A PRIVATE individual has been given permission to perform restoration work on a churchyard war memorial in Nottinghamshire, the owner of which couldn’t be identified. The faculty for the work was granted Consistory Court of the diocese of Southwell & Nottingham.
The war memorial, within the churchyard of St Nicholas’s, Tuxford, is in remembrance of the boys of Tuxford lost within 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 value £163.
After the Second World War, the names of 5 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 current application acting in her personal capability, applied for a school to undertake work on the memorial, mainly to scrub it up and repaint the lettering in order to make it readable. The DAC didn’t 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 all other property, by the final law concerning ownership and prohibiting interference with ownership and the rights of ownership, carrying civil and criminal sanctions.
Second, because the memorial was listed, the law referring to work on listed buildings applied to it.
Third, because the memorial was on consecrated land within the churchyard, it was governed by ecclesiastical law, particularly the college jurisdiction, and Mrs Griffin’s petition needed to comply with the procedural rules applicable. But ecclesiastical law was a part of the law of the realm, and the court needed to have regard to the opposite relevant elements of that law.
The general position was that no one was entitled to interfere with property that they didn’t own, except with the consent of the owner. Mrs Griffin didn’t own the memorial, and didn’t say that she had the consent of the owner. Even if a school was granted, if she undertook the work without the owner’s consent she could be liable to a claim for damages, or possibly a charge of criminal damage.
Those principles applied even when the property was considered a community or cultural asset. If a crucial listed constructing was falling into disrepair, even the local authority couldn’t simply move in and undertake works on it, aside from emergency work to stave off danger. It could issue notices to compel the owner to do the work, nevertheless it couldn’t 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 establish because, unlike most things attached to a constructing or piece of land, they didn’t fall into the identical ownership because the constructing or land. A memorial remained the property of the person or individuals who erected it while they were alive, and, after their death, the memorial belonged to the heirs at law of the person or individuals commemorated.
If a one that had no claim to the ownership of a monument intended to do work on it, the start line was to find the owner, if that might be done. “Although the law was of ancient origin,” the Chancellor said, “it applied today due to 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 school if the owner “can’t be found after reasonable efforts to seek out her or him have been made”.
Those assisting Mrs Griffin had done “sterling work within the frustrating task” of trying to determine the ownership of the war memorial, the Chancellor said. It appeared that the associated fee of the memorial was funded by individual donations and subscriptions, raised on various occasions as much as and including the dedication service on 27 November 1921, after which there was still a small deficit.
There should have been some form of organising committee to gather the cash 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 within the Archdeacon of Southwell’s address on the dedication service, reported within the Redford, Gainsborough and Worksop Times, of two December 1921, when he “begged the officials of the Church to see that the memorial, which bore the names of those that had passed to their rest, was kept in perfect order, and that the names . . . should be hallowed for evermore”.
The Chancellor said that, although those words “perhaps sought to impose an ethical duty on the church authorities”, they weren’t sufficient to vest the memorial in church ownership, and, in any event, “the memorial was not the Archdeacon’s to present away”.
The Chancellor was satisfied that Mrs Griffin had “done what section 66 [of the 2018 Measure] makes crucial”: reasonable efforts had been made to seek out the owner of the memorial, and, despite those efforts, the owner couldn’t be found. The Consistory Court due to this fact had jurisdiction to grant the college, 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 make sure that Mrs Griffin, who was acting personally in in search of the college, was fully aware of the responsibilities, practical and legal in addition to financial, that she had assumed. The Registrar had had a wholly satisfactory response to the inquiries made. The PCC, although unwilling to initiate the method for restoration of the memorial, had indicated that 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 every one the prices were said to be going to be covered by Tuxford Community Events. Mrs Griffin had, nevertheless, expressly accepted that she took “full responsibility”.
Bearing in mind that “within the absence of any motion by either the PCC or the District Council itself, it [was] difficult to see that the memorial might be restored”, the Chancellor concluded that Mrs Griffin had sufficient standing to bring the petition in her personal capability, and she or he was granted a school to undertake the work.
The proposed work was not more likely to affect the character of the memorial as a constructing of special architectural or historical interest, the Chancellor ruled; so the DAC was not obliged to seek the advice of the local planning authority. No work was to start, nevertheless, until the local planning authority had definitively advised in writing that listed constructing consent was not required.
