the character of the memorial as a building of special architectural or historical interest, the Chancellor ruled; so the DAC was not obliged to consult the local planning authority. No work was to commence, however, until the local planning authority had definitively advised in writing that listed building consent was not required.
