Court gives memorial tomb priority over encroaching tree

22 May 2020

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ONE of the principal functions of maintaining a churchyard is to protect the memorials and remains whose last resting place is within it. Trees are also an important part of a churchyard, and, in most cases, trees and the memorials live happily together. But, if there had to be a choice between the two, the tree would have to be felled if that was necessary to preserve a churchyard memorial.

The Consistory Court of the diocese of Norwich so ruled when granting a petition seeking to fell a holly tree in the churchyard of St Mary’s, Haddiscoe, even though the tree was not unviable and required only arboreal management.

The problem was that its roots were damaging a table-top memorial tomb dated 1791, containing the remains of John Elliott, his wife, Suzanne Elliott, and their three-year old granddaughter, Martha. Living descendants of the Elliott family did not want the tomb disturbed.

In practical terms, there were only two realistic proposals, so far as the chartered foresters and consulting arboriculturists were concerned: namely, the removal of the tomb or the felling of the tree.

Objectors to the proposal said that the tree to be felled was “the nicest holly tree”, and that it enhanced the appearance of the churchyard. They argued that a 100-year-old tree should be protected over and above gravestones, and invited the Consistory Court to take “a more environmentally aware approach”.

The Chancellor, the Worshipful David Etherington QC, agreed with the objectors that the tree was not diseased or unviable, and it was an attractive tree. He also held many of the objectors’ sentiments as to its place in an English churchyard. But it was “its relationship with the memorial” that was in issue. The question was whether the preservation of the tomb and the remains in situ should take precedence over the fate of the holly tree.

The objectors’ reference to “some grave stones” somewhat understated the true position, the Chancellor observed. The remains in that distinctive table-top memorial had lain there undisturbed since 1791, and contained the mortal remains of three people, including a three-year-old. The senior living member of the family, himself elderly and in frail health, found the thought of disturbing their remains very distressing.

To preserve the tree, it would be necessary to try to move the memorial and exhume the remains of the three people buried there. Exhumation was only very rarely granted by the Consistory Court, and then only in exceptional circumstances. Burial according to the Christian faith was both final and permanent within the capabilities of human beings to order things. Exhumation of remains buried 229 years ago might pose many difficulties in practice, even if it were acceptable in principle.

The Chancellor said that he had found this a “painful decision” and was “very conscious of the beauty and importance of trees in general and the feeling for this particular one”. But he had come to the “firm conclusion” that the correct decision was to accede to the petitioners’ prayer to have the holly tree felled, to preserve the viability of the memorial in situ. The petitioners were acting consistently with their duties and responsibilities in maintaining the churchyard.

The Chancellor also granted permission to fell an ash tree that had poor vitality and wood-boring-insect holes on the main stem. There was a proposal to reduce the crown of two other healthy and viable holly trees, to allow sufficient space for a cherry tree that stood between them to grow. An objector questioned “such drastic surgery”, and the Chancellor considered that observation to have force. Therefore, the petitioners and their consultants were asked to consider “more modest proposals” to prune the two trees, making the holly trees, not the cherry tree, the priority so that the Chancellor could consider an alternative proposal.

It was a condition of the permission granted that, to reduce any loss of biodiversity, suitable replacement trees be planted for those to be felled, in locations advised by the arboreal consultants.

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